American Indian Sovereignty and Law: An Annotated Bibliography (Native American Bibliography Series)

Native American Bibliography Series Advisory Board: Brenda Child, University of Minnesota, Minneapolis • R. David Edmunds, Texas Christian University • Arlene B. Hirschfelder, Teaneck, N.J. • Karl Kroeber, Columbia University • A. Lavonne Ruoff, University of Illinois, Chicago • Emory Sekaquap-tewa, University of Arizona • Virginia Driving Hawk Sneve, Flandreau, S.D. • Clifford E. Trafzer, University of California, Riverside General Editor: Michael Tate, University of Nebraska at Omaha No. No. No. No. No.

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No. 6 No. 7 No. 8 No. 9 No. 10 No. 11 No. 12 No. 13 No. 14 No. 15 No. 16 No. 17 No. 18 No. 19 No. 20 No. 21 No. 22 No. 23 No. 24 No. 25 No. 26 No. 27 No. 28 No. 29

Bibliography of the Sioux, by Jack W. Marken and Herbert T. Hoover. 1980 Biobibliography of Native American Writers, 1772–1924, by Daniel F. Littlefield, Jr., and James W. Parins. 1981 Bibliography of the Languages of Native California, by William Bright. 1982 A Guide to Cherokee Documents in Foreign Archives, by William L. Anderson and James A. Lewis. 1983 A Biobibliography of Native American Writers, 1772–1924: Supplement, by Daniel F. Littlefield, Jr., and James W. Parins. 1985 Bibliography of the Osage, by Terry P. Wilson. 1985 A Guide to Cherokee Documents in the Northeastern United States, by Paul Kutsche. 1986 In Pursuit of the Past: An Anthropological and Bibliographic Guide to Maryland and Delaware, by Frank W. Porter III. 1986 The Indians of Texas: An Annotated Research Bibliography, by Michael L. Tate. 1986 Bibliography of the Catawba, by Thomas J. Blumer. 1987 Bibliography of the Chickasaw, by Anne Kelley Hoyt. 1987 Kinsmen through Time: An Annotated Bibliography of Potawatomi History, by R. David Edmunds. 1987 Bibliography of the Blackfoot, by Hugh A. Dempsey and Lindsay Moir. 1989 The Upstream People: An Annotated Research Bibliography of the Omaha Tribe, by Michael L. Tate. 1991 Languages of the Aboriginal Southeast: An Annotated Bibliography, by Karen Booker. 1991 Yakima, Palouse, Cayuse, Umatilla, Walla Walla, and Wanapum Indians: An Historical Bibliography, by Clifford E. Trafzer. 1991 The Seneca and Tuscarora Indians: An Annotated Bibliography, by Marilyn Haas. 1994 The Native American in Long Fiction: An Annotated Bibliography, by Joan Beam and Barbara Branstad. 1996 Indigenous Languages of the Americas: A Bibliography of Dissertations and Theses, by Robert Singerman. 1996 Health of Native People of North America: A Bibliography and Guide to Resources, by Sharon A. Gray. 1996 A Bibliography of the Indians of San Diego County: The Kumeyaay, Diegueño, Luiseño, and Cupeño, by Phillip M. White and Stephen D. Fitt. 1998 Indian Slavery, Labor, Evangelization, and Captivity in the Americas: An Annotated Bibliography, by Russell M. Magnaghi. 1998 Diné Bibliography to the 1990s: A Companion to the Navajo Bibliography of 1969, by Howard M. Bahr. 1999 Native Americans in the Saturday Evening Post, by Peter G. Beidler and Marion F. Egge. 2000 The Native American in Short Fiction in the Saturday Evening Post: An Annotated Bibliography, by Peter G. Beidler, Harry J. Brown, and Marion F. Egge. 2001 The Shawnee Indians: An Annotated Bibliography, by Randolph Noe. 2001 The Native American in Long Fiction: An Annotated Bibliography, supplement 1995–2002, by Joan Beam and Barbara Branstad. 2003 The Pawnee Nation: An Annotated Research Bibliography, by Judith A. Boughter. 2004 American Indian Sovereignty and Law: An Annotated Bibliography, edited by Wade Davies and Richmond L. Clow. 2009

American Indian Sovereignty and Law An Annotated Bibliography

Edited by Wade Davies Richmond L. Clow Native American Bibliography Series, No. 29

The Scarecrow Press, Inc. Lanham, Maryland • Toronto • Plymouth, UK 2009

SCARECROW PRESS, INC. Published in the United States of America by Scarecrow Press, Inc. A wholly owned subsidiary of The Rowman & Littlefield Publishing Group, Inc. 4501 Forbes Boulevard, Suite 200, Lanham, Maryland 20706 www.scarecrowpress.com Estover Road Plymouth PL6 7PY United Kingdom Copyright © 2009 by Wade Davies and Richmond L. Clow All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording, or otherwise, without the prior permission of the publisher. British Library Cataloguing in Publication Information Available Library of Congress Cataloging-in-Publication Data American Indian sovereignty and law : an annotated bibliography / edited by Wade Davies, Richmond L. Clow. p. cm. — (Native American bibliography series ; 29) Includes bibliographical references and index. ISBN-13: 978-0-8108-6235-7 (cloth : alk. paper) ISBN-10: 0-8108-6235-2 (cloth : alk. paper) ISBN-13: 978-0-8108-6236-4 (ebook) ISBN-10: 0-8108-6236-0 (ebook) 1. Indians of North America–Legal status, laws, etc.–United States–Bibliography. 2. Indians of North America–United States– Government relations–Bibliography. I. Davies, Wade, 1969– II. Clow, Richmond L. KF8201.A1A44 2009 016.3427308'72–dc22 2008030685

⬁ ™ The paper used in this publication meets the minimum requirements of American National Standard for Information Sciences—Permanence of Paper for Printed Library Materials, ANSI/NISO Z39.48-1992. Manufactured in the United States of America.

Contents

Editor’s Foreword

vii

Introduction

ix

1

Overviews of Law and Sovereignty

1

2

Twentieth-Century Sovereignty Overviews—Tribally Specific

23

3

Treaties, Land Sales, and Treaty Rights

31

4

Nineteenth-Century Removal and Resettlement

51

5

Reservation Policy: Establishment, Diminishment, and Disestablishment

63

6

Land Allotment and Land Consolidation

69

7

Twentieth-Century Federal Indian Policy

79

8

Indian New Deal

87

9

Sovereign Status, Termination, and Recognition

95

10

Self-Determination and Tribal Assumption of Federal Programs

107

11

Twentieth-Century Activists and Reformers

111

12

Trust Status, Guardianship, and Trust Funds

121

13

Federal Plenary Power

127

14

Tribal Governance, Constitutions, and Leadership

131

15

Tribal–State Relations

153

16

Sovereign Immunity

157

17

Tribal Law and Legal Codes

161

18

Tribal Courts and Dispute Resolution

169

19

Federal and State Courts

179

20

Marshall Trilogy

189

21

Federal–State–Tribal Court Relations

193

22

Attorneys, Legal Aid, and Law Associations

201

23

Law Enforcement Agencies

207

24

Criminal Justice and Prisoners’ Rights

211 v

vi

Contents

25

Jurisdiction Overviews and Regulatory Powers

225

26

Criminal Jurisdiction

239

27

Land Law and Property Rights

251

28

Land Claims and the Indian Claims Commissions

269

29

Religious Freedom

289

30

Peyote and the Native American Church

299

31

Sacred Sites Protection

307

32

Cultural Items and Ancestral Remains

317

33

Intellectual Property, Artists’ Protections, Free Speech, and Mascots

335

34

“Indian” Identity, Tribal Enrollment, and U.S./State Citizenship

341

35

Voting and Lobbying

351

36

Civil Rights Legislation, Litigation, and Individual Rights

355

37

Racial Discrimination, Exclusion, and Hiring Preference

363

38

Economic Development and Labor Relations

367

39

Agriculture and Livestock

393

40

Timber Resources

397

41

Water Law

401

42

Fishing, Whaling, Hunting, and Gathering

431

43

Mineral and Oil Rights and Environmental Issues

451

44

Environmental Protection and Natural Resource Management

465

45

Gaming

479

46

Taxation

503

47

Family Law and the Indian Child Welfare Act

517

48

Poverty, Housing, Welfare, and other Social Services

527

49

Health Care: Twentieth-Century Policy and Patient Rights

531

50

Education: Twentieth-Century Policy and Lawsuits

535

51

Alcohol, Drugs, and Tobacco Regulation

539

52

Urban and Off-Reservation Populations

543

53

Women’s Rights and Issues

547

54

Alaska Natives

551

55

International Law, Borders, and Comparative Studies

567

56

Special Topics

577

57

Bibliographies and Research Collections

587

Author Index

591

Subject Index

617

About the Author

635

Editor’s Foreword

In a 1972 address to an audience of scholars and interested laypeople, celebrated Lakota author Vine Deloria, Jr. questioned the continued public fascination with nineteenthcentury topics, most notably the unwarranted focus on military battles between Indians and whites. Deloria further argued that detailed battlefield studies were not the most representative examples of intercultural relations for that era, nor do they speak to the crucial issues confronting Indians and whites today. Fittingly, he called upon historians, anthropologists, and public policy makers to shift their attention to twentieth-century topics, and especially to a host of legal issues that constitute the arena for the “New Indian Wars.” During the ensuing three decades, academicians responded to Deloria’s clarion call for a shift in scholarly efforts. Not surprisingly, Deloria himself earned a law degree from the University of Colorado and subsequently published important books and articles about Native American constitutional rights, sovereignty, and the structure of tribal governments. Journals such as American Indian Law Review, American Indian Quarterly, and American Indian Culture and Research Journal blanketed their pages with pertinent articles, as did periodicals as diverse as Harvard Law Review and Chronicles of Oklahoma. As the numbers of publications exploded to meet the demands of a new generation, so too did the need for welldesigned bibliographical guides that could lead researchers through the growing maze of resources. Authoritative general bibliographies by Francis Paul Prucha, as well as individual volumes in Scarecrow Press’s Native American Bibliography Series and Indiana University’s Newberry Library Center for the History of the American Indian Bibliographical Series, answered these needs in grand fashion, but none of these bibliographies specifically addressed the rapidly expanding sources on federal Indian law and sovereignty issues. Richmond Clow and Wade Davies, both professors of Native American Studies at the University of Montana, have now provided the comprehensive reference tool demanded

by many constituencies. First and foremost, academic researchers will be able to identify and evaluate the published materials that are essential to their future studies. Likewise, attorneys will locate the court cases and interpretive essays that are most relevant to their own legal presentations. Finally, Native American tribes and individual tribal members will find the most pertinent publications that can help them structure social programs, exercise sovereign rights, and promote cultural and economic revival. Annotations throughout the book are detailed and thematic enough that the researcher will be able to understand the nature of the publication beyond what a mere title of a book, pamphlet, or article can provide. The extensive Subject Index also provides individual citation numbers that will lead researchers into related categories so that no source has to be repeated multiple times when it fits into several chapters of the book. The sheer magnitude of research required for this massive reference work and the great care with which Drs. Clow and Davies have prepared the citations guarantee the utility and longevity of this unique work. Their Herculean efforts undoubtedly will be warmly received by all the constituencies for whom the work was intended. Michael L. Tate Professor of History and Native American Studies University of Nebraska at Omaha

vii

Introduction

This project began years ago as an idea to create an annotated bibliography on tribal sovereignty and its inseparable connections to federal Indian law. The importance of these two concepts in the modern era emerged in the 1959 Supreme Court decision Williams v. Lee, wherein the court decided that the state of Arizona did not have jurisdiction over a federally licensed trading operation. The Navajo courts were deemed to be the proper forum for a dispute between the non-Navajo trader and Navajo clients, and the high court thereby reaffirmed tribal sovereignty over reservation affairs and made tribal courts integral to the American judicial landscape. Following that decision, questions concerning the scope of tribal sovereignty have multiplied. Many jurisdictional issues that stemmed from tribal treaties, tribal council decisions and federal legislation have not been resolved, much to the detriment of Native Americans. Disputes among tribes, states, counties, and the federal government have since wended their way through the courts, and through each sovereign’s legislative bodies, as various parties have sought to determine the extent of tribal sovereignty. The American nation is a republic with three distinct governments that sometimes work together and at other times work against each other. The state governments, and their county and city subdivisions, compose one category of government; the United States Congress and the federal court system comprise a second; and the various tribal councils and courts compose a third, and no less important, category. In this republican structure, the sovereigns, each with different self-interests, clash over definitions of tribal sovereignty. Tribal sovereignty is a fluid and multi-faceted concept. This bibliography includes many entries related to differing periods of tribal sovereignty that reveal how difficult a concept it is to define. In general, tribal sovereignty is an inherent right of tribal governments to create their own forms of government and common law and to develop their own economic programs. Tribes also possess the right of home rule, free from outside interference in their governing structures and political and judicial decisions. The United States has

often recognized this right to home rule in treaties, while states have not, even though the Commerce Clause of the United States Constitution specifically delegated to the central government the right to regulate trade between the United States and tribal nations. American Indian sovereignty has long been assaulted by the states in an expanding American nation. This collective assault has challenged tribes, forcing Indian leaders to look to the courts to uphold federal treaty protections. The treaty clause of the U.S. Constitution provides tribes with a handhold in the U.S. government. The Cherokee Nation compelled Chief Justice John Marshall to act in 1831, when he articulated the unique relationship that treaties forged between tribal nations and the United States. His decision in Cherokee Nation v. Georgia (1831) also created a trust relationship that permitted the United States to make inroads into tribal sovereignty, thus eclipsing tribal diplomatic authority. The federal government likewise endeavored to reduce tribal sovereignty during its nineteenth-century effort to assimilate American Indians. During the mid- to latetwentieth century, Congress returned to strengthen tribal sovereignty through the Indian Reorganization Act (1934) and the Self-Determination and Indian Education Assistance Act (1975), but then changed course again by passing the Indian Gaming Regulatory Act (1988) which required tribes to sign gaming compacts with states that permitted state regulation of tribal Class III games of chance. These fluctuating federal policies provided both defenses of and assaults against tribal home rule, and often opened doors for states, non-Indian U.S. citizens and even tribal members to attack tribal sovereignty in the courts of different sovereigns. This bibliography also focuses on the often contradictory intersection where Indian law runs counter to tribal law, the former comprising laws created and enforced by federal and state authorities that affect tribal people, and the latter constituting laws enacted and enforced by tribal governments and tribal courts. The complex conflicts among sovereigns over the extent of tribal sovereignty forced the scope of this

ix

x

Introduction

bibliography to go beyond mere studies of tribal sovereignty to include federal policy and law sources, as well as entries that articulate state positions. Because the concepts are intertwined, we realized that researchers would benefit from a bibliography that considered tribal sovereignty, federal Indian law, and tribal law in conjunction. The subjects of American Indian sovereignty and law are inescapably complicated, confusing, and contentious, not only for tribes, states, and federal officials, but also for attorneys, judges, and scholars. The hope is that this bibliography will reveal how members of each of these groups have attempted to navigate the confusion from different perspectives. This is intended to serve as a research tool that will help everyone attain a better understanding of these issues. There is no delusion that a common understanding of tribal sovereignty and Indian law will create a consensus among contending parties as to how to move forward in seeking conflict resolutions. Nor is it the place of this work to judge which perspectives are philosophically or legally right and which are wrong. We have, as best as possible, avoided advocacy in the annotated entries. The bibliography has two primary purposes. Because it is intended as a resource for tribal, state, and federal leaders, judges and attorneys seeking secondary sources relevant to current legal and sovereignty issues, it is primarily focused on the years 1900 to the present. The bibliography is also intended to serve as a general resource for scholars and students of American Indian history and law. For this reason, and recognizing that current issues are always grounded in history, many sources are included that focus on the nineteenth century or earlier. One goal was to make this resource as comprehensive as possible, but also limit its size and scope in order to keep it focused and manageable for readers. Given that every aspect of life relates to issues of law and/or sovereignty, and given the fact that to meet the above-stated purposes, it would be necessary to include both contemporary and historical sources, this could easily have become an annotated bibliography of everything ever written about American Indians. It was necessary, therefore, to make some compromises regarding what to include and not to include as topic chapters and entries. We decided that it was best to interpret sovereignty and law broadly, and therefore include many topical chapters. Doing so, however, has forced us to omit certain topics and types of sources. The chapters on removal policy, reservation policy, and treaties, for instance, are included because current land, resource and religious claims can only be understood if past land losses and treaty agreements are understood. However, other federal policy studies focusing on the nineteenth century and earlier are excluded, as are entries that focus on the internal management of federal agencies charged with enforcing policies. Within chapters, we have had to make similar decisions. The chapter on criminal justice, for example, spotlights law enforcement procedures, prosecution, and

prisoners’ rights but excludes the many sources dealing with the causes and social consequences of crime. Although we have attempted to be as comprehensive as possible with the majority of the topical chapters, some are selective. The chapters on health and education, for example, include many sources directly related to contemporary law, but only selected sources providing background on past and contemporary policy-making. This bibliography does not deal directly with indigenous people in Canada or Mexico, but does include sources related to international law and comparative studies that include Native Americans in the United States. Although articles and books designed as histories of specific tribes almost always deal with issues of law and sovereignty, their numbers were simply too great to allow us to include them all. Therefore, this bibliography only contains tribal histories concentrating on the twentieth century. A selected number of overviews of American Indian history are found herein, but the bibliography does not attempt to be comprehensive in this regard. At the inception of this project, it was decided that this bibliography would only include published scholarly sources, and few exceptions were made to that rule. Primary sources and unpublished documents, such as master’s theses and dissertations, are not included, nor are newspaper articles or articles from news magazines. Federal, state, and tribal government documents and organizational newsletters are also excluded. We have grouped entries dealing with similar issues into topical chapters. We did so to assist researchers interested in finding sources and schools of thought on those specific issues. When a single source deals extensively with more than one issue, we have placed it in the chapter where its majority content best fits. If an entry pays equal attention to two distinctly different issues (e.g., water law and land rights) we have simply placed it based on the first topic listed in the title. Of course, researchers interested in finding all of the sources dealing with a specific topic should use the subject index. One chapter is set aside specifically for sources dealing with Alaskan Native issues. Any of these sources could be properly placed in other chapters dealing with special topics, but the history of governmental policies affecting these groups, and in some cases the legal and sovereignty issues, differ enough from those of indigenous occupants of other states to warrant the creation of a separate chapter. It is hoped that this is the most accessible arrangement for the majority of readers. A multi-part approach was employed to find as many relevant secondary sources as possible. None of these methods proved perfect, but we believe that we were able to find the majority of published sources fitting our criteria for inclusion. Of course, we could not hope to find all of them and we apologize to any authors whose sources we would have included had we known of their existence.

Introduction

For law review articles, the print holdings in the Pritzker Legal Research Center, at Northwestern University, Chicago, were combed. The journal titles and books were taken from the shelves and the table of contents and indexes were examined. A similar approach was used for other scholarly journals and books. We further consulted the stacks at the University Library at Evanston as well as at the Jameson Law Library and Mansfield Library at the University of Montana. Reading the citations and bibliographies of books and articles we annotated proved productive. Hundreds of sources were cited by other authors specializing in their respective fields, that general bibliographies and databases do not list. Selected print bibliographies were consulted to find additional sources, including Francis Paul Prucha’s A Bibliographical Guide to the History of Indian-White Relations in the United States (1977) and Indian-White Relations in the United States: A Bibliography of Works Published 1975–1980 (1982). Many of these bibliographies proved very thorough, especially Prucha’s meticulous volumes. But we did not wish to rely solely on other bibliographers’ past work and, of course, these resources were not current. Numerous online secondary source databases were also consulted including, Academic Search Premier, Article First, The Bibliography of Native North Americans, and World Cat. These databases often overlapped, but because of their specific purposes and incomplete coverage, each listed scores of sources the others did not. Sources not available at the above-mentioned libraries were either acquired electronically using JStor, Article First, or other online databases, or delivered to us in Missoula through the Interlibrary Loan service. The Interlibrary Loan staff at the University of Montana skillfully located and delivered more than four hundred books to us, in addition to hundreds of photocopied articles sent to us via email. A few very old and rare sources were unavailable and were regretfully eliminated as we chose not to include any sources that we were unable to annotate. This was the case because we wished to offer a fully annotated bibliography and because we could not always confirm the existence, authorship, or proper publication information of these unexamined books and articles. This project has taken several years to complete and, once we began editing and organizing chapters, it was not practical to include all subsequent publications. Therefore, most sources published since 2005 are regrettably absent. The annotations are intended to help researchers know enough about the arguments and contents of each source to determine its usefulness. Space limitations dictated that the annotations be as concise as possible. Occasionally there are longer annotations for well-known works that are widely used by other scholars, deal with issues requiring more explanation, or cover many topics in extensive detail. The length of an annotation is never meant as a subjective judgment of its quality or validity. Whenever a clear central argument is made in an article or book, we have stated it in the

xi

entry, unless that argument is made implicit by the title of that entry. Each annotation is also intended to provide some factual information about the primary topic under discussion. For example, we have tried to include enough information from those sources dealing with specific court cases to give researchers an idea of what issue the case involved and what the court decided. Redundancy with this information has been avoided, so it is important that the researcher look at related entries in a specific chapter and listed in the index. In some cases, annotations list topics that compose a significant portion of an author’s discussion but are not obvious from the title of the entry. We have not, however, attempted to list all of the subtopics discussed in each source. Edited volumes with entries written by various authors are annotated separately when an introduction or article by the volume editor(s) contributes arguments or factual information related to one of our topical chapters. Other entries in these volumes are annotated separately, except for short commentaries. When an article or book has been published in more than one place, or in more than one edition, we have only listed it once. We have not given the citation for every version. We decided that the annotations should not include our critical comments on the quality of the sources or our judgments on the validity of the authors’ points of view. We have not supplemented annotations with contextual information drawn from outside sources. Any arguments or statements of facts included in an annotation are based on the original author’s contentions. When we have used long quotations or wished to emphasize particularly significant phrasing, we have included quotation marks in the annotations, but we have not done so in instances where we have paraphrased or used short samplings of the authors’ words. In most cases, the original spellings and tribal designations used by the authors have been retained. Any misrepresentation of an author’s arguments, definitions, or statements of fact are unintentional and are our fault alone. Many individuals played roles in compiling this reference work. Many reference staff members unselfishly helped us overcome the unique challenges faced in law library research. At the Pritzker Legal Research Center, Northwestern University, Mary A. Hollerich, Jim McMasters, Heidi L. Kuehl, Pegeen G. Bassett, Kathryn H. Amato, Audrey Huff, and Marcia Lehr located hard to find items. The staff at Northwestern University Library was also helpful. At the University of Montana, Pamela Marek, from Interlibrary Loan, along with Chrissy Birong, David Ketcham and Meghan Stark, worked diligently to locate hard-to-find secondary sources and even found ways to obtain noncirculating materials. Robert Peck, at the Jameson Law Library, was also equal to the task of finding obscure sources, and Stacey Gordon assisted us in identifying important legal reference works. The College of Arts and Sciences at the University of Montana provided a one-year sabbatical that enabled the

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Introduction

research to progress. Colleagues provided encouragement and tested the bibliography’s format. A special thank you is extended to Professor David R. Beck of the Department of Native American Studies at the University of Montana, who listened patiently to ideas and willingly joined in discussions that the inter-disciplinary sources stimulated. Professor Michael Tate, Scarecrow Bibliography editor, along with the board of editors for the bibliography series, must be commended for encouraging the publisher and the compil-

ers to pursue this project to its completion. Without Professor Tate’s advice, encouragement, and skilled editing, this work would not have been possible. Any errors found herein, including incorrect citation information or misspelled authors’ names, are regrettably our fault. Last, but really first, we want to acknowledge Carolyn and Colleen for their never-ending patience, for without their enduring support, this project would never have been completed.

Chapter 1 Overviews of Law and Sovereignty

Overview discusses changing definitions of Indian status, the foundations and principles of Indian law, citizenship and civil rights, congressional authority, and key twentieth-century policies.

1. Abbott, Austin. “Indians and the Law.” Harvard Law Review 2 (November 1888): 167–79. Stresses the positive importance of the Dawes Act and the need to bring justice and peace to the reservations.

6. Baca, Lawrence R. “The Pinta, the Nina, the Santa Maria. . . . And Now Voyager II—An Introduction to Federal Indian Law.” Federal Bar News & Journal 36 (November 1989): 419–21. Since federal law regulates Native Americans, many consider their sovereignty to be limited. There still loom questions about who is an Indian and how tribes determine tribal membership.

2. Alfred, Taiaiake. “Sovereignty.” In Sovereignty Matters: Locations of Contestation and Possibility in Indigenous Struggles for Self-Determination, edited by Joanne Barker, 33–50. Lincoln: University of Nebraska Press, 2005. By the 1980s, tribal members were questioning the utility of pursuing sovereignty within the systems created by the colonizers. Indigenous people should plan for a postcolonial world in which they must “disconnect the notion of sovereignty from its Western legal roots.”

7. Baca, Lawrence R. “Thirty Years of Federal Indian Law.” The Federal Lawyer 52 (March/April 2005): 28–35. Since 1976, the Supreme Court has decided more than 100 tribal cases. These cases are discussed on a decade-by-decade basis to demonstrate the direction that federal Indian law has taken.

3. American Indian Lawyer Training Program. Indian Tribes as Sovereign Governments: A Sourcebook on Federal-Tribal History, Law, and Policy. Oakland, CA: American Indian Lawyer Training Program, Inc., 1988. Examines tribal sovereignty and changes over time with selected documents, such as federal statutes, executive orders, and Supreme Court cases, to illustrate its complexity.

8. Ball, Milner S. “Constitution, Court, Indian Tribes.” American Bar Foundation Research Journal 1987, no. 1 (1987): 1–140. Courts, states, and Congress have expanded their authority over tribes. Still, tribal nations have experienced some victories. Against the backdrop of the 1985 Supreme Court, Ball discusses judicial threats to tribal sovereignty.

4. Amnesty International. United States of America: Human Rights and American Indians. New York: Amnesty International, 1992. Examines individual civil rights, some of which pertain to the tribal community as a whole, such as religious freedom.

9. Barker, Joanne, ed. Sovereignty Matters: Locations of Contestation and Possibility in Indigenous Struggles for Self-Determination. Lincoln: University of Nebraska Press, 2005. Essays on sovereignty by various indigenous authors. Barker discusses the concept’s origins in colonialism, analyzes the Marshall trilogy, and discusses sovereignty’s proliferation and rearticulation in indigenous discourses.

5. Baca, Lawrence R. “The Legal Status of American Indians.” In History of Indian-White Relations, volume 4, edited by Wilcomb E. Washburn, Handbook of North American Indians, general editor William C. Sturtevant, 230–37. Washington, DC: Smithsonian Institution, 1988.

1

2

Chapter 1

10. Barsh, Russel Lawrence. “Indian Policy at the Beginning of the 1990s: The Trivialization of Struggle.” In American Indian Policy: Self-Governance and Economic Development, edited by Lyman H. Legters and Fremont J. Lyden, 55–69. Westport, CT: Greenwood Press, 1994. A pessimistic view of tribal governance and of sovereignty’s future. Much of federal spending on Indian affairs in the 1980s was pork and tribal leaders are “increasingly side stepping the real issues of power in America.” Tribes should focus first on achieving internal legitimacy and solidarity. 11. Barsh, Russel Lawrence and James Youngblood Henderson. The Road: Indian Tribes and Political Liberty. Berkeley: University of California Press, 1980. To justify tribalism and make the concept work, tribes must apply it as part of familiar ideologies. Despite the ratification of treaties creating reservations, the 1887 General Allotment Act, the IRA, and the Indian Self-Determination and Education Assistance Act, Congress and the courts still cannot develop a consistent policy. 12. Bean, Jerry. “The Limits of Indian Tribal Sovereignty: The Cornucopia of Inherent Powers.” North Dakota Law Review 49 (Winter 1973): 303–31. ICRA has an unknown effect on the scope of tribal sovereignty which must be determined before the future boundaries of tribal sovereignty can be plotted. 13. Becker, Herbert. “A Backdrop for Reconciliation.” St. Thomas Law Review 7 (Summer 1997): 757–60. An attorney for the Department of Justice argues that past policies must not guide the present and that casting blame for past misdeeds will hurt tribal efforts to move forward. 14. Biolsi, Thomas. “Political and Legal Status (‘Lower 48’ States).” In A Companion to the Anthropology of American Indians, edited by Thomas Biolsi, 232–47. Malden, MA: Blackwell Publishing, 2004. Reviews tribal sovereignty’s origins, plenary power, inherent tribal sovereignty, and court cases such as Montana. Biolsi argues that “social regulation that exist outside of the” state’s all encompassing authority, might provide greater tribal empowerment, thus creating greater flexibility between sovereigns and defending tribal sovereignty. 15. Blake, James F. “Federal Legal Status of the American Indian.” Rendezvous 11 (Spring 1977): 17–27. Discusses issues of citizenship, wardship, and sovereignty and concludes that tribal legal status is the same as for other Americans, excepting special considerations stemming from treaties and legislation.

16. Blaustein, Albert P. “Contemporary Tensions in Constitutional Indian Law.” Oklahoma City University Law Review 12 (Fall 1987): 469–584. Examines many disputes that tribal governments have had with states and the federal government, including hunting and fishing ordinances, taxation, and criminal authority. 17. Bordewich, Fergus M. Killing the White Man’s Indian: Reinventing Native Americans at the End of the Twentieth Century. New York: Doubleday, 1996. The 1990s is a decade of resurgence of Native American sovereignty and cultural renewal. The resurgence will only lead to complete Indian liberation “if it also leads, eventually, to a more intimate, trusting, and selfconfident participation of Indians in the larger American society.” 18. Bradford, William. “Beyond Reparations: An American Indian Theory of Justice.” Ohio State Law Journal 66, no. 1 (2005): 1–104. Meaningful tribal self-governance can only be attained if U.S. supremacy is rejected. 19. Bronson, Ruth Muskrat. Indians Are People Too. New York: Friendship Press, 1944. The IRA was a step forward, but has not ended federal domination of Indian lives. Education is key to their future, they must have a say in what shape that education takes, and they must direct their own futures. 20. Brown, Ray A. “The Indian Problem and the Law.” Yale Law Journal 39 (January 1930): 307–31. Brown, a member of the Meriam staff, writes that the Indian problem is “one of race conservation and advancement” and until the involved legal problems are understood, no progress can be made on the larger Indian problem. 21. Buchanan, Allen E. “The Right to Self-Determination: Analytical and Moral Foundations.” Arizona Journal of International and Comparative Law 8, no. 2 (1991): 41–50. Speaking of self-determination, which is a fundamental value of all people, does not go far enough, as the concept becomes too abstract. Instead, communities must focus on implementing ways for self-determination to become a reality. 22. Burch, Jordan. “How Much Diversity Is the United States Really Willing to Accept?” Ohio Northern University Law Review 20, no. 4 (1994): 957–79. Since 1980, the high court has heard on average five tribal cases per year and is often hostile toward tribal sovereignty. Traces the history of early tribal litigation and considers ICRA and the growing role of tribal courts.

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23. Cahn, Edgar S. and David W. Hearne, eds. Our Brother’s Keeper: The Indian in White America. New York: New Community Press, 1969. A report by the Citizens’ Advocate Center commenting on contemporary Indian status. Chapters focus on education, land loss, and the Public Health Service. The BIA continues to dominate the Indian world. 24. Canby, William C., Jr. American Indian Law in a Nutshell, Nutshell Series. 4th ed. St. Paul, MN: Thomson/ West, 2004. Widely used and accessible handbook serving as an introduction to federal Indian law for non-lawyers and non-specialists. It begins with an overview and then covers other facets of law topically. Previous editions were published in 1981, 1988, 1998. It includes a table of cases and topical index. 25. Canby, William C., Jr. “The Status of Indian Tribes in American Law Today.” Washington Law Review 62 (January 1987): 1–22. In evaluating tribal sovereignty, the courts do not examine inherent tribal sovereignty as an underpinning of federal Indian law, instead relying on preemption of federal authority over states as a guiding principle. Tribal negotiation with states is the best alternative. 26. Canfield, George F. “The Legal Position of the Indian.” American Law Review 15 (January 1881): 21–37. Removal was an easy solution for dealing with tribes and enabled the nation to escape confronting the founding principle that all men are equal. The best way to deal with quasi-sovereign tribes is to push them toward citizenship. 27. Carillo, Jo, ed. Readings in American Indian Law: Recalling the Rhythm of Survival. Philadelphia: Temple University Press, 1998. Collection of reprinted articles and book excerpts by various authors, as well as court documents, dealing with identity, land claims, repatriation, tribal governance, sacred sites, and religious freedom. 28. Casey, James A. “Sovereignty by Sufferance: The Illusion of Indian Tribal Sovereignty.” Cornell Law Review 79 (January 1994): 404–51. The continual diminishment of tribal sovereignty is the result of the twin failure to clearly define and seek consent in the federal–state–tribal relationships. 29. Champagne, Duane. “Challenges to Native Nation Building in the 21st Century.” Arizona State Law Journal 34 (Spring 2002): 47–54. Globalization, economic development, market forces, and technology are subtle tools of assimilation. Tribal nations have to use their cultural values to defeat these.

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30. Champagne, Duane. “Rethinking Native Relations with Contemporary Nation-States.” In Indigenous Peoples and the Modern State, edited by Duane Champagne, Karen Jo Torjesen, and Susan Steiner, 3–23. Walnut Creek, CA: AltaMira Press, 2005. National aspirations toward diversity and multiculturalism do not necessarily fit with indigenous peoples’ goals, including self-governance. Nation-states must respect indigenous rights. 31. Churchill, Ward. A Little Matter of Genocide: Holocaust and Denial in the Americas, 1492 to the Present. San Francisco, CA: Clear Lights Books, 1997. Genocide is still being carried out against indigenous peoples of the Americas, including the industrial contamination of Native lands. 32. Churchill, Ward. Perversions of Justice: Indigenous Peoples and Angloamerican Law. San Francisco, CA: City Lights, 2003. Collection of essays in which Churchill argues that the U.S. does not have a legitimate right to occupancy of much of its territory; criticizes the ICC as embodying a “travesty of justice”; describes U.S. internal colonialism, pursuit of tribal mineral resources, the nuclear contamination of their lands, FBI repression of AIM; and comments on the war on terrorism. 33. Churchill, Ward. Struggle for the Land: Indigenous Resistance to Genocide, Ecocide and Expropriation in Contemporary North America. Monroe, ME: Common Courage Press, 1993. A series of case-study essays arguing that American and Canadian actions toward indigenous peoples are genocidal and ecocidal. U.S. examples include the taking of Western Shoshone lands in Nevada for nuclear testing, uranium mining and the consequent contamination of western reservations, and the manipulation of tribal governments. Native resistance is highlighted throughout. 34. Churchill, Ward and Glenn T. Morris. “Key Indian Laws and Cases.” In The State of Native America: Genocide, Colonization, and Resistance, edited by M. Annette Jaimes, 13–21. Boston, MA: South End Press, 1992. Annotated list, with brief commentary, of thirty-five significant pieces of legislation and court decisions affecting the American Indian–federal relationship. 35. Clinton, Robert N. “Isolated in Their Own Country: A Defense of Federal Protection of Indian Autonomy and Self-Government.” Stanford Law Review 33 (July 1981): 979–1068. Opposes those who argue for tribal assimilation and the end of tribal governance.

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36. Clinton, Robert N. “Redressing the Legacy of Conquest: A Vision Quest for a Decolonized Federal Indian Law.” Arkansas Law Review 46, no. 1 (1993): 77–159. Federal law created two periods of colonization: the first was the expansion of American domination over tribal lands and resources through Johnson v. McIntosh, and the second was national expansion and assertion of political hegemony over Indians in Indian Country. Law can decolonize the nation’s relations with tribal America. 37. Clinton, Robert N., Nell Jessup Newton, and Monroe E. Price. American Indian Law, Cases and Materials, 3rd ed. Charlottesville, VA: Michie, 1991; second edition 1983; first edition by the Bobbs-Merrill Company, 1973. Over 1,300-page volume, updated since its original publication, introducing and describing important issues in Indian law and reproducing key cases and legislation. Chapters offer overviews of federal Indian law; tribal governance; state claims of authority; property rights; hunting, fishing, and water rights; economic development; taxation; Alaskan Native rights; and international law. 38. Cohen, Felix. Handbook of Federal Indian Law, 2005 edition. LexisNexis, 2005. One of the most widely used references written on Indian law. Updated editions are not simply reprints of the 1942 original, but represent distinct works. The most recent edition begins with a historical survey and legal definitions, then describes tribal governments and tribal law; tribal relations with the federal government and states; civil jurisdiction; taxation; criminal jurisdiction; environmental regulation; ICWA; gaming; liquor laws; civil rights; tribal property; individual Indian property; natural resources; hunting, fishing, and gathering rights; water rights; tribal cultural resources; economic development; and government services. 39. Cohen, Felix. “The Spanish Origin of Indian Rights in the Law of the United States.” Georgetown Law Journal 3 (November 1942): 1–21. Deals with Spanish law as applied to tribal peoples in the American Southwest and Florida. Spaniards stressed the importance of tribal home rule and protection of tribal rights through a central organization. Cohen draws parallels between Las Casas and John Collier. 40. Cohen, Warren H. and Philip J. Mause. “The Indian: The Forgotten American.” Harvard Law Review 81 (June 1968): 1818–58. Overview of litigation and successes, failures, and problems in Indian Country. The authors stress the importance of economic development and the role of tribal sovereign immunity in reservation development.

41. Collier, Peter. “The Red Man’s Burden.” In Native Americans Today: Sociological Perspectives, edited by Howard M. Bahr, Bruce A. Chadwick, and Robert C. Day, 51–68. New York: Harper & Row, 1972. Commentary on the Alcatraz occupation and contemporary challenges facing Native Americans. Whites suffer from schizophrenia in dealing with Native people, lamenting the Indian “plight” but offering them no future. 42. Collins, Richard B. “Indian Consent to American Government.” Arizona Law Review 31, no. 2 (1989): 365–87. Takes issue with scholars seeking to protect individual rights as a means to insure the survival of tribal sovereignty. Congress’s plenary power has protected tribes from state encroachment. 43. Cornell, Stephen. The Return of the Native: American Indian Political Resurgence. New York: Oxford University Press, 1988. There are six eras that tribes experienced that tied them to the Europeans, beginning with the market period, then conflict, the reservation era, the IRA, termination, and now the policies of self-determination. In each era, tribal responses have been distinctive, ranging from diplomacy, to secular integration, to increased political activity of all types. 44. Cornell, Stephen. “Sovereignty Prosperity and Policy in Indian Country Today.” Community Reinvestment 5 (1997): 5–7, 9–13. Cultural change within the poorest communities, such as the residents of Pine Ridge, and the more successful ones, such as White Mountain Apaches, explains contemporary tribal economic success or failure. The Apaches’ historical central government was in contrast to the Lakotas defused power structure that continues to create problems today. 45. Costo, Rupert and Jeannette Henry. Indian Treaties: Two Centuries of Dishonor. San Francisco: Indian Historian Press, 1977. Commentary on treaties, Indian policy, and contemporary issues in an effort to better educate the public and overcome stereotypes. Treaties “provide the clearest evidence of the sovereign nature of Native American tribal governments.” 46. Coulter, Robert T. “Contemporary Indian Sovereignty.” In Rethinking Indian Law, 109–20. New York: National Lawyers Guild, Committee on Native American Struggles, 1982. Commentary on the nature of tribal sovereignty under U.S. law, pointing out that “the more contemporary view is that Indian rights are properly questions of international law.”

Overviews of Law and Sovereignty

47. Cross, Raymond. “Reconsidering the Original Founding of Indian and Non-Indian America: Why a Second American Founding Based on Principles of Deep Diversity is Needed.” Public Land & Resources Law Review 25 (Spring 2004): 61–92. A new America should be created, founded on principles of sovereignty and deep diversity, through a tribal people’s compact with America. 48. Cross, Raymond. “Tribes as Rich Nations.” Oregon Law Review 79 (Winter 2000): 893–980. A new tribal philosophy, as the Supreme Court defined in Santa Clara Pueblo v. Martinez, insists that Indian people speak for themselves. To do so they must forget the negative past and rewrite their constitutions. 49. Dane, Perry. “The Maps of Sovereignty: A Meditation.” Cardozo Law Review 12 (February/March 1991): 959–1006. Explores reasons for tribal acceptance of U.S. authority and discusses the dynamics of overlapping sovereigns. Tribal sovereignty is both rhetoric and reality. 50. Deloria, Ella. Speaking of Indians. Lincoln: University of Nebraska Press, 1998; first published New York: Friendship Press, 1944. Deloria ends with discussion of contemporary Indian status, the effects of WWII, and the importance of continued church and government assistance. 51. Deloria, Sam. “Commentary on Nation-Building: The Future of Indian Nations.” Arizona State Law Journal 34 (Spring 2002): 55–61. It is important to create a critical and intellectual format to study cultural sovereignty and avoid mere intellectual discussions. 52. Deloria, Vine, Jr. “The Application of the Constitution to American Indians.” In Exiled in the Land of the Free: Democracy, Indian Nations, and the U.S. Constitution, edited by Oren Lyons, et al., 282–315. Santa Fe, NM: Clear Light Publishers, 1992. Explores “the systematic exclusion and occasional application” of the U.S. Constitution to American Indians. The Bill of Rights has not protected Indians. 53. Deloria, Vine, Jr. Behind the Trail of Broken Treaties. New York: Delta, 1974. The federal government must relate to tribes through treaties. It should recognize tribes as sovereign nations with international status and establish programs that respond to tribal needs and wishes. Deloria surveys the historical development of federal Indian policy, including the events associated with the Trail of Broken Treaties. 54. Deloria, Vine, Jr. “Beyond the Pale: American Indians and the Constitution.” In A Less than Perfect Union: Al-

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ternative Perspectives on the U.S. Constitution, edited by Jules Lobel, 249–67. New York: Monthly Review Press, 1988. Historical survey of federal policy and Indian law that contends that American Indians “suffer considerably from a lack of status within the constitutional framework.” 55. Deloria, Vine, Jr. Custer Died for Your Sins: An Indian Manifesto. New York: Avon Books, 1970. The book motivated groups attempting to reclaim lost sovereignty and helped bring Indian issues to broader public attention. Taxation authority is a function of sovereignty. Indian hunting and fishing rights are not only reserved rights, but important sources of food for poverty-stricken Native people. Problems in tribal leadership at the tribal and pan-Indian organization level are discussed, including differing notions of the meaning of unity. A stronger Indian movement is needed to reclaim their rights and to “retribalize, recolonize, and recustomize.” 56. Deloria, Vine, Jr. “Indian Law and the Reach of History.” Journal of Contemporary Law 4 (Winter 1977): 1–13. Criticizes the legal profession for idealizing Indian people and forcing their legal history into abstract concepts of law that have lost their meaning over time. Felix Cohen’s Handbook of Federal Indian Law was an excellent study, but now suffers from misuse as scholars return to his doctrines as the starting point for any debate. 57. Deloria, Vine, Jr. “Legislation and Litigation Concerning American Indians.” Annals of the American Academy of Political and Social Science 436 (March 1978): 86–96. From 1955 to 1977, Congress included tribal nations in more and more legislation. On the other hand, courts reduced tribal sovereignty. 58. Deloria, Vine, Jr. “Minorities and the Social Contract.” Georgia Law Review 20 (Summer 1986): 917–33. The U.S. never fully developed a philosophical framework for its social contract with minorities. If it had, “much of the conflict of the past two hundred years might have been avoided.” 59. Deloria, Vine, Jr. “Native Americans: The American Indian Today.” Annals of the American Academy of Political and Social Science 454 (March 1981): 139–49. Formal institutions have replaced custom and technology has encouraged further change, forcing tribal leaders to consider exchanging nationhood for the melting pot. 60. Deloria, Vine, Jr. “Reserving to Themselves: Treaties and the Powers of Indian Tribes.” Arizona Law Review 38, no. 3 (1996): 963–80.

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The revival of the nineteenth century Ward v. Race Horse decision and IRA has been challenged as too broad a delegation of power to the executive branch. A reason for these tribal sovereignty setbacks is Felix Cohen’s Handbook of Federal Indian Law since it did not deal with problems of race and culture, but emphasized a federal plenary power. The time has come to correct major treatises in Indian law. 61. Deloria, Vine, Jr. “Self-Determination and the Concept of Sovereignty.” In Economic Development in American Indian Reservations, Development Series No. 1, 22–28. Albuquerque: Native American Studies, University of New Mexico, 1979 Discusses colonial European and U.S. historical shifts in recognition of the meaning of tribal sovereignty. Conflicts stem from non-Indian misconceptions about Native governance and sources of power. Sovereignty should not be understood in simply a legal– political context, which is “structured in an adversary situation.” 62. Deloria, Vine, Jr. and Clifford Lytle. “Laws Founded in Justice and Humanity: Reflections on the Content and Character of Federal Indian Law.” Arizona Law Review 31, no. 2 (1989): 203–23. History makes Indian law unique from other fields of law. Cohen’s Handbook diminishes the historical origins of tribal law. 63. Deloria, Vine, Jr. and Clifford Lytle. The Nations Within: The Past and Future of American Indian Sovereignty. New York: Pantheon Books, 1984. Crow Dog and Lone Wolf eroded powers of tribal sovereignty, as did allotment policy. The Wheeler– Howard Act was considerably different than Collier’s implementation. Through the doctrine of “inherent rights,” Collier was able to sanction tribal courts and granted corporations to tribes who passed constitutions while rejecting the IRA. Still, the IRA did not yield true self-governance. The welfare programs of the 1960s were merely extensions of national welfare. Under the 1975 Self-Determination act, tribes merely administered federal programs. There must be structural reform of tribal governments. Land must be consolidated and claims must be settled. 64. Eggan, Fred. “Beyond the Bicentennial: The Future of the American Indian in the Perspectives of the Past.” Journal of Anthropological Research 34 (Summer 1978): 161–80. Discusses outside colonizers’ views of tribal political status. European national attitudes, English colonial relations, John Marshall’s decisions, and land allotment are discussed.

65. d’Errico, Peter. “Native Americans in America: A Theoretical and Historical Overview.” Wicazo Sa Review 14 (Spring 1999): 7–28. Native Americans are separated from other minorities in America because of their existence as selfgoverning peoples. 66. Dudas, Jeffrey R. “Of Savages and Sovereigns: Tribal Self-Administration and the Legal Construction of Dependence.” Studies in Law, Politics, and Society 23 (2001): 3–44. Nineteenth-century courts permitted a degree of tribal autonomy despite the images of tribal nations needing congressional protection and support. In the following century, tribal leaders were able to gain greater control of administration of reservation programs. 67. Durhan, W. Cole. “Indian Law in the Continental United States: An Overview.” Law & Anthropology 2 (1987): 93–112. Divides tribal contact history into six periods of interaction and examines specific legal issues, including the legal status of tribes, water rights, criminal procedures, and religious freedom. 68. Duthu, N. Bruce. “Implicit Divestiture of Tribal Powers: Locating Legitimate Sources of Authority in Indian Country.” American Indian Law Review 19, no. 2 (1994): 353–402. Recent Supreme Court decisions have struck blows against tribal inherent sovereign powers. In the absence of law, the high court has used the “implicit divestiture theory,” based on the idea that tribes cannot exercise both the congressional terminated powers of an independent state and powers that are “inconsistent with their status.” 69. Fairbanks, Robert A. “Native American Sovereignty and Treaty Rights: Are They Historical Illusions?” American Indian Law Review 20, no. 1 (1995–1996): 141–49. Language and cultural losses reduce tribal sovereignty and states encroach whenever possible. Tribal governments must work hard to stop this loss of sovereignty by proving their legitimacy. 70. Falkowski, James E. Indian Law/Race Law: A Five Hundred Year History. New York: Praeger Publishers, 1992. Once colonization began, Europeans developed specific laws and legislation that pertained only to tribal peoples, thus giving rise to race law. These race laws were intended to legalize the erosion of their sovereignty and civil rights. 71. Feraca, Stephen E. Why Don’t They Give Them Guns? The Great American Indian Myth. Lanham, MD: University Press of America, 1990.

Overviews of Law and Sovereignty

One chapter deals with blood quantum, while sections of other chapters discuss jurisdictional issues and off-reservation hunting and fishing rights. 72. Fershee, Joshua. “From Self-Determination to SelfDomination: Native Americans, Western Culture, and the Promise of Constitutional-Based Reform.” Valparaiso Law Review 39 (Fall 2004): 1–26. To improve tribal self-rule, several changes must be made, including using international law, promoting a greater acceptance of tribal rights, and honest judicial rulings on tribal sovereignty. 73. Flynn, Clinton R. “The Legal Status of the Indians in the United States.” Central Law Journal 62 (May 25, 1906): 399–404. The federal government recognized tribes as sovereigns, possessing the right of occupation, while the U.S. asserted fee to the land. 74. Forbes, Jack D. “The Name Is Half the Game: The Theft of ‘America’ and Indigenous Claims of Sovereignty.” In Eating Fire, Tasting Blood: An Anthology of the American Indian Holocaust, edited by MariJo Moore, 32–51. New York: Thunder’s Mouth Press, 2006. Through their use of terminology, Europeans denied Native Americans a connection to a named territory and denied their sovereignty. 75. Frantz, Klaus. Indian Reservations in the United States: Territory, Sovereignty, and Socioeconomic Change. Chicago: University of Chicago Press, 1999. This geographic work was intended to help nonAmericans understand contemporary reservation populations and conditions. Frantz stresses the perseverance of cultural identity and tribes’ special sovereign status. He surveys federal Indian policy and discusses reservation establishment, land tenure, sovereign rights, demography, standards of living, employment, education, and economic development. 76. Fredericks, John III. “America’s First Nations: The Origins, History and Future of American Indian Sovereignty.” Journal of Law and Policy 7, no. 2 (1999): 347–410. Tribal sovereignty was a key concept underlying early relations between tribes and colonies, and, after many turns, the U.S. returned to a policy of tribal selfgovernment. The key to successful tribal home rule is congressional consistency. 77. French, Laurence. “Native American Neo-colonialism.” In Indians and Criminal Justice, edited by Laurence French, 65–71. Totowa, NJ: Allanheld, Osmun & Co. Publishers, Inc. 1982.

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Colonialism is abusive and the nation’s relationship with tribal Americans places them on the bottom rung of the social ladder. French examines different models of colonialism used to keep Indians at the bottom. 78. French, Laurence. The Winds of Injustice: American Indians and the U.S. Government. New York: Garland, 1994. Contrasts the Indian “harmony-ethos” with nonIndian ethics and discusses traditional Native law before turning to a historical survey of federal Indian policy and contemporary issues, including religious freedoms, activism, gaming, and natural resource development. 79. Frickey, Philip P. “Adjudication and Its Discontents: Coherence and Conciliation in Federal Indian Law.” Harvard Law Review 110 (June 1997): 1754–84. After five decades of battle, scholars and attorneys advocating for tribes should focus as much on “questions of legal process as on matters of legal doctrine.” If tribes pursue negotiation, rather than litigation, this will encourage tribal home rule. 80. Galanda, Gabriel S. “Reservations of Right: A Practitioner’s Guide to Indian Law.” Federal Lawyer 49 (September 2002): 27–30. Discusses what outsiders can expect if they enter tribal courts seeking remedies to their problems. Within the past decade, tribes have become economically more important, and thus tribal law enters everyday business transactions and litigation. 81. Geier, Deborah A. “Essay: Power and Presumptions; Rules and Rhetoric; Institutions and Indian Law.” Brigham Young University Law Review 3 (1994): 451–97. A swinging pendulum of court decisions over recent years has affected tribal government authority. Courts have claimed the existence of Indian Country is a matter for Congress to decide, but then proceeded to rule that Congress had already decided the issue. 82. Getches, David H., Daniel M. Rosenfelt, and Charles F. Wilkinson. Federal Indian Law: Cases and Materials, Fifth Edition. St. Paul, MN: West Publishing Co., 2005. Several updated editions have been published of this widely used source that is useful for attorneys and law students, but also accessible to those lacking legal training. Part I of the 2005 edition offers a historical survey of federal Indian law broken down chronologically. Part II is arranged topically with introductory interpretations followed by reprints of key court cases. 83. Green, Jessie D. and Susan Work. “Comment: Inherent Indian Sovereignty.” American Indian Law Review 4, no. 2 (1976): 311–42.

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Although some deny its existence, inherent tribal sovereignty is the tribes’ most potent legal weapon and a major force in federal Indian law. 84. Grossman, George S. The Sovereignty of American Indian Tribes: A Matter of Legal History. Minneapolis, MN: Minnesota Civil Liberties Union Foundation, 1979. Historical overview of Indian policy and the evolving status of tribal sovereignty beginning in the colonial era. Major changes occurred in fifty-year cycles and thus the 1980s should be a time of “major new initiatives” more favorable to Indians. Groups seeking energy resources will continue to assail tribal sovereignty. 85. Gulig, Anthony G. and Sidney L. Harring. “‘An Indian Cannot Get a Morsel of Pork . . .’: A Retrospective on Crow Dog, Lone Wolf, Blackbird, Tribal Sovereignty, Indian Land, and Writing Indian Legal History.” Tulsa Law Review 38 (Fall 2002): 87–111. Examines the common theme of tribal people seeking to preserve their sovereignty in the face of great odds. No tribal community wants to be embroiled in complex litigation, but none of them will back out. 86. Haas, Theodore H. “The Legal Aspects of Indian Affairs from 1887 to 1957.” Annals of the American Academy of Political and Social Science 311 (May 1957): 12–22. Overview of federal Indian law from the Dawes Act to the termination legislation, and including discussions of taxation, off-reservation jurisdiction, and citizenship. Haas was Felix Cohen’s chief collaborator in writing the Handbook of Federal Indian Law. 87. Hagan, William T. “Tribalism Rejuvenated: The Native American since Termination.” Western Historical Quarterly, 12 (January 1981): 5–16. Attributes the impetus for tribalism to “the heightened pride in tribal identity,” the shift from termination policy to self-determination, and to assistance provided through ICC settlements and increased federal funding. 88. Hall, Thomas D. “Patterns of Native American Incorporation into State Societies.” In Public Policy Impacts on American Indian Economic Development, edited C. Matthew Snipp, 23–38. Albuquerque: Native American Studies Institute for Native American Development, University of New Mexico, 1988. Provides models for understanding long-term Indian incorporation, which is “the process by which Native American societies were absorbed into invading state societies.” 89. Harsha, William Justin. “Law for the Indians.” North American Review 134 (1882): 272–92. Discusses federal authority over Indians from a theoretical and a practical position. Immediate citizenship is

not preferred, but eventual citizenship through assimilation is stressed. 90. Hauptman, Laurence M. Tribes and Tribulations: Misconceptions about American Indians and Their Histories. Albuquerque: University of New Mexico Press, 1995. Essays attempting to correct scholarly misconceptions about such issues as Indian genocide, frontier violence, the U.S. Constitution’s intellectual origins, removal policy, paternalist rhetoric, Indian participation in the Civil War, and modern legal struggles. Language is a common source of misinterpretation and conflict. 91. Hester, Thurman Lee, Jr. Political Principles and Indian Sovereignty. New York: Routledge, 2001. Contemporary problems Native communities face can be attributed to America’s denial of their sovereignty. Health, education and economic conditions are described statistically and the history of U.S. Indian policy is discussed. Recent policies have failed to promote local control. 92. Houghton, N. D. “‘Wards of the United States’— Arizona Applications: A Study of the Legal Status of Indians.” University of Arizona Bulletin 41 (July 1945): 1–19. Surveys Indian policies and explains the special status of Indians in the U.S. Their economies, tax status, and available federal services are described. Tribes have an inherent right to self-governance. 93. Hoxie, Frederick G. “Towards a ‘New’ North American Indian Legal History.” American Journal of Legal History 30, no. 4 (1986): 351–57. County and tribal court records are consulted to demonstrate Indian adjustments to Anglo law and custom, and to chronicle community behavior on reservations. 94. Hutt, Sherry. “If Geronimo Was Jewish: Equal Protection and Cultural Property Rights of Native Americans.” Northern Illinois University Law Review 24 (Summer 2004): 527–62. Despite the Fourteenth Amendment’s equal protection clause mandating that states will treat all persons equally under their laws, tribal people have been denied these protections. If these protections were provided, Congress would not have to pass remedial laws. 95. Israel, Daniel H. “The Reemergence of Tribal Nationalism and Its Impact on Reservation Development.” University of Colorado Law Review 47 (Summer 1976): 617–52. The Tribal Federal Jurisdiction Act of 1966 turned the tide, permitting tribes to assert their rights, and was followed by the 1968 ICRA, the 1974 Indian Financ-

Overviews of Law and Sovereignty

ing Act, the American Indian Policy Review Commission, and the 1975 Indian Self-Determination and Education Assistance Act, and the Supreme Court ruling in Menominee. 96. Iverson, Peter. “We Are Still Here”: American Indians in the Twentieth Century. Wheeling, IL: Harlan Davidson, 1998. Survey of modern American Indian history that covers law and sovereignty topics, including key legal cases, federal policies, and tribal responses. Iverson stresses Indian adaptation and cultural persistence. 97. Jackson, Helen Hunt. A Century of Dishonor: A Sketch of the United States Government’s Dealings with Some of the Indian Tribes. Norman: University of Oklahoma Press, 1995; first edition New York: Harper and Brothers, 1881. Various editions of this classic have been printed since it first appeared in the 1880s. Jackson examined treaty violations, statutory violations, and other illfated acts done to tribal nations in hopes that Congress would not repeat past injustices. 98. Jaimes, M. Annette, ed. The State of Native America: Genocide, Colonization, and Resistance. Boston, MA: South End Press, 1992. Essays by various authors deal with Native American law and sovereignty. Jaimes stresses the need to liberate Native Americans. 99. Jennings, Francis. “Conquest and Legal Fiction.” Oklahoma City University Law Review 23 (Spring and Summer 1998): 141–49. Examines the clash of national law and tribal custom in North America. Despite the law of nations, invasion was a non-legal concept and often non-legal actions take precedence over legal procedures. 100. Jensen, Erik M. “American Indian Tribes and Secession.” Tulsa Law Journal 29 (Winter 1993): 385–96. The relationship between tribal peoples and other Americans is improper. In a theoretical discussion, Jensen argues for tribal secession. 101. Jensen, Erik M. “The Continuing Vitality of Tribal Sovereignty.” Montana Law Review 60 (Winter 1999): 3–16; “The End (of This Discussion) of Tribal Sovereignty.” Montana Law Review 60 (Winter 1999): 35–37. Tribal sovereignty pre-dates the Constitution and therefore inherent sovereignty still exits. James Poore’s logic is faulty. 102. Johansen, Bruce E. The Encyclopedia of Native American Legal Tradition. Westport, CT: Greenwood Press, 1998.

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Contains fewer entries, but they are in greater depth than in dictionary publications. Arranged alphabetically, each entry includes a short bibliography. 103. Johnson, Ralph. Studies in American Indian Law. Pullman, Washington: no publisher, 1970. Provides copies of unpublished studies law students prepared in a year-long seminar on “Indian Legal Problems” in two bound volumes. Topics include termination, the Indian Bill of Rights, heirship lands, jurisdiction, freedom of religion, equal opportunity in education, hunting and fishing rights, and timber management. 104. Johnson, Troy, ed. Contemporary Native American Political Issues. Walnut Creek, CA: AltaMira Press, 1999. Essays on nationalism and sovereignty, international indigenous rights, economic development, law and justice, repatriation, and activism. 105. Josephy, Alvin M., Jr. Now That the Buffalo’s Gone: A Study of Today’s American Indians. New York: Alfred A. Knopf, 1982. Stresses resurgent efforts to assert tribal sovereignty. Topics covered include continuing racial stereotypes, efforts to regain and/or retain their religious freedom and sacred sites, land base, water rights, fishing and hunting claims, and mineral resources. Case studies include Florida tribes, Senecas, Pyramid Lake Paiutes, Pacific Northwest tribes, and Lakotas. 106. Josephy, Alvin M., Jr. Red Power: The American Indians’ Fight for Freedom. New York: American Heritage Press, 1971. Essays and primary documents providing background regarding the rising fight for Native selfdetermination and self-governance, including such documents as the 1961 Declaration of Indian Purpose and Nixon’s 1970 statement to Congress. Brief essays by various authors deal with a variety of sovereignty issues. 107. Kerr, James R. “Constitutional Rights, Tribal Justice, and the American Indian.” Journal of Public Law 18, no. 2 (1969): 311–38. Tribal people have to confront hundreds of treaties, tribal constitutions, thousands of court decisions and federal rulings that have contributed to confusion about their standing in America. 108. Kickingbird, Kirke, Lynn Kickingbird, Charles J. Chibitty, and Curtis Berkey. Indian Sovereignty. Washington, DC: Institute for the Development of Indian Law, 1977.

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Short study of the issue of tribal sovereignty, its evolution and current status. 109. Knoepfler, Karl J. “Legal Status of American Indian and His Property.” Iowa Law Bulletin 7 (May 1922): 232–49. Discusses the legal status of tribal Americans, noting that Congress has assumed jurisdiction over subject matters that are not related to commerce. 110. Kronowitz, Rachel San, Joanne Lichtman, Steven Paul McSloy, and Mattew G. Olsen. “ Toward Consent and Cooperation: Reconsidering the Political Status of Indian Nations.” Harvard Civil Rights–Civil Liberties Law Review 22 (Spring 1987): 507–622. The U.S. has a legally anomalous relationship with tribal nations. By passing laws and pushing legal doctrines, states and the federal government have imposed their authority on reservations. Tribal–U.S. relations should be restructured based upon mutual consent and cooperation. 111. LaDuke, Winona. The Winona LaDuke Reader. Stillwater, MN: Voyageur Press, 2002. Anthology of essays, including political commentary, fiction, and poetry. Topics related to Native rights include commentary on Enron, the Endangered Species Act, CERT, uranium mining, the National Park Service, women’s issues, presidential politics, and Makah whaling. 112. La Farge, Oliver, ed. The Changing Indian. Norman: University of Oklahoma Press, 1942. John Collier provides the introduction to essays by various authors involved in Indian affairs commenting on contemporary Indian status, the problems they face in the future, and the effects of Indian policies. Collier stresses the importance of the IRA and other recent policies in promoting Indian democracy and their connection with the land. 113. La Farge, Oliver. “Freedom, Equality, Brotherhood.” American Indian 7 (Spring 1954): 4–11. Native Americans are in a special position that leaves them dependent on the goodwill of other Americans. They are not treated as being free or equal. Misinterpretation of terms like “wardship” can do them great harm. 114. La Farge, Oliver. “The Right to Make Mistakes.” American Indian 2 (Fall 1951): 25–30. Critical commentary on federal Indian policy and Congress’s recent failures to work successfully for Indian rights. The Navajo Tribal Council and other Indians have the right to handle their own affairs and make mistakes.

115. La Fromboise, Teresa and Richard La Fromboise. “Critical Legal and Social Responsibilities Facing Native Americans.” In Indians and Criminal Justice, edited by Laurence French, 21–38. Totowa, NJ: Allanheld, Osmun & Co. Publishers, Inc. 1982. Tribal people have the right to be different, to hunt and fish in ways that whites do not accept, to practice their own beliefs, and to have an education. 116. Larson, Sidner. “Rhetoric and American Indians.” Wicazo Sa Review 17 (Spring 2002): 7–20. American Indians should not “be subjected to courts and texts that simply reproduce the hegemonic power of the dominant culture.” 117. Larson, Sidner. “Making Sense of Federal Indian Law.” Wicazo Sa Review 20 (Spring 2005): 9–21. American legal systems have placed themselves above the communities for whom they make decisions. There must be communication between the tribal and non-tribal communities and judicial rulings should be consistent. 118. Laurence, Robert. “Antipodean Reflections on American Indian Law.” Arizona Journal of International and Comparative Law 20 (Fall 2003): 533–59. Focuses on three central issues: the validity of colonialism, treaty rights, and land claims. 119. Laurence, Robert. “John Marshall, The Designated Hitter Rule and the Plenary Power of Congress Over the Indian Nations: Some Personal Reflections on the Actual State of Things.” Federal Bar News & Journal 36 (November 1989): 422–29. Discusses the difficult-to-prove legal theory that tribal nations have full sovereignty. Scholars advancing this theory have not been to Rosebud and seen that tribes do not possess the attributes of sovereignty, nor are they ready to take a seat in the United Nations. 120. Laurence, Robert. “A Memorandum to the Class, in Which the Teacher Is Finally Pinned Down and Forced to Divulge His Thoughts on What Indian Law Should Be.” Arkansas Law Review 46, no. 1 (1993): 1–23. Laurence gives his personal views on federal Indian law, several important Indian court decisions and why he does or does not support each of them. 121. Laurence, Robert. “Questions Posed.” North Dakota Law Review 71, no. 2 (1995): 589–600. Panelists posed questions at this symposium, including one asking why scholars should study federal Indian law. 122. Levine, Stuart and Nancy Oestreich Lurie, eds. The American Indian Today. Baltimore, MD: Penguin Books, Inc., 1970.

Overviews of Law and Sovereignty

Essays by various authors dispelling misconceptions about Indians, reviewing federal policies toward them, illuminating present problems, and offering specific case studies. Levine stresses that Native Americans have been flexible in their response to change without surrendering their identity, and that their values and goals are not threatening to American society. 123. Levitan, Sar A. Big Brother’s Indian Programs, with Reservations. New York: McGraw-Hill, 1971. Offers a multi-point program for tribal success that includes tribal self-sufficiency, continuing reservation existence, tribal control over their resources, and improved living conditions. There is also a chapter on tribal education and a discussion of potential oil revenues and oil pricing. 124. Lindquist, G. E. E. The Red Man in the United States: An Intimate Study of the Social, Economic and Religious Life of the American Indian. New York: George H. Doran Company, 1923. In 1921, the Committee on Social and Religious Surveys received funding to survey conditions in tribal America. This survey provides information on the church work in Indian Country and provides data on economic conditions. 125. Lobo, Susan and Steve Talbot. Native American Voices: A Reader. New York: Longman, 1998. Essays by various authors serve as an introduction to Native American Studies. Topics include sacred sites, relocation policy, activism, labor policy and tribal gaming. 126. Lobsenz, James E. “‘Dependent Indian Communities’, a Search for a Twentieth Century Definition.” Arizona Law Review 24, no. 1 (1982): 1–27. Traces the historical and legal transition of tribal communities from nations to dependent tribal communities. The passage of time has witnessed the creation of semi-sovereign tribal governments, but if they are to survive, the idea of dependent Indian communities must be redefined to protect tribal sovereignty. 127. Lyons, Oren. “Law, Principle, and Reality.” New York University Review of Law & Social Change 20, no. 2 (1993): 209–15. As an Onondaga elder and leader, Lyons offers thoughts concerning sovereignty and environmental protection. 128. MacDonald, Peter. “Both Political Parties are in a Dead Heat to Wipe out Tribal Sovereignty.” Wassaja/The Indian Historian 13 (September 1980): 9–12. Discusses the favorable and unfavorable positions that the two major political parties have taken on tribal issues. Despite Nixon’s stand on self-determination,

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the Republicans favor states’ rights over tribal sovereignty. 129. McCoy, Robert G. “The Doctrine of Tribal Sovereignty: Accommodating Tribal, State, and Federal Interests.” Harvard Civil Rights–Civil Liberties Law Review 13 (Spring 1978): 357–423. Examines the federal–tribal relationship, the state– tribal relationship, tribal powers of self-rule, and the courts’ role in protecting tribal independence. Stresses the importance of different players’ self-interest. 130. McSloy, Steven Paul. “American Indians and the Constitution: An Argument for Nationhood.” American Indian Law Review 14, no. 2 (1986): 139–89. Full sovereignty would require overturning cases, drafting new laws, and a fundamental shift in attitudes toward tribal America. The most important source for this shift is a modern reading of the Indian Commerce Clause. 131. McSloy, Steven Paul. “Back to the Future: Native American Sovereignty in the 21st Century.” New York University Review of Law & Social Change 20, no. 2 (1993): 217–302. A fundamental contradiction in tribal–U.S. relations is the recognition of tribal sovereignty but only outside the realm of international law. To return to that international relationship, McSloy calls “for the abolition of every congressional statute touching upon Indian affairs, save for the occasional regulation of commerce, as in the original Trade and Intercourse Acts.” 132. McSloy, Steven Paul. “‘Because the Bible Tells Me So’: Manifest Destiny and American Indians.” St. Thomas Law Review 9 (Fall 1996): 37–47. The real conquest of North America was on paper, not the battlefield. These paper battles included the Worcester case. 133. Mander, Jerry. In the Absence of the Sacred: The Failure of Technology and the Survival of the Indian Nations. San Francisco: Sierra Club Books, 1991. Technology has the power to destroy tribal cultures. Chapters pertaining to tribal people include the Hopi government, the Alaskan Natives land settlement and the Nevada Shoshone aboriginal land case. 134. Mankiller, Wilma. “To Persevere as Tribal People.” Native Americas 19 (Fall/Winter 2002): 55–57. Mankiller attributes her identity with her family and community for shaping her ideas and stresses the importance of getting involved. She worries that tribes are losing the old ways. 135. Mankiller, Wilma. “Public Perception as a Sovereignty Protection Issue.” Kansas Journal of Law & Public Policy 14 (Spring 2005): 639–42.

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Discusses dangerous stereotypes and their impact on tribal sovereignty.

as driven by economic conflict—precapitalist vs. capitalist.

136. Martone, Frederick J. “American Indian Tribal SelfGovernment in the Federal System: Inherent Right or Congressional License.” Notre Dame Lawyer 51 (April 1976): 600–35. Congress should be the strongest force in tribal issues through legislation and with tribal input. The courts should play a limited role and reach opinions based on treaties and statues.

142. Morris, Glenn T. “A Critique of U.S. Legal Fictions as Applied to Indigenous People.” In Indian SelfGovernance: Perspectives on the Political Status of Indian Nations in the United States of America, edited by Carol J. Minugh, Glenn T. Morris, and Rudolph C. Ryser, 15–26. Kenmore, WA: Center for World Indigenous Studies, 1989. Critiques the origins of the concepts of “domestic dependent nations” and the trust doctrine, and argues that the Marshall court “laid the groundwork for a legal fiction” upon which Indian law has been built.

137. Meriam, Lewis, ed. The Problem of Indian Administration: Report of a Survey Made at the Request of Hubert Work. Washington, DC: Brookings Institution for Government Research, 1928. The classic document on the conditions of tribal Americans after WWI, this study includes statistics on tribal income, conditions of schools, and the role of the Office of Indian Affairs in reservation resource management. The report supported tribal peoples’ right to remain Indian, or not to, and suggested a change in reservation governance that contributed to congressional support of the IRA. 138. Mettler, Earl. “A Unified Theory of Indian Tribal Sovereignty.” Hastings Law Journal 30 (September 1978): 89–136. Pulls together three subject areas—tribal sovereignty and tribal power, tribal sovereignty and state jurisdiction, and tribal sovereignty and equal protection—to form a unified view of sovereignty. There is no tribal constitutional right to exercise sovereign power, but federal law recognizes preemption of state authority. 139. Monette, Richard A. “A New Federalism for Indian Tribes: The Relationship between the United States and Tribes in Light of Our Federalism and Republican Democracy.” University of Toledo Law Review 25, no. 3 (1994): 617–72. The legal theories of plenary power and discovery are not compatible with the principles of federalism upon which this nation was founded. 140. Monette, Richard A. “Sovereignty and Survival: The Status of Indian Tribes under American Law is a Key to their Cultural Existences.” ABA Journal 86 (March 2000): 64–65. Sovereignty, from an American Indian perspective, includes both people and territory. Sadly, federal courts have reduced tribes to instruments of the federal government. 141. Moore, John H., ed. The Political Economy of North American Indians. Norman: University of Oklahoma Press, 1993. Essays by various authors stress the importance of understanding Indian–white relations over time

143. Mudgett, Helen Parker, ed. “Proceedings of the Conference on Indian Tribes and Treaties: A Regional Conference.” Minneapolis: University of Minnesota, Center for Continuation Study, 1955. Leading scholars discuss treaties’ historical and theoretical base, current problems relating to these treaties, the definition of an Indian tribe, current tribal affairs, P.L. 280 and jurisdictional and legal problems. 144. Muga, David A. “Native Americans and the Nationalities Question: Premises for a Marxist Approach to Ethnicity and Self-Determination.” Journal of Ethnic Studies 16 (Spring 1988): 31–52. Stresses the important role Marxist thought has played in indigenous quests for self-determination. 145. Muskrat, Jerry. “The Constitution and the American Indian: Past and Prologue.” Hastings Constitutional Law Quarterly 3 (Summer 1976): 657–77. Comments on tribal sovereignty, stressing the importance of a continuing “legal right to be Indian.” 146. National Indian Law Library. Landmark Indian Law Cases. Buffalo, NY: AALL Publication Series No. 65, William S. Hein & Co., 2002. Surveys major issues in federal Indian law and includes cases from Johnson v. McIntosh (1823) to Nevada v. Hicks (2001). The cases are arranged chronologically, but there is an alphabetical index to locate cases, as well as a subject index. 147. National Lawyers Guild, Committee on Native American Struggles. Rethinking Indian Law. New York: National Lawyers Guild, Committee on Native American Struggles, 1982. In the first section, authors discuss federal Indian law, the Navajo–Hopi land dispute, Oliver LaFarge’s efforts to reorganize the Hopis, and contemporary tribal sovereignty. The second section examines potential remedies in light of the growing body of international law for the protection of indigenous rights.

Overviews of Law and Sovereignty

148. Newton, Nell Jessup. “Status of Native American Tribal Institutions under United States Law.” Law & Anthropology 1 (1986): 51–91. Specific legal precedents dominate Indian law: federal authority, tribal status as a sovereign, and a trust relationship between tribes and the U.S. Despite efforts to assimilate them, tribal nations and their members have retained their separate status. 149. Nichols Roger L. “The Indian in Nineteenth-Century America: A Unique Minority.” In The American Indian: Past and Present, 3rd. ed., edited by Roger L. Nichols, 127–36. New York: Alfred A. Knopf, 1986. Native experiences are unique in contrast to any other American group, both because of their unique perspectives on property and social relations, and because of the unique way in which the federal government treated them. 150. Norgen, Jill and Serena Nanda. American Cultural Pluralism and Law. 2nd ed. Westport, CT: Praeger Publishers, 2006; first edition 1996. Discusses negotiations between law and American subcultures, including chapters focusing on Native Americans. Courts have responded inconsistently to these different groups’ efforts to either protect their autonomy or seek equal access in society. The chapters dealing with Native Americans discuss federal Indian policies, the Cherokee cases, Sioux claims to the Black Hills, and religious freedoms of the Native American Church. 151. Novack, George. Genocide Against the Indians: Its Role in the Rise of U.S. Capitalism. New York: Pathfinder Press, 1970. A Marxist interpretation of non-Indian colonialism and repression. Native Americans should benefit from the modern economy and have control over their lands without having to surrender their cultural values. 152. Oliver, Robert W. “The Legal Status of American Indian Tribes.” Oregon Law Review 38 (April 1959): 193–245. Tribal America was conquered through legislation and court decisions, not war. Tribal people are upset with the continuing discrimination and poor treatment. 153. Olson, James S. ed. Encyclopedia of American Indian Civil Rights. Westport, CT: Greenwood Press, 1997. Single-volume encyclopedia with many entries directly related to tribal sovereignty, including the 1904 Pipeline Act wherein Congress forced oil lines across Indian Territory reservations without tribal consent. There is a selected bibliography. 154. Olson, James S. and Raymond Wilson. Native Americans in the Twentieth Century. Provo: Brigham Young University Press, 1984.

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History text that stresses Native American endurance in the face of cultural genocide. The focus is on twentieth-century federal policy and Native responses, but historical background is provided as far back as the colonial era. 155. Olson, Paul A. The Struggle for the Land: Indigenous Insight and Industrial Empire in the Semiarid World. Lincoln: University of Nebraska Press, 1990. Essays by various authors focus on the effects of European-based development on semi-arid regions and their indigenous peoples. A majority of the chapters focus specifically on American Indians or compare U.S. tribal experiences to indigenous experiences elsewhere. 156. Ortiz, Roxanne Dunbar. “Wounded Knee 1890 to Wounded Knee 1973: A Study in United States Colonialism.” Journal of Ethnic Studies 8 (Summer 1980): 1–16. American overseas imperialism was defended by the same actors that defended American actions against tribal sovereignty on Indian reservations. Scholars have distorted Lakota–U.S. relations because they do not use an analytical framework that explores both resistance and colonialism. 157. “Panel Discussions from Indian Nations on the Eve of the 21st Century.” South Dakota Law Review 43, no. 2 (1998): 438–85. Two panels, composed of professors, law students and tribal members, discuss the future of tribal land and water rights. 158. Parman, Donald L. “American Indians and the Bicentennial.” New Mexico Historical Review 51 (July 1976): 233–49. Assesses the state of Indian affairs with special focus on the 1960s and early 1970s, and with emphasis on the rise of Native-led action to attain self-determination. Includes brief discussions of federal policies of that era, tribal activism, and the Taos effort to regain Blue Lake. 159. Petoskey, Michael D. “The Fundamentals of Federal Indian Law.” Michigan Bar Journal 65 (May 1986): 438–43. Discusses the cannons of construction when litigating tribal issues. 160. Pevar, Stephen L. The Rights of Indians and Tribes. Carbondale and Edwardsville: Southern Illinois Press, 2002, 3rd ed.; 1st ed. New York: Bantam Books, 1983. Organized like a case law book, there are sections on historical Indian policies, federal trust responsibility, hunting and fishing rights, and criminal jurisdiction in Indian Country. This edition has updated sections on gaming and state authority on reservations.

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161. Phillips, Robin A. “Federal Indian Law.” Annual Survey of American Law (February 1982): 583–604. Overview of the principles that govern federal Indian law, including treaty and statute construction and state–tribal jurisdictional conflicts. 162. Philp, Kenneth R. ed. Indian Self-Rule: First Hand Accounts of Indian–White Relations from Roosevelt to Reagan. Salt Lake City, UT: Howe Brothers, 1986. Multiple-author essays assessing tribal progress toward self-determination from the IRA years forward. In addition to policy assessments, topics for debate include the ICC, poverty, activism, 638contracting, control of natural resources, and trust obligations. 163. Pierre, George. American Indian Crisis. San Antonio: Naylor Company, 1971. Pierre, a tribal member of the Colville Confederated Tribes of Washington, discusses termination and reservation life, and focuses on the need for education. His people have been on a downhill slide since Europeans came. American Indians must integrate. 164. Pommersheim, Frank. Braid of Feathers: American Indian Law and Contemporary Tribal Life. Berkeley: University of California Press, 1995. Tribal peoples lost much of their lands and property in the past, but there is still hope. Tribal people are developing new approaches to resource development and preservation within the dominant society despite a past that witnessed prejudice and racism. 165. Pommersheim, Frank. “Democracy, Citizenship, and Indian Law Literacy: Some Initial Thoughts.” Thomas M. Cooley Law Review, 14, no. 3 (1997): 457–71. Evaluates these concepts in the context of recent court decisions affecting tribal communities. 166. Pommersheim, Frank. “Is There a (Little or Not So Little) Constitutional Crisis Developing in Indian Law?: A Brief Essay.” University of Pennsylvania Journal of Constitutional Law 5 (January 2003): 271–87. The courts’ and Congress’s heavy-handed actions thwarting tribal sovereignty demonstrate that treaty federalism has failed. A constitutional amendment is needed that recognizes tribal sovereignty in hopes of opening a dialogue that will restore tribal sovereignty and create a real government-to-government relationship between tribes and the U.S. 167. Poore, James A., III. “The Constitution of the United States Applies to Indian Tribes.” Montana Law Review 59 (Winter 1998): 51–80. To remove any idea that tribal nations are outside the Constitution, Poore examines constitutional re-

straints on tribal authority. The Constitution binds them in their dealings with nonmembers. 168. Poore, James A., III. “The Constitution of the United States Applies to Indian Tribes: A Reply to Professor Jensen.” Montana Law Review 60 (Winter 1999): 17–34. The Constitution protects everyone in the U.S., including on reservations, and is applicable to tribal governments and courts. 169. Porter, Robert Odawi. “The Inapplicability of American Law to the Indian Nations.” Iowa Law Review 89 (May 2004): 1595–1631. When American law is applied that is in conflict with the U.S. Constitution or a tribe’s constitution, it “is a clear violation of the Indian nation’s own laws,” and tribal law will suffer. This conflict between sovereigns can be resolved by refusing to uphold the plenary power doctrine. 170. Porter, Robert Odawi. “The Meaning of Indigenous Nation Sovereignty.” Arizona State Law Journal 34 (Spring 2002): 75–112. This theoretical and structural sovereignty discussion asks how real indigenous notions of sovereignty can be restored. The universal idea of tribal sovereignty must focus on three variables: belief, ability, and recognition. 171. Porter, Robert Odawi. “A Proposal to the Hanbodaganyas to Decolonize Federal Control Law.” University of Michigan Journal of Law Reform 31 (Summer 1998): 899–1006. Congressional efforts to encourage tribal selfdetermination are important, but will not be as successful as intended. Despite colonial foundations, there are many examples of American values that foster self-determination. 172. Porter, Robert Odawi. Sovereignty, Colonialism and the Indigenous Nations: A Reader. Durham, NC: Carolina Academic Press, 2005. Reader consisting of primary documents and reprinted excerpts from secondary sources with the dual aims of illuminating the meaning of indigenous sovereignty and colonizing efforts to subordinate indigenous peoples. 173. Price, David. The Second Civil War: Examining the Indian Demand for Ethnic Sovereignty. St. Paul, MN: Second Source Inc., 1998. Treaties had two purposes, one to establish absolute federal control over reservations, and the second to prepare Native Americans to become productive citizens. The government signers viewed treaties only as temporary documents that would end when Indians

Overviews of Law and Sovereignty

were assimilated. Reservations endure and many nonIndians argue against tribal special status, while tribes have attempted to remove whites from the reservations. 174. Price, Monroe E. “Indian–Federal Regulations from the Inside Out: Comment on Perry Dane’s Meditation.” Cardozo Law Review 12 (February/March 1991): 1007–14. The “justification of property title that controlled much of seventeenth century thinking” also was the foundation for settler–tribal relations. We must not ignore Dane’s arguments, but we must be cautious about how his approach fits into the legal landscape that so many defended. 175. Price, Monroe E. Native American Law Manual. California Indian Legal Services, 1970. Intended primarily for VISTA lawyers, this collection of documents and reprinted articles serves as an introduction for federal and state agency employees dealing with Indian affairs. 176. Price, Monroe E. and Robert N. Clinton. Law and the American Indian: Readings, Notes, and Cases. Charlottesville, VA: Michie, 1983; first published Indianapolis, IN: Bobbs-Merrill Company, 1973. Explores multiple aspects of Indian law, including the problems of jurisdiction, federal intervention in tribal governance, state claims to authority, issues of assimilation, the preservation of cultural identity, tribal rights, and economic development. 177. Prince, John Randolph. “Indian Country: A Different Model of Sovereignty.” Gonzaga Law Review 33, no. 1 (1997/98): 103–40. Urges a return to the Constitutional Convention where three sovereigns existed—the central government, the states, and the tribal nations—and on nearly equal planes of power. 178. Pritzker, Barry M. Native America Today: A Guide to Community Politics and Culture. Santa Barbara, CA: ABC-CLIO, 1999. A reference publication dealing with contemporary reservation issues, including politics, economics, social relations, sovereignty, health, and education. 179. Ragsdale, Fred L., Jr. “The Deception of Geography.” In American Indian Policy in the Twentieth Century, edited by Vine Deloria, Jr., 63–82. Norman: University of Oklahoma Press, 1985. Worcester, United States v. McBratney (1882), and Williams v. Lee (1959) have all demonstrated that, “tribes’ relationships with the United States and the individual states are complicated.” There are drawbacks to tribal efforts to adapt their governments and laws to conform with those of the non-tribal governments.

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Discussion includes jurisdictional disputes and full faith and credit. 180. Raper, Elaine Both. Native American People: Sovereignty and Land Rights. Evanston, IL: John Gordon Burke Publishers, 2004. Short history of tribal sovereignty, including discussion of reservations, sovereignty, treaties, border racism, land and water rights, mineral rights, termination, blood quantum, and recognition. 181. Resnick, Judith. “Multiple Sovereignties: Indian Tribes, States, and the Federal Government.” Judicature, 79 (November–December 1995): 118–25. There is a complex relationship among tribes, states, and the federal government and these sovereigns need to be integrated into a give-and-take federalist system. 182. Robertson, Dario F. “A New Constitutional Approach to the Doctrine of Tribal Sovereignty.” American Indian Law Review 6, no. 2 (1978): 371–94. The application of the canons of construction would enable courts to examine tribal cases using the constitutional language “Indians not taxed,” thereby maintaining tribal sovereignty and circumventing decisions like Oliphant. 183. Roleff, Tamara L. ed. Native American Rights. San Diego, CA: Greenhaven Press, 1998. Anthology of excerpted essays by more than thirty authors debating prisoners’ religious rights, tribal religious freedoms, gaming, natural resource development, and whether tribal sovereignty should be restricted. 184. Rosen, Lawrence, ed. American Indians and the Law. New Brunswick, NJ: Transaction Books, 1976. The authors of this symposium examined tribal people’s relationship to federal law, focusing on taxes, water and mineral resource management, jurisdiction, and compensation for property takings. 185. Rosier, Paul C. Native American Issues. Westport, CT: Greenwood Press, 2003. Discusses sports mascots, treaty rights, land claims, repatriation of human remains and sacred objects, gaming and conflicts between economic development and environmental protection. 186. Rubin, Ivan B. “Federal Indian Law.” Annual Survey of American Law (February 1982): 351–74. Reviews such topics as the Major Crimes Act, equal protection challenges, and tribal jurisdiction over nonIndians, and suggests that procedural problems are best solved by congressional legislation. 187. Russell, Isaac Franklin. “The Indian before the Law.” Yale Law Journal 18 (March 1908): 328–37.

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Overview of the legal status of tribal nations and individuals, including a survey of important court decisions. 188. Ryser, Rudolph C. “Who Will Govern Indian Country?” In Indian Self-Governance: Perspectives on the Political Status of Indian Nations in the United States of America, edited by Carol J. Minugh, Glenn T. Morris, and Rudolph C. Ryser, 91–104. Kenmore, WA: Center for World Indigenous Studies, 1989. Tribes possess inherent sovereignty. They are more “associated nations” than they are parts of the U.S. federal system. Uncertainty about who governs in Indian Country is neither good for the tribes nor the U.S. Tribes should be the sole governing authority within reservations. 189. Savage, Mark. “Native Americans and the Constitution: The Original Understanding.” American Indian Law Review 16, no. 1 (1991): 57–118. Outsiders have caused tribal sovereignty and tribal government to erode. Tribes may retain the attributes of inherent sovereignty so long as these tribal powers do not infringe on non-Indians. A federal Indian court of appeals may be a positive vehicle. 190. Schuetz, Janice. Episodes in the Rhetoric of Government –Indian Relations. Westport, CT: Praeger, 2002. Series of case-studies, including discussions of the return of Blue Lake, Puget Sound fishing rights, Wounded Knee 1973, and a vehicular homicide case during the 1990s involving a Navajo defendant accused of drunk driving. 191. Shattuck, Petra T. and Jill Norgen. Partial Justice: Federal Indian Law in a Liberal Constitutional System. Oxford: Berg Publishers, Inc., 1991. Unlike other minorities in the U.S., tribal Americans have seen a reduction in their powers. The Cherokee cases were their great court victories. From the 1830s on, their powers as nations and individuals have diminished. 192. Singer, Joseph William. “Comment: The Stranger Who Resides with You: Ironies of Asian-Americans and American Indian Legal History.” Boston College Third World Law Journal 19 (Fall 1998): 171–77. Compares the irony of invasion and assimilation regarding the author’s Jewish heritage to the historical oppression of American Indians and Asian Americans. 193. Singer, Scott N. “Federal Indian Law.” Annual Survey of American Law 1 (1977): 41–58. Discusses important legal events in 1976 in tribal legal affairs, examining, in particular, relationships among Congress, the Supreme Court, and the BIA.

194. Skibine, Alex Tallchief. “Reconciling Federal and State Power Inside Indian Reservations with the Right of Tribal Self-Government and the Process of Self-Determination.” Utah Law Review 4 (1995): 1105–56. The federal government and tribes should return to the past diplomatic tool of consent. Under a consentbased system, the differing parties could negotiate each sovereign’s jurisdictional rights and responsibilities. 195. Smith, Clay, chief editor. American Indian Law Deskbook: Conference of Western Attorneys General, 3rd ed. Boulder: University Press of Colorado, 2004. Originally published in 1993, the Deskbook has undergone several changes, including supplements. The text is arranged in fourteen chapters, covering such topics as the judicial foundations of Indian policy, questions of jurisdiction, criminal justice, major court decisions, taxation, hunting and fishing rights and state–tribal cooperative agreements. 196. Snow, Alpheus Henry. The Question of Aborigines in the Law and Practice of Nations, New York: G. P. Putman’s Sons, 1921. Defines the powers of “civilized” states over their colonies, including the power of trusteeship and guardianship over dependent aboriginal tribes. American Indian land rights are included in this international overview. 197. Sokolow, Gary A. Native Americans and the Law, A Dictionary. Santa Barbara, CA: ABC-CLIO, 2000 Nearly three-hundred pages of accessible entries for non-specialists defining common terms and concepts in Indian law and describing key legislation and litigation. An introduction provides an overview of Indian law, its major tenets, and how it is made. 198. Strickland, Rennard. “The Absurb Ballet of American Indian Policy or American Indian Struggling with Ape on Tropical Landscape: An Afterword.” Maine Law Review 31, no. 1 (1979): 213–21. An Indian backlash is occurring at a crucial time when it is imperative for both the states and the nation to respect and follow the legal obligations made to tribal America. The irony is that policy with no “law is unpredictable, and that even policy with law is no guarantee against an ape turned loose on the tropical landscape.” 199. Strickland, Rennard. “The Genocidal Premise in Native American Law and Policy: Exorcising Aboriginal Ghosts.” Journal of Gender, Race & Justice 1 (Spring 1998): 325–33. There is a tendency for the numerically strong to dominate the few, despite Strickland’s hope that we

Overviews of Law and Sovereignty

would have traveled beyond Puritan control. The U.S. is still “killing the Indian to save the man.” 200. Strickland, Rennard. “The Puppet Princess: The Case for a Policy-Oriented Framework for Understanding and Shaping American Indian Law.” Oregon Law Review 62, no. 1 (1983): 11–28. Tribal people are treated like puppets. Lawyers, politicians, and courts act like puppeteers pulling strings, entangling tribal people in an overly legalized society. Continued confusion and misconception will derail this legal model at the expense of all other potential models. 201. Strickland, Rennard. “Taking the Train to Tomorrow: Learning to See Beyond the Prison Gates.” St. Thomas Law Review 9 (Fall 1996): 15–23. In looking toward the future, “affirmation, accommodation, and appropriation” are important lessons taught by the tribal communities of the southern plains and the peoples of the southeast. Even as we learn these lessons, congressional policies and court decisions are attempting to reduce tribal sovereignty. 202. Strickland, Rennard. Tonto’s Revenge: Reflections on American Indian Culture and Policy. Albuquerque: University of New Mexico Press, 1997. Collection of lectures commenting on such law and sovereignty topics as the modern challenges faced by attorneys practicing Indian law; Cherokee tribal law and courts; NAGPRA and the tribal responsibility for implementing it; and the obligation to change and supplement statute and case law to serve Indian people. 203. Talbot, Steven. Roots of Oppression: The American Indian Question. New York: International Publishers, 1981. Examines American Indian status in the U.S. from social, political, and economic perspectives. Despite their special status within the U.S. and self-determination legislation, racism, and economic exploitation are dominant influences in tribal life. 204. Tarlock, A. Dan. “Can Cowboys Become Indians? Protecting Western Communities as Endangered Cultural Remnants.” Arizona State Law Journal 31 (Summer 1999): 539–82. As the American West becomes urbanized, what will happen to the cultures that have historically composed this landscape? The irony is that many of these new minorities are whites who are asking for similar protections that tribes have tried to protect, such as inalienability of water and other resources. 205. Tebben, Carol. “An American Trifederalism Based upon the Constitutional Status of Tribal Nations.” University of Pennsylvania Journal of Constitutional Law 5 (January 2003): 318–56.

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In practice, tribes, states, and the U.S. “participate in a tripartite federalism sanctioned by constitutional language,” as has been demonstrated through ICWA. The Supreme Court failed to recognize this three-party relationship in the case of Alaska v. Native Village of Venetie Tribal Government where the village tried to tax the state for building a school on tribal lands. The court ruled that the village was not Indian country. 206. Thompson, William N. Native American Issues: A Reference Handbook. 2d edition. Santa Barbara, CA: ABC/CLIO, 2005. Update of a 1996 edition focusing on attributes of community strength. It includes a historical overview and survey of key contemporary issues, with special focus on gaming. Also includes a timeline of important events, annotations of major legislation and litigation, statistical data presented in table form, related statements by U.S. presidents, and a selected annotated bibliography. 207. Thomson, J. S. “Federal Indian Policy: A Violation of International Treaty Law.” Western State University Law Review 4 (Spring 1977): 229–71. Courts refused to examine each tribal nation as distinct, making one Supreme Court decision fit all. That practice should be eliminated. Each distinct tribal nation should decide for itself the degree of sovereignty that it wants to exercise. 208. Trakman, Leon E. “Native Cultures in a Rights Empire: Ending the Dominion.” Buffalo Law Review 45 (Winter 1997): 189–240. A group’s cultural rights become more accommodating when that culture has the responsibility to exercise those rights. Using First Nations of Canada and some U.S. illustrations, Trakman argues that there must be solidarity between tribal and Western notions of liberalism. 209. Tribe, Laurence H. “Taking Text and Structure Seriously: Reflections on Free Form Method in Constitutional Interpretation.” Harvard Law Review 108 (April 1995): 1221–1303. Stresses the importance of guidelines and structure in the study of law after this post-modern era. 210. Trosper, Ronald L. “Public Welfare and the American Indian.” Urban & Social Change Review 12 (Summer 1979): 28–31. Tribal affairs are complex because of the BIA’s multifaceted role; checkerboarded reservations creating jurisdiction mazes; an ambiguous federal role; and tribal resistance to policy decisions made without tribal input. 211. Tsosie, Rebecca. “Introduction: Symposium on Cultural Sovereignty.” Arizona State Law Journal 34 (Spring 2002): 1–14.

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Employs “cultural sovereignty” as a means to force legal scholars to move away from labeling tribal sovereignty as a function of federal Indian law. Cultural sovereignty is the process of repossessing tribal cultural legal resources. 212. Tsosie, Rebecca. “Land, Culture and Community: Envisioning Native American Sovereignty and National Identity in the Twenty-First Century.” In The Future of Indigenous Peoples: Strategies for Survival and Development, edited by Duane Champagne and Isma’il Abu-Sa’ad, 3–17. Los Angeles: UCLA American Indian Studies Center, 2003. Considers Native relationships with land and how federal law and policy have changed those relationships and the nature of tribal sovereignty. 213. Tsosie, Rebecca. “Tribal Sovereignty and Intergovernmental Cooperation.” In Tribal Water Rights: Essays in Contemporary Law, Policy, and Economics, edited by John E. Thorson, Sarah Britton, and Bonnie G. Colby, 13–34. Tucson: University of Arizona Press, 2006. Overview of federal–state–tribal relations, including the trust responsibility and agreements dealing with natural resources. 214. Tsosie, Rebecca. “Tribalism, Constitutionalism, and Cultural Pluralism: Where Do Indigenous People Fit within Civil Society?” University of Pennsylvania Journal of Constitutional Law 5 (January 2003): 357–404. A commitment to cultural pluralism may help “reconcile the values underlying tribalism and constitutionalism within a civil society.” 215. Tweedy, Ann. “The Liberal Forces Driving the Supreme Court’s Divestment and Debasement of Tribal Sovereignty.” Buffalo Public Interest Law Journal 18, (1999–2000): 147–217. Race-based interpretations of rights during the Civil Rights era diminished tribal sovereignty and moved the interpretation of tribal law cases away from treaty and inherent tribal sovereignty canons of construction. Oliphant began dismantling tribal sovereignty construction and this debasement of tribal sovereignty continued as the high court continued to misapply social contract theory. 216. Udall, Stewart L. “The State of the Indian Nation—An Introduction.” Arizona Law Review 10 (Winter 1968): 553–57. Udall reflects on the mixed success of the Kennedy–Johnson years in tribal America. The opportunity for tribal nations to determine their own destinies was a high point, such as the Colorado River Tribe’s attempt to develop tourism. Fort Hall non-

Indian lessees controlled reservation resources, revealing that lack of capital and access to corporate knowhow were problems. The passage of ICRA in 1968 was a high point. 217. Valencia-Weber, Gloria. “The Supreme Court’s Indian Law Decisions: Deviations from Constitutional Principles and the Crafting of Judicial Smallpox Blankets.” University of Pennsylvania Journal of Constitutional Law 5 (January 2003): 405–82. Examines the historic legal precedents to tribal sovereignty and describes “the shift from the enumerated powers of Congress to judicial plenary power.” The courts have extended state power on reservations. 218. Wantland, William C. “An Essay: The Ignorance of Ignorance: Cultural Barriers Between Indians and NonIndians.” American Indian Law Review 3, no. 1 (1975): 1–5. Describes tribal landholding practices, credit issues, and government paternalism. The key is to protect tribal rights through education and organization. 219. Ward, Edward J. “Minority Rights and American Indians.” North Dakota Law Review 51 (Fall 1974): 137–90. Tribal sovereignty is the key to tribal cultural preservation. P.L. 280 will continue to affect court decisions regarding the extent of tribal sovereignty, as will Congressional self-determination legislation. IGRA contradicts self-determination legislation, as evidenced by the recent confiscation of Blackfeet gaming devices by the FBI and subsequent federal court decisions supporting that action. 220. Washburn, Wilcomb E. “The Historical Context of American Indian Legal Problems.” Law and Contemporary Problems 40 (Winter 1976): 12–24. Provides a historical backdrop for understanding tribal legal issues. The lack of a unified English colonial policy provided each colony with the opportunity to pursue its own relations with tribes. They often treated tribes as individual sovereigns and dealt with them through treaties. Preemption was a common view in the nation’s early period. 221. Washburn, Wilcomb E. Red Man’s Land/White Man’s Law: A Study of the Past and Present Status of the American Indian, 2nd ed. Norman: University of Oklahoma Press, 1994; first edition, 1971. Concise study of the evolution of colonial and U.S. law as it applied to tribal nations from discovery to the mid-twentieth century. Tribal legal issues have become increasingly international since the book’s first edition was published. 222. Wax, Murray L. Indian Americans: Unity and Diversity. Englewood Cliffs, NJ: Prentice-Hall, Inc., 1971.

Overviews of Law and Sovereignty

Discussion includes legal status, education, economic conditions, pan-Indian responses, alcohol and crime, and urban conditions. Neither Indians nor whites can find solutions separately. Indians should organize to increase their political power, but doing so is difficult. 223. Wax, Murray L. and Robert W. Buchanan, eds. Solving “The Indian Problem”: The White Man’s Burdensome Business. New York: New Viewpoints, 1975. Collection of newspaper and newsmagazine articles and editorials representing viewpoints on the New Deal, Termination, pan-Indian activism and religious pan-Indianism. 224. Weaver, Jace. Other Words: American Indian Literature, Law, and Culture. Norman: University of Oklahoma Press, 2001. Thematic essays, many of which deal with literature. Part two relates to law and discusses NAGPRA, religious freedom, triangulated power, and international human rights. 225. Weil, Robert. The Legal Status of the Indian. New York: AMS, 1975. Reprint of an 1888 Columbia University thesis providing an overview of tribal sovereignty. 226. Well, Judith H. “Federal Indian Law.” Annual Survey of American Law, no. 4 (1979): 591–608. General survey of tribal legal issues, including criminal jurisdiction over tribal lands and ICRA, and arguing that litigation is the best way to settle tribal land claims. 227. Weston, Rose. “Facing the Past, Facing the Future: Applying the Truth Commission Model to the Historic Treatment of Native American Tribes in the United States.” Arizona Journal of International and Comparative Law 18 (Fall 2001): 1017–58. Governments create truth commissions to investigate all sides of an issue and create a balanced report of historical events. The reports help governments seek justice for victims. The U.S. should create a truth commission to examine tribal–federal relations. 228. White, Richard. The Roots of Dependency: Subsistence, Environment and Social Change among the Choctaws, Pawnees and Navajos. Lincoln: University of Nebraska Press, 1983. Environments that had sustained Indian populations underwent such degradation that Indians were forced into dependency upon whites for subsistence. The prevailing cause of dependency is non-Indian attempts to incorporate tribal resources, land and labor into the market culture. Of the three tribes discussed, Navajos were able to adapt most successfully until livestock reduction led to dependency.

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229. Wilkins, David E. American Indian Politics and the American Political System. Lanham, MD: Rowman & Littlefield, 2002. A general political study focusing on the major themes of tribal sovereignty and governance. The text takes a case approach to themes including state–tribal relations, reservation economies, and tribal political participation in the governing process. 230. Wilkins, David E. “A Constitutional Confession: The Permanent if Malleable Status of Indigenous Nations.” New England Law Review, 37, no. 3 (2002–2003): 473–82. Congress and tribes should work together to clarify Congress’s plenary power and determine the rights of indigenous peoples. 231. Wilkins, David E. “A Constitutional Conundrum: The Resilience of Tribal Sovereignty during American Nationalism and Expansion, 1810–1871.” Oklahoma City University Law Review 25 (Spring and Summer 2000): 87–118. Discusses the differing legal positions of AfricanAmericans and Indian tribes through an examination of judicial history. Tribal nations and the U.S. remained legal strangers. The Fourteenth Amendment denied American Indians citizenship during the expansion era. 232. Wilkins, David E. “An Inquiry into Indigenous Political Participation: Implications for Tribal Sovereignty.” Kansas Journal of Law & Public Policy 9 (Summer 2000): 732–51. Contrasts the changing face of Indian Country in the 1990s where some tribes prospered due to gaming revenues and others sank deeper into despair. Tribes are forming alliances to protect their economic assets and sovereignty. 233. Wilkins, David E. “The Reinvigoration of the Doctrine of ‘Implied Repeals:’ A Requiem for Indigenous Treaty Rights.” American Journal of Legal History 43 (January 1999): 1–26. Tribal sovereignty is inherent, and is affirmed in treaties and the Commerce Clause. Case law has sometimes restricted tribal sovereignty, but federal or case law can also enhance tribal sovereignty. Recently, the Supreme Court has failed to uphold tribal sovereignty by failing to interpret conflicting statutes that uphold the nation’s trust responsibilities toward tribal nations. 234. Wilkins, David E. and K. Tsianina Lomawaima. Uneven Ground: American Indian Sovereignty and Federal Law. Norman: University of Oklahoma Press, 2001. Discussion includes the doctrines of discovery, trust, plenary power, reserved rights, implied repeals

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and sovereign immunity. Tribes have special status in the U.S. as separate sovereigns. 235. Wilkinson, Charles F. American Indians, Time and the Law: Native Societies in a Modern Constitutional Democracy. New Haven, CT: Yale University Press, 1987. The modern era of tribal government began in 1959 with Williams v. Lee. This decision gave meaning to the former tribal treaties that represent and defend tribal sovereignty. Judges have demonstrated a rare moral sense of obligation when dealing with tribal cases that inevitably involve old treaties. 236. Wilkinson, Charles F. “Basic Doctrines of American Indian Law.” In Indians and Criminal Justice, edited by Laurence French, 75–92. Totowa, NJ: Allanheld, Osmun & Co., 1982. Treaties remain the cornerstone of tribal law, and tribal communities have a special trust relationship with the U.S. Congress has plenary power over tribal affairs, but tribes can determine their membership. 237. Wilkinson, Charles F. Blood Struggle: The Rise of Modern Indian Nations. New York: W. W. Norton, 2005. Surveys key events in this effort from the 1950s to the present, with emphasis on Native perspectives and actions. A wide variety of sovereignty-related issues are covered. There are enduring problems but Native ways will survive. 238. Wilkinson, Charles F. Indian Tribes as Sovereign Governments: A Sourcebook on Federal–Tribal History, Law, and Policy. Oakland, CA: AIRI Press, 1988. Intended as a reference for those lacking formal specialized training or to be used as a classroom text. Includes a historical introduction, treaty case studies, selected statutes, and condensed versions of important Supreme Court cases. 239. Wilkinson, Charles F. “Introduction.” Oregon Law Review 62, no. 1 (1983): 3–10. Opening remarks to a symposium on tribal issues to commemorate the publication of the 1982 revised edition of Felix Cohen’s Handbook of Federal Indian Law. Wilkinson introduces key issues in the posttermination era. 240. Williams, Robert A., Jr. The American Indian in Western Legal Thought: The Discourses of Conquest. New York: Oxford University Press, 1990. Williams focuses on Spanish, English, and American policies and the importance of laws and legal discourses in Native conquests. The account moves through the American Revolutionary era, ends with analysis of Justice Marshall’s role, and includes analysis of the Doctrine of Discovery.

241. Williams, Robert A., Jr. “Columbus’s Legacy: Law as an Instrument of Racial Discrimination Against Indigenous Peoples’ Rights of Self-Determination.” Arizona Journal of International and Comparative Law 8, no. 2 (1991): 51–74. The colonizers’ law that was exported to the western hemisphere was both racial and discriminatory. These traits continued after colonization with America’s acceptance of Marshall’s “Doctrine of Discovery.” Racism contributed to the denial of tribal peoples’ right to self-determination. 242. Williams, Robert A., Jr. “Documents of Barbarism: The Contemporary Legacy of European Racism and Colonialism in the Narrative Traditions of Federal Indian Law.” Arizona Law Review 31, no. 2 (1989): 237–78. Racism is the foundation of federal Indian law. Legal scholarship does a disservice to tribal people, treating the Cherokee cases as sacred when Georgia law now governs former tribal lands. Nineteenth-century arguments are being repeated today, especially racist ones. 243. Williams, Robert A., Jr. ”Gendered Checks and Balances: Understanding the Legacy of White Patriarchy in an American Indian Cultural Context.” Georgia Law Review 24 (Summer 1990): 1019–44. Uses tribal humor and focuses on the Iroquois to stress the need for understanding the multi-cultural perspectives of tribal America when applying outsider jurisdiction. The idea of a white patriarchy dominates Western jurisprudence. 244. Williams, Robert A., Jr. “The Medieval and Renaissance Origins of the American Indian in Western Legal Thought.” Southern California Law Review 57 (November 1983): 1–99. Traces the development of Western legal thought, as it pertains to indigenous peoples of the Western Hemisphere. Victoria’s writings were the most important because he provided nonreligious secular premises for European colonization in his Law of Nations. 245. Williams, Robert A., Jr. “‘The People of the States: Where They Are Found Are Often Their Deadliest Enemies’: The Indian Side of the Story of Indian Rights and Federalism.” Arizona Law Review 38, no. 3 (1996): 981–97. The Indian side of federalism is ignored and the result has been the creation of “White Man’s Indian Law” that is an injustice. Treaties with tribal nations must be considered as vehicles of protection, creating a sacred trust. 246. Williams, Robert A., Jr. “Sovereignty, Racism, Human Rights: Indian Self-Determination and the Postmodern

Overviews of Law and Sovereignty

World Legal System.” Review of Constitutional Studies 2, no. 2 (1995): 146–202. Indigenous peoples have difficulty forcing a dialogue with the dominant majority. Sovereignty, racism, and human rights discussions are necessary if tribal communities are going to become self-governing. 247. Wildenthal, Bryan H. Native American Sovereignty on Trial: A Handbook with Cases, Laws, and Documents. Santa Barbara, CA: ABC Clio, 2003. General survey of federal Indian law as it pertains to tribal governance. The chapters include a discussion of Marshall’s Cherokee cases and the legal history of criminal and civil jurisdiction in Indian Country. Important documents, primarily court cases, are included to cover water rights, gaming, and treaty rights. 248. Winslow, Kate. “The Last Stand?” American Indian Journal of the Institute for the Development of Indian Law, 6 (September 1980): 2–11. The federal government stands as the greatest roadblock to tribal self-sufficiency. 249. Wirth, Rex and Stefanie Wickstrom. “Competing Views: Indian Nations and Soverignty in the Intergovernmental System of the United States.” American Indian Quarterly 26 (Fall 2002): 509–25. Examples of hydropower and fisheries in the Pacific Northwest serve to illustrate intergovernmental cooperation among sovereigns. 250. Witt, Shirley Hill. “Nationalistic Trends among American Indians.” In The American Indian Today, edited by Stuart Levine and Nancy Oestreich Lurie, 93–127. Baltimore, MD: Penguin Books, Inc., 1970. Explains the historical antecedents of modern Indian nationalism and describes the current nationalistic traits, with special focus on the American Indian Chicago Conference, NCAI, and NIYC. 251. Wollock, Jeffery. “On the Wings of History: American Indians in the 20th Century.” Native Americas, 20 (Spring 2003): 14–31.

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The twentieth century began with tribal peoples labeled as the vanishing race. Through the century, tribal leaders made one contribution after another to America’s heritage, thereby becoming visible Indians. Gaming was one tool for greater economic development and political sovereignty, while crime rates rose, along with health concerns. 252. Wunder, John R., ed. Native Americans and the Law; vol. 1, Native American Law and Colonialism, Before 1776 to 1903; vol 2, Constitutionalism and Native Americans, 1903–1968; vol. 3 The Indian Bill of Rights, 1968; vol. 4, Recent Legal Issues for American Indians, 1968 to the Present; vol. 5, Native American Cultural and Religious Freedoms; vol. 6, Native American Sovereignty. New York: Garland Publishing, Inc., 1999. Collection of reprinted articles by various authors published in a six-part series. The first four volumes are chronologically organized, focusing on the historical development of Indian legal relationships, while the last two focus on specific themes. 253. Wunder, John R. Retained by the People: A History of American Indians and the Bill of Rights. New York: Oxford University Press, 1994. Indians are the only group in the nation exempt from the protection offered by the U.S. Constitution and its amendments. Instead, Native Americans have relied on Congress to interpret their legal status. Without a constitutional base, Indian rights have varied as federal attitudes have changed. 254. Zion, James W. “A Question of Sovereignty: Tribal, State and Federal Law.” Law & Anthropology 3 (1988): 147–56. Courts have developed what is known as Indian law more than Congress has, despite the Constitution’s language requiring Congress to regulate trade between tribes and the U.S.

Chapter 2 Twentieth-Century Sovereignty Overviews—Tribally Specific

259. Becker, Mary Druke. “‘We Are an Independent Nation’: A History of Iroquois Sovereignty.” Buffalo Law Review 46 (Fall 1998): 981–99. Iroquois sovereignty can be traced from their precolonial governments to the present. Despite being cut off from one another, living on different reserves in Canada and the U.S., one unifying theme has been their ability to trace their modern communities’ development and sovereignty claims to their historical Confederacy.

255. Akwesasne Notes. Basic Call to Consciousness. Summerton, TN: Native Voices, 2005. John Mohawk introduced and authored these Iroquois position papers, originally delivered to the NonGovernmental Organizations of the United Nations in Geneva in 1977. The papers describe current oppression and assert Haudenosaunee sovereignty with standing in the international community. 256. Ansson, Richard J., Jr. “The Navajo Nation’s Aneth Extension and the Utah Navajo Trust Fund: Who Should Govern the Fund after Years of Misuse?” Thomas M. Cooley Law Review 14, no. 3 (1997): 555–605. Congress added the Aneth Extension in southeast Utah to the Navajo Reservation in 1933, bringing those Navajo residents into the larger nation and giving the state of Utah 37.5 percent of oil and gas royalties to pay for the education of Navajo children and building roads. The Aneth Navajos have not benefited from self-determination policy. The only solution is to grant them their own autonomy.

260. Biolsi, Thomas. “The Political Economy of Lakota Consciousness.” In The Political Economy of North American Indians, edited by John H. Moore, 20–42. Norman: University of Oklahoma Press, 1993. Lakotas, who have many reasons to view the U.S. as an oppressor, continue to raise and honor the American flag in recognition of their special status based on treaties. They also resist assimilation and capitalism. 261. Boyce, George A. When Navajos Had Too Many Sheep: The 1940s. San Francisco, CA: Indian Historian Press, 1974. A tribal history focusing specifically on a decade of crisis, following initiation of the devastating livestock reduction program in the 1930s, and culminating in the Navajo–Hopi Rehabilitation Act. Economic conditions and educational changes are among the topics discussed.

257. Armsby, E. Raymond and John G. Rockwell. “New Directions among Northern California Indians.” American Indian 4, no. 3 (1948): 12–23. Studies the economic and legal status of Northern California tribes and asserts their right and ability to make decisions for themselves. They deserve full citizenship status in California and benefit little from federal wardship.

262. Bridgers, Ben Oshel. “A Legal Digest of the North Carolina Cherokees.” Journal of Cherokee Studies 4 (Winter 1979): 21–43. Discusses court cases, treaties, state legislation, and federal legislation that affected North Carolina and the Cherokees from 1875 to 1978.

258. Bailey, Garrick and Roberta Glenn Bailey. A History of the Navajos: The Reservation Years. Santa Fe, NM: School of American Research Press, 1986. Focuses on Navajo cultural change and continuity, including political and economic changes. They have adapted to change while maintaining cultural continuity.

263. Camp, Gregory S. “The Dispossessed: The Ojibwa and Métis of Northwest North Dakota.” North Dakota History 69, nos. 2–4 (2002): 62–79.

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Residents on the Turtle Mountain Indian Reservation have experienced the worst of federal Indian policies. Camp gives an account of their struggles in dealing with white settlers, land allotment, the IRA, and termination efforts. 264. Campisi, Jack. “Resurgence and Recognition.” In Southeast, vol. 14, edited by Raymond D. Fogelson, Handbook of North American Indians, general editor William C. Sturtevant, 760–68. Washington, DC: Smithsonian Institution, 2004. Summarizes the effects of the civil rights movement on tribes in the region, including desegregation of schools which led to closing of tribal schools and the revival of “outward expressions of tribal identity.” After the 1970s, tribes have endeavored to create formal governments, extend social and cultural programs, move toward economic self-sufficiency, form relationships with states, and gain federal recognition. 265. Canoe, Lorraine. “A Great Deal to Teach: The Endurance of Culture and Spiritualism in Indigenous Nations.” New York University Review of Law & Social Change 20, no. 2 (1993): 203–7. As a Mohawk elder, Ms. Canoe describes her view of contemporary sovereignty and ongoing external and internal tribal conflicts. 266. Clark, C. Blue. “How Bad It Really Was Before World War II: Sovereignty.” Oklahoma City University Law Review 23 (Spring and Summer 1998): 175–88. Recounts the dark history of tribal California and Oklahoma. The years from 1887 to 1945 were bleak for tribal sovereignty. 267. Clemmer, Richard O. Roads in the Sky: The Hopi Indians in a Century of Change. Boulder, CO: Westview Press, 1995. Hopis have “collectively used their culture and their sociopolitical structures” to deal with modernization in the twentieth century. Clemmer focuses on Oraibi factionalism in 1906, the IRA’s effects, a political movement termed “traditionalism,” oil and coal leasing in the 1960s, the Navajo–Hopi land dispute, and the repatriation of cultural property. 268. Colson, Elizabeth. The Makah Indians: A Study of an Indian Tribe in Modern American Society. Minneapolis: University of Minnesota Press, 1953. An ethnographic account focusing on the present and including discussion of Makah–white relations. They have assimilated culturally in ways, but remain distinct politically and in mindset. The reservation system and tribal acceptance of the IRA have contributed to their separation from white society.

269. Debo, Angie. And Still the Waters Run: The Betrayal of the Five Civilized Tribes. Princeton, NJ: Princeton University Press, 1940. Influential account of the dispossession of the Five Civilized Tribes after removal and extending through the New Deal era. The Curtis Act of 1898 extended allotment to the tribes with disastrous effects. Tribal governments and courts were phased out and allottees were swindled out of their surplus landholdings and timber resources—especially after the Burke Act. Revenues from oil leases were one of the only positive developments. The Five Tribes had a special status and were able to keep the IRA from applying to the state. 270. Doherty, Robert. “Old Time Origins of Modern Sovereignty: State-Building among the Keweenaw Bay Ojibway, 1832–1854.” American Indian Quarterly 31 (Winter 2007): 165–88. In the mid-1800s, the Keweenaw created a tribal geographical estate to define tribal autonomy that was based on sovereignty arising from the tribal people, not a treaty. 271. Downs, Ernest C. and Jenna Whitehead. “The Houma Indians: Two Decades in a History of Struggle.” American Indian Journal of the Institute for the Development of Indian Law 2 (March 1976): 2–18. Provides select documents from 1921 to 1940 on the Houma in Louisiana. 272. Ducheneaux, Frank. “The Cheyenne River Sioux.” American Indian 7 (Spring 1956): 20–30. Discusses current major problems on the reservation. 273. Evans, W. McKee. “The North Carolina Lumbees: From Assimilation to Revitalization.” In Southeastern Indians since the Removal Era, edited by Walter L. Williams, 49–71. Athens: University of Georgia Press, 1979. Documents the revitalization of Lumbee identity in Robeson County after the Civil War, their response to segregated education, and their more recent economic status, including the ill-effects of agribusiness and their attitudes toward industrialization. 274. Evans Horse, Billie and Luke E. Lassiter. “A Tribal Chair’s Perspective on Inherent Sovereignty.” St. Thomas Law Review 10 (Fall 1997): 79–86. Despite U.S. appropriation of tribal lands and sovereignty, federal authorities failed to destroy Kiowa culture. Horse negotiates with the federal and state authorities on a daily basis from a sovereign position. They must keep their culture to preserve their inherent tribal sovereignty. 275. Faiman-Silva, Sandra. Choctaws at the Crossroads: The Political Economy of Class and Culture in the Ok-

Twentieth-Century Sovereignty Overviews—Tribally Specific

lahoma Timber Region. Lincoln: University of Nebraska Press, 1997. Forced to remove to Indian Territory in the 1830s, the Choctaws created a new home in Oklahoma. Faiman-Silva focuses on Choctaw identity over time, and includes segments on the Choctaw tribal government and its role in attracting Weyerhaeuser, Tyson Foods, and gaming to the reservation. 276. Fenelon, James V. Culturicide, Resistance, and Survival of the Lakota/“Sioux Nation.” New York: Garland Publishing, 1998. Examines non-Indian domination of Lakotas, government policies, and Lakota efforts to survive. Discussion includes the Fort Laramie Treaty of 1868, efforts to repress the Ghost Dance, termination and repatriation. 277. Finger, John R. Cherokee Americans: The Eastern Band of the Cherokee in the Twentieth Century. Lincoln: University of Nebraska Press, 1991. Stresses twentieth-century tribal efforts to retain Indian identity while succeeding in white America, and also tribal success moving toward greater selfsufficiency. The tribal government is characterized by factionalism, especially along blood lines, which also correlate to divisions in socioeconomic status. Tourism is key to the economy. 278. Fischer, Ann. “History and Current Status of the Houma Indians.” In American Indian Today, edited by Stuart Levine and Nancy Oestreich Lurie, 212–35. Baltimore, MD: Penguin Books, Inc., 1970. Current challenges include prejudice and an effort to reclaim lands after oil and natural gas were found beneath Houma lands. Their economic problems are exacerbated by the lack of access to education. They recognize that resolving their problems requires outside assistance. 279. Fixico, Donald. “The Muscogee Creeks: A Nativistic People.” In Between Two Worlds: The Survival of Twentieth Century Indians, edited by Arrell Morgan Gibson, 30–43. Oklahoma City: Oklahoma Historical Society, 1986. They have been and continue to be rebellious, culturally persistent, and one of “the most difficult” tribes with which the U.S. has dealt in “war and civil matters.” They are struggling for their rights and are “increasingly in tune with today’s competitive society.” 280. Forbes, Jack D. “The Native American Experience in California History.” California Historical Society Quarterly 50 (September 1971): 234–42. Summarizes the history of Native Americans in California, including the precontact era, Spanish, Mexican, and American assaults on their lands and

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culture, and modern Indian resistance. Forbes praises Native Americans in the state for their sustained nonviolent fight against non-Indian rule and for cultural preservation since the end of armed conflict. 281. Fouberg, Erin. Tribal Territory, Sovereignty, and Governance: A Study of the Cheyenne River and Lake Traverse Indian Reservations. New York: Garland Publishing, 2000. Studies the erosion of sovereignty on these two reservations and tribal responses. The Supreme Court’s decision that Cheyenne River maintained its “Indian character” while Lake Traverse did not lead to the latter’s diminishment. The tribes endeavored to move forward despite eroded sovereignty and scattered tribal membership. 282. French, Katherine and David French. “The Warm Springs Indian Community.” American Indian 7 (Spring 1955): 3–17. The Confederated Tribes of the Warm Springs Reservation are under the IRA. The tribal timber program provides money to several tribal programs. Those who oppose discrimination are often the most vocal supporters of forced assimilation and termination. 283. Garbarino, Merwyn S. “Independence and Dependency among the Seminole of Florida.” In Political Organization of Native North Americans, Ernest L. Schusky, ed., 141–62. Washington, DC: University Press of America, 1980. Seminole political independence declined after the American Revolution as the American nation made inroads into their world. Two reservations were created in 1911 and one in 1935 for the Florida Seminoles. Despite their isolation, the Seminoles became politically dependent on the U.S. for funding and employment. Outsiders make financial, housing, public works, and employment decisions for them. 284. Gearing, Fred. “Today’s Mesquakies.” American Indian 7 (Spring 1955): 24–37. Discusses current Mesquakie conditions and stresses their ability to make their own decisions about health and education. 285. Goodrich, Chauncey Shafter. “The Legal Status of the California Indian.” California Law Review 14 (January 1926): 83–100; cont. 14 (March 1926): 157–87. Tribal delegates were elected to the 1849 constitutional convention, but were barred. Soon, the legislature passed discriminatory laws that the Supreme Court upheld and neither the Mission tribesmen nor those who claimed land by occupancy fared well in early California. The best future for them is found within the state rather than as a federal ward, because California has the necessary social resources to assist them.

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286. Gover, Kevin. “Oklahoma Tribes: A History.” American Indian Journal of the Institute for the Development of Indian Law 3 (June 1977): 2–19. Membership, inadequate constitutional governments, lack of land acquisition programs, and water rights are the most pressing issues tribal nations face in Oklahoma. 287. Hauptman, Laurence M. The Iroquois Struggle for Survival: WWII to Red Power. Syracuse, NY: Syracuse University Press, 1986. Details the history of Iroquois responses to threats to their sovereignty and land-base in the twentieth century, from which they did not always emerge victorious, but emerged as leaders of Indian resistance and “Red Power” nonetheless. 288. Hook, Jonathan B. The Alabama–Coushatta Indians. College Station: Texas A&M University Press, 1997. Covers the eprecontact era to the present with emphasis on the twentieth century and focusing on efforts to reassert identity after the effects of paternalism. 289. Hughes, Richard. “Indian Law.” New Mexico Law Review 18 (Winter 1988): 403–67. Surveys tribal cases originating in New Mexico, ranging from taxation to eagle hunting. 290. Iron Shield, Harold. “Reconciliation: The Next 100 Years.” South Dakota Law Review 36, no. 2 (1991): ix–xi. One hundred years after Wounded Knee, Governor George Mickelson issued a proclamation for reconciliation between tribal and non-tribal residents of South Dakota. For reconciliation to work, all the state’s communities have to become involved. 291. Iverson, Peter. “Building toward Self-Determination: Plains and Southwestern Indians in the 1940s and 1950s.” Western Historical Quarterly 16 (April 1985): 163–73. Federal policies during the Termination Era were not as damaging to tribal culture and sovereignty as is often assumed. Indian people took advantage of many of the tools used to assimilate them, such as education and certain forms of economic development. 292. Iverson, Peter. “The Emerging Navajo Nation.” In Southwest, vol. 10, Alfonso Ortiz, volume ed. in Handbook of North American Indians, William C. Sturtevant, general ed., 636–40. Washington, DC: Smithsonian Institution, 1983. Stresses Peter MacDonald’s role and the tribal government’s part in addressing difficult problems and promoting self-determination.

293. Iverson, Peter, ed. “For Our Navajo People”: Diné Letters, Speeches and Petitions, 1900–1960. Albuquerque: University of New Mexico Press, 2002. Collection of documents generated by Navajo political leaders and people dealing with Navajo “land, community, education, rights, government, and identity.” The volume demonstrates successful twentiethcentury efforts toward Navajo self-determination. 294. Iverson, Peter. The Navajo Nation. Albuquerque: University of New Mexico Press, 1983. History of the Navajo Nation’s quest for self-rule and advancement in the twentieth century. Iverson includes sections on the functioning of Navajo tribal government, courts, police, and the DNA legal services, as well as economic development, education, and health care. 295. Iverson, Peter. “They Shall Remain.” In The Plains Indians of the Twentieth Century, edited by Peter Iverson, 3–10. Norman: University of Oklahoma Press, 1985. Stresses the Plains tribes’ continuity, change, and survival in the face of adversity. Iverson briefly summarizes major federal Indian policies and their effects. 296. Keller, Robert H., Jr. ed. “Washington State and Tribal Sovereignty: A 1979 Debate on Indian Law.” Pacific Northwest Quarterly 79 (July 1988): 98–108. Excerpts a speech given by Slade Gorton on issues of tribal sovereignty to an unsympathetic audience, half composed of Indians, at a 1979 symposium. Responses by other speakers are also excerpted. Included are discussions of United States v. Wheeler, Oliphant, and Washington v. Yakima Indian Nation. 297. Kersey, Harry A., Jr. “Seminoles and Miccosukees: A Century in Retrospective.” In Indians of the Southeastern United States in the Late 20th Century, edited by Anthony J. Paredes, 102–19. Tuscaloosa: University of Alabama Press, 1992. Historical comparison of the two federally recognized tribes in Florida, discussing the IRA, gaming, “smoke shops,” state-tribal relations, criminal jurisdiction, and tribal politics. 298. Kickingbird, Kirke and Lynn Kickingbird. “Oklahoma Indian Jurisdiction: A Myth Unraveled.” American Indian Journal of the Institute for the Development of Indian Law 9 (Fall 1986): 4–26. The most severe state encroachment on tribal sovereignty has occurred in Oklahoma. The state did not consider Indian Country to exist because of land allotment. Compounding the problem is Congressional legislation that is specific to the Five Civilized Tribes. The tribes were once unwilling to exercise their sovereignty despite having the second largest tribal popula-

Twentieth-Century Sovereignty Overviews—Tribally Specific

27

tion in any state. Today, tribes in Oklahoma are exercising their inherent powers.

allotment, and the destruction of the White Earth’s hopes of a self-sustaining economy.

299. Knack, Martha C. and Omer C. Stewart. As Long as the River Shall Run: An Ethnohistory of Pyramid Lake Indian Reservation. Berkeley: University of California Press, 1984. Focuses on twentieth-century efforts by nonIndians to dispossess the Northern Paiutes of the land, waters, and resources. White trespassers threatened the tribal fishery and the federal government failed to come to the Paiute’s defense. Bureau of Reclamation projects violated tribal water rights and the BIA proved unable to defend against this.

305. Mills, Lawrence C. The Lands of the Five Civilized Tribes: A Treatise upon the Law Applicable to the Lands of the Five Civilized Tribes in Oklahoma. St. Louis, MO: F. H. Thomas Law Book Company, 1919. Discusses the laws, treaties, and regulations that pertain to the Five Civilized Tribes in Indian Territory. Chapters examine Congress’s plenary power, allotment, tribal land title, restrictions against land alienation on inherited and allotted lands, taxation, court cases, tribal agreements, and other pertinent documents.

300. Krakoff, Sarah. “A Narrative of Sovereignty: Illuminating the Paradox of the Domestic Dependent Nation.” Oregon Law Review 83, no. 4 (2004): 1109–1202. The Navajo Nation is working hard to be a successful sovereign. A distinct Navajo political and cultural life has emerged.

306. Mills, Lawrence C. Oklahoma Indian Land Laws. St. Louis, MO: Thomas Law Book Company, 1924; Supplement to Oklahoma Indian Land Law, Tulsa, OK: Lawyers Publishing, 1947. Published five years after the previous volume and expanded to include all Oklahoma tribes, the 1924 edition begins with an introduction on the creation of Indian Territory and then lists relevant legislation and litigation. It includes a table of cases. Chapters are divided topically and by tribe, including chapters on allotment, heirship lands, oil and gas leases, agricultural leases, wills, taxation, and state court jurisdiction.

301. Kupferer, Harriet J. “The Isolated Eastern Cherokee.” In The American Indian Today, edited by Stuart Levine and Nancy Oestreich Lurie, 143–59. Baltimore, MD: Penguin Books, 1970. Eastern Cherokees are not actively involved in the current pan-Indian political movement because their reservation geographically isolates them from other Indians, they face few threats to their land and livelihood, and they have a strong economy. 302. McSloy, Steven Paul. “Border Wars: Haudenosaunee Lands and Federalism.” Buffalo Law Review 46 (Fall 1998): 1041–59. There are legal borders dividing states, tribes and the federal government, and they keep shifting. All the issues tribal nations face today are tied to federalism. 303. Matheson, David. “Tribal Sovereignty: Preserving Our Way of Life.” Arizona State Law Journal 34 (Spring 2002): 15–20. A former chairman of the Coeur d’Alene, Matheson describes his language as having no word for sovereignty. This creates a dichotomy between tribal concepts handed down from the cultural heroes of the past and man-made authority of the present that involves federal, state, and tribal laws. 304. Meyer, Melissa. The White Earth Tragedy: Ethnicity and Dispossession at a Minnesota Reservation, 1889–1920. Lincoln: University of Nebraska Press, 1994. The 1889 Nelson Act initiated the creation of many Minnesota Chippewa reservations, including White Earth. The act opened the door for timber fraud, land

307. North Carolina Commission of Indian Affairs. “A Historical Perspective about the Indians of North Carolina and an Overview of the Commission of Indian Affairs.” North Carolina Historical Review 56 (Spring 1979): 177–87. Historical overview and program description originally presented at a meeting of the North Carolina Literary and Historical Association. The General Assembly established the Commission in 1971 as an advocacy group. Includes discussion of contemporary Indian advocacy and tribal efforts to achieve political equality in the state. 308. Paredes, Anthony J., ed. Indians of the Southeastern United States in the Late 20th Century. Tuscaloosa: University of Alabama Press, 1992. Essays by various authors, most focusing on state and federal recognition, tribal politics, and economic development issues. 309. Patterson, Brian. “A Brief View of Onkwehonwe Culture and Spirituality from the Beginning.” St. Thomas Law Review 7 (Summer 1997): 441–44. A member of the Bear Clan of the Oneida Indian Nation stresses the importance of adapting to new and changing conditions to protect sovereignty. 310. Perdue, Theda. Nations Remembered: An Oral History of the Five Civilized Tribes, 1865–1907. Westport, CT: Greenwood Press, 1980.

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Excerpted interviews collected by the WPA during the 1930s arranged into topical chapters including “law and disorder,” “economic development,” and “allotment and statehood.” 311. Peterson, John H., Jr. “Choctaw Self-Determination in the 1980s.” In Indians of the Southeastern United States in the Late 20th Century, edited by Anthony J. Paredes, 140–61. Tuscaloosa: University of Alabama Press, 1992. Discusses tribal self-determination during the 1970s, including the establishment of a new constitution in 1975 and subsequent economic development efforts. 312. Pipestem, F. Browning and William G. Rice. “The Mythology of the Oklahoma Indians: A Survey of the Legal Status of Indian Tribes in Oklahoma.” American Indian Law Review 6, no. 2 (1978): 259–328. Between 1890 and 1907, Congress passed many statutes pertaining to Indian Territory, including an enabling act that created the state of Oklahoma. This created three competing sovereign groups that resulted in the allocation of tribal authority among the federal, state and tribal governments. The losers were the tribal governments in this intense competition for control of the land, resources, and people. 313. Powless, Chief Irving, Jr. “The Haudenosaunee, Yesterday and Today: A Conflict of Concepts and Laws.” Buffalo Law Review 46 (Fall 1998): 1081–90. In 1964, Powless became one of fourteen traditional chiefs of the Onondaga Nation and was educated according to the oral traditions of his community. He presents an overview of his perceptions of tribal sovereignty. He is pleased with the land claims suits because they have tested American and Canadian honor. 314. Radlauer, Charles. “The League of the Iroquois: From Constitution to Sovereignty.” St. Thomas Law Review, 13 (Fall 2000): 341–81. Chronicles the League’s history to the present. Radlauer is at odds with any assumptions that all tribal people want an independent state. Those with small populations could not survive. 315. Record, Ian and Anne Pearse Hocker. “It’s All About the Land: The Issue Behind Wounded Knee.” Native Americas 15 (Spring 1998): 26–29. The motivation for Wounded Knee, 1973, was to restore the Black Hills to Lakota ownership. On the reservation, inherited fractionalized land, large grazing units leased to outsiders, and a shrinking production land base are significant problems. South Dakota is slowly taking control and the tribal people do not even realize this is happening.

316. Rice, W. G., Jr. “The Position of the American Indian in the Law of the United States.” Journal of Comparative Legislation and International Law 16, no. 1 (1934): 78–95. Summarizes laws applying to tribal populations onand off-reservation. Specific attention is given to New York and the peacemaker courts found on some Iroquois reservations, as well as litigation that has occurred between the state and tribes. 317. Rosenblatt, Judith and Elizabeth Ebbott, eds. Indians in Minnesota, 4th edition. Minneapolis: University of Minnesota Press, 1988; first edition, 1962. Ebbott and the League of Women Voters compiled this volume in hopes of finding solutions to problems facing tribes. This edition includes information on criminal justice, economics, social conditions, land claims, tribal-federal relations, and sovereignty. 318. Roth, George. “Overview of Southeastern Indian Tribes Today.” In Indians of the Southeastern United States in the Late 20th Century, edited by Anthony J. Paredes, 162–82. Tuscaloosa: University of Alabama Press, 1992. Emphasizes the importance of having federal or state recognition in assessing current tribal conditions. For those not federally recognized, state relationships and programs have played increasingly important roles in their development. 319. Roundtree, Helen C. “Indian Virginians on the Move.” In Indians of the Southeastern United States in the Late 20th Century, edited by Anthony J. Paredes, 9–28. Tuscaloosa: University of Alabama Press, 1992. The 1960s through the 1980s have been years of “tremendous improvements on all fronts in Indian lives.” They have actively pursued government moneys for education and economic development. They now enjoy a higher standard of living than they did prior to the civil rights era and tribal organizations are more active. 320. St. John, Lewis H. “The Present Status and Probable Future of the Indians of Puget Sound.” Washington Historical Quarterly 5 (January 1914): 12–21. The Dawes Act was a “vicious piece of legislation” that has had negative consequences. The 1905 U.S. Supreme Court Heff decision has also proved harmful. The Burke Act “cannot undo the evils resulting from the past.” Another problem is that whites are crowding Indians out of the fishing industry. 321. Sappier, James. “Tribes and Tribal Governments.” New England Law Review 37, no. 3 (2002–2003): 565–69. A Penobscot elder describes his tribe’s battles to defend and define its sovereignty in the past and present.

Twentieth-Century Sovereignty Overviews—Tribally Specific

322. Scherer, Mark R. Imperfect Victories: The Legal Tenacity of the Omaha Tribe, 1945–1995. Lincoln: University of Nebraska Press, 1999. Fifty years of legal tenacity has allowed this Nebraska tribe to achieve a “cultural and economic renaissance” during the 1980s and 1990s. They were in one of the first states to extend P.L. 280 jurisdiction, which led to disastrous results for the tribe, but after retrocession they established their own judicial and law enforcement systems. A twenty-year struggle through the ICC ended with success and led to the “Omaha Rule.” 323. Shepherd, Jeffrey P. “Land, Labor, and Leadership: The Political Economy of Hualapai Community Building, 1910–1940.” In Native Pathways: American Indian Culture and Economic Development in the Twentieth Century, edited by Brian Hosmer and Colleen O’Neill, 209–37. Boulder: University of Colorado Press, 2004. The tribe did not simply react to capitalist industrialization, wage labor and other developments, “they incorporated the changes around them into their individual and collective worldviews and agendas.” Forced economic and political change stimulated stronger tribal cohesion. Discussion includes the IRA’s effects. 324. Stewart, Omer C. “Litigation and Its Effects.” In California, vol. 8, edited by Robert F. Heizer, in Handbook of North American Indians, William C. Sturtevant general ed., 705–12. Washington, DC: Smithsonian Institution, 1978. The California constitutional convention of 1849, and subsequent state actions, denied Native civil rights. Because the U.S. Senate refused to ratify the 1850–1851 treaties with tribes, the federal government had no explicit legal obligations to California tribes until executive order reservations were created in later decades. Seeking tribal claims against the U.S. for the failed 1850–1851 treaties, the California Indians’ Jurisdictional Act became law in 1928, leading to claims case number K-344. 325. “United Indian Tribes of Western Oklahoma and Kansas Position Paper, Washington, DC, April 7–12, 1975.” American Indian Law Review 3, no. 1 (1975): 215–24. Report revealing the tribes’ recommendations for the future, as well as the priorities that they presented to their congressmen. 326. Venables, Robert W. “Iroquois Environments and ‘We The People of the United States’: Gemeinschaft and Gesellshaft in the Apposition of Iroquois, Federal, and New York State Sovereignties.” In American Indian Environments: Ecological Issues in Native American History, edited by Christopher Vecsey and Robert W. Venables, 81–127. Syracuse, NY: Syracuse University Press, 1980.

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Iroquois conceptions of sovereignty are based on a concept similar to Gemeinschaft (based on moral bonds, common interest, symbols, reciprocity, and community), while America’s is conceptually similar to Gesellschaft (based on legal contracts, self-interests, definitions, profit, and society), but increasingly compromise and interdependence between peoples are becoming necessary. 327. Vizenor, Gerald. Crossbloods: Bone Courts, Bingo, and Other Reports. Minneapolis: University of Minnesota, 1990. Discusses several issues pertaining to tribal rights, including repatriation and treaty rights, with particular focus on Minnesota tribal communities. One section involves the Thomas White Hawk murder trial in South Dakota. 328. Walker, Deward E., Jr. “Some Limitations of the Renascence Concept in Acculturation: The Nez Percé Case.” In American Indian Today, edited by Stuart Levine and Nancy Oestreich Lurie, 236–56. Baltimore, MD: Penguin Books, Inc., 1970. This tribal example clashes with the notion that a tribal and pan-tribal renascence is occurring. In some ways Nez Percé culture has experienced revival, but in others it has declined. Tribal efforts at economic development appear to be “too limited and too late.” 329. Work, Susan. “The ‘Terminated’ Five Tribes of Oklahoma: The Effect of Federal Legislation and Administrative Treatment on the Government of the Seminole Nation.” American Indian Law Review 6, no. 1 (1978): 81–141. The Seminole Nation and others members of the Five Civilized Tribes were never terminated and still have trust relationships with the federal government. In moving toward self-determination, the court in Harjo decided that the 1869 constitution is still valid. 330. Wyckoff, Theodore. “The Navajo Nation Tomorrow— 51st State, Commonwealth, or . . . ?” American Indian Law Review 5, no. 2 (1977): 267–97. Speculative piece postulating on the Navajo Nation’s future. Its large population and geographical area hold the potential for making a state or a commonwealth. At the same time, the vast resources offer promise for development or continued underdevelopment. 331. Zion, James W. “Aboriginal Rights: The Western United States of America.” Law & Anthropology 2 (1987): 195–221. Focuses on the history and status of tribal members living west of the Mississippi River and illustrates the diversity of these communities, their legal status, population, land rights, and self-rule. Despite various differences and similarities, they all have rights before the law.

Chapter 3 Treaties, Land Sales, and Treaty Rights

332. Abernathy, Col. Alonzo. “Early Iowa Treaties and Boundaries.” Annals of Iowa 9 (January 1914): 241–59. Detailed account of treaties with little subjective comment. Long excerpts of each treaty are included and specific boundary lines are listed.

this western state that joined the Union in 1850. Includes congressional documents. 336. Anderson, H. Allen. “The Delaware and Shawnee Indians and the Republic of Texas, 1820–1845.” Southwestern Historical Quarterly 94 (October 1990): 231–60. Members of these immigrant tribes played the vital role as racial and cultural go-betweens and aided the young Texas government in controlling its frontier. They aided in treaty negotiations with other tribes and in military expeditions.

333. “Abrogate Treaties? Questioning U.S. Integrity and Indian Sovereignty.” American Indian Journal of the Institute for the Development of Indian Law 5 (March 1979): 31–32. Representative John Cunningham from Washington introduced a bill in the 95th Congress abrogating all Indian treaties. This essay defines the issues and the reason why treaty abrogation is not in the best interests of all.

337. Anderson, Harry. “The Controversial Sioux Amendment to the Fort Laramie Treaty of 1851.” Nebraska History 37 (September 1956): 201–20. The Senate ratified the treaty in 1852 after reducing the period of annuity payments from fifty years to ten. Tribes were not informed of this change until 1853, at which time they approved it. It is a failed treaty.

334. Alamo, Michelle L. and Joseph A. Lucas. “Treaty Interpretation in the 20th Century: What Does “During the Pleasure of the President’” Mean?” University of Detroit Mercy Law Review 76 (Spring 1999): 821–52. The Mille Lac Band of Chippewa sued to protect their usufructuary rights based on the 1837 treaty and President Taylor’s executive order. The Supreme Court decided that Taylor’s contradictory orders were defective, permitting the tribe to maintain their usufructuary rights in Minnesota since the Equal Footing Doctrine did not end these rights when Minnesota became a state.

338. Aumann, F. R. “Dispossession of the Tribes.” Palimpsest 50 (April 1969): 234–39. Brief narrative of tribal land cessions in Iowa pointing to the adverse results for these tribes, but stressing all of these treaties were legitimate. 339. Baker, Emerson W. “‘A Scratch with a Bear’s Paw’: Anglo–Indian Land Deeds in Early Maine.” Ethnohistory 36 (Summer 1989): 235–56. Examines deeds from seventeenth-century Maine and concludes that these land transactions were done legally and fairly, and that Native Americans were not cheated out of their lands.

335. Anderson, George E., W. H. Ellison, and Robert F. Heizer, eds. Treaty Making and Treaty Rejection by the Federal Government in California, 1850–1852. Socorro, NM: Ballena Press Publications in Archaeology, Ethnology and History, No. 9, 1978. During this two-year period, the tribal lands in California were lost through incompetence, fraud, and Senate refusal to ratify the treaties that might have provided some protection to the tribal population of

340. Balman, Gail. “The Creek Treaty of 1866.” Chronicles of Oklahoma 48 (Summer 1970): 184–96. A narrative account of the treaty negotiations that ends with an analysis of what the negotiating parties gained and lost. The treaty was meant to increase federal control over all Creeks, obtain their lands, and 31

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gain access for railroads and non-Indian courts. The treaty also decided on key Reconstruction issues before they were applied elsewhere in the South. 341. Barce, Elmore. “Topenebee and the Decline of the Pottawatomi Nation.” Indiana Magazine of History 14 (March 1918): 3–12. The tribe ceded lands in northern Indiana and southern Michigan in 1826, 1828, and 1832 treaties and so “sunk into a terrible decadence from which it was never to recover.” 342. Barnes, Lela. “Issac McCoy and the Treaty of 1821.” Kansas Historical Quarterly 5 (May 1936): 29–44. The treaty sought land cessions from the Ottawa, Chippewa, and Potawatomie nations and made it possible for McCoy to establish the Carey mission in Michigan. The article is primarily a biography of McCoy who helped develop removal policy. 343. Becker, Marshall Joseph. “Lenape Land Sales, Treaties, and Wampum Belts.” Pennsylvania Magazine of History and Biography 108 (July 1984): 351–56. Before Penn’s arrival and plans for a large colony, the Lenape sold small land tracts for trading posts or farms. Penn expanded these sales by requiring all Lenape adults to sign both party’s land contract for selling land and all goods were paid at the time of sale. Wampum was often used as the medium of exchange. 344. Bernholz, Charles D. Kappler Revisited: An Index and Bibliographic Guide to American Indian Treaties. Kenmore, NY: Epoch Books, 2003. Builds from Kappler’s 1904 compilation of treaties in an effort to make it more accessible to modern researchers and to cross-reference the treaties with other source materials. The first half of the book is a bibliographic guide, the second half consists of tables. The first table lists each treaty by the ratified treaty number along with the corresponding date, page numbers from Kappler, the Statutes at Large listing, and then leads the reader to other source materials dealing with the history and culture of the signatory tribes. 345. Bigart, Robert and Clarence Woodcock, eds. In the Name of the Salish and Kootenai Nation: The 1855 Hell Gate Treaty and the Origin of the Flathead Indian Reservation. Pablo, MT: Salish and Kootenai College Press, 1996. After an introduction explaining the importance of the book, reprints related primary documents and related articles discussing the treaty council. 346. Billington, Ray Allen. “The Fort Stanwix Treaty of 1768.” New York History 25 (April 1944): 182–94. Describes Sir William Johnson’s obedience to the British government and how he followed their policies while protecting the Iroquois. He changed his stance

and supported the American position in the Fort Stanwix treaty, thus abandoning the Iroquois. 347. Birchfield, Don L. “Choctaw Legacy: How to Lose Your Country Twice in Fourteen Treaties.” In Eating Fire, Tasting Blood: An Anthology of the American Indian Holocaust, edited by MariJo Moore, 112–27. New York: Thunder’s Mouth Press, 2006. The tribe signed its first treaty with the U.S. in 1786 making a “good bargain” in accepting a protectorate, but the Southern states would defy and sabotage the agreement. The Choctaws again entered into a protectorate agreement in an 1830 treaty. The U.S., however, betrayed them and removed them from their homeland. 348. Bischoff, William N. and Charles M. Gates, eds. “The Jesuits and the Coeur D’Alene Treaty of 1858.” Pacific Northwest Quarterly 34 (April 1943): 169–91. The 1858 correspondence related to The Reverend Peter Joseph Joset’s work to conclude a treaty with the U.S. and the Coeur d’Alene at the Sacred Heart Mission in present day Idaho. 349. Blanchard, David. “The Seven Nations of Canada: An Alliance and a Treaty.” American Indian Culture and Research Journal 7, no. 2 (1983): 3–23. Looks at the 1796 “Seven Nations of Canada Treaty” among the Seven Nations, State of New York, and U.S. government ceding Mohawk claims to lands in New York. The treaty continued to cause conflict between Mohawks and New York well into the twentieth century. The Seven Nations was a voluntary alliance that was not intended as a body that had the power to negotiate land sales. Member nations alone retained that power. 350. Bonney, W. P. “Puyallup Indian Reservation.” Washington Historical Quarterly 19 (July 1928): 202–5. Published version of a speech given at a monument dedication on the reservation that offers an article-byarticle assessment of the 1855 treaty with Governor Stevens. 351. Boyd, Julian, ed. Indian Treaties Printed by Benjamin Franklin, 1736–1762. Philadelphia: Historical Society of Pennsylvania, 1938. Carl Van Doren provides the introduction to these reprinted documents describing the treaty-making process in Pennsylvania and accenting the importance of treaties as grand literature. Boyd describes Indian Affairs in Pennsylvania. Journals are reprinted describing various authors’ personal experiences at the Albany Treaty of 1745, Easton Treaty of 1758, and Lancaster Treaty of 1762. 352. Brannon, Peter A. “Indian Treaties.” Alabama Historical Quarterly 12 (1950): 242–50.

Treaties, Land Sales, and Treaty Rights

Discusses land cessions to the U.S. by the Cherokees, Chickasaws, Choctaws, and Creeks between 1786 and 1835. 353. Bronner, Edwin A. “Indian Deed for Petty’s Island.” Pennsylvania Magazine of History and Biography 89 (January 1965): 111–14. Four tribesmen in 1678 sold Petty Island to Elizabeth Kinsey for 600 gilders. This deed contradicts many of the land-holding assumptions that separated tribal and nontribal cultures. 354. Bryant, Virginia. “The Walla Walla Council.” In Indians, Superintendents, and Councils: Northwestern Indian Policy, 1850–1855, edited by Clifford E. Trafzer, 69–84. Lanham, MD: University Press of America, 1986. Three treaties were signed and three reservations established (Nez Perce, Yakima, and Umatilla) at this 1855 council. Governor Stevens misled the tribes into believing they would have time to prepare for the move to reservations before whites intruded and thus he and the treaties contributed to the Yakima War. 355. Campisi, Jack. “From Stanwix to Canandaigua: National Policy, States’ Rights, and Indian Land.” In Iroquois Land Claims, edited by Christopher Vecsey and William A. Starna, 49–65. Syracuse, NY: Syracuse University Press, 1988. The Continental Congress, New York, the Iroquois Confederacy, and individual Iroquois tribes struggled over Indian land rights and who had the right to extinguish them. New York did not respect the Continental Congress’ sole treaty-making power and the individual Iroquois tribes entered separate negotiations with outsiders. With the Treaty of Canandaigua, the Congress had moved from the “arrogant” position of believing it had the right to force treaties on tribes to the “more pragmatic policy of dealing with the individual tribes in a manner designed to calm their fears while gaining their land.” 356. Campisi, Jack. “New York–Oneida Treaty of 1795: A Finding of Fact.” American Indian Law Review 4, no. 1 (1976): 71–82. New York claims that the state treaty of 1795 was conducted under the authority of the 1793 Trade and Intercourse Act. The Oneidas claim that the treaty violated the 1790 Trade and Intercourse Act because no U.S. commissioner was present. 357. Campisi, Jack. “The Oneida Treaty Period, 1783–1838.” In The Oneida Indian Experience: Two Perspectives, edited by Jack Campisi and Laurence M. Hauptman, 48–64. Syracuse, NY: Syracuse University Press, 1988. The Oneidas lost lands in New York despite the Continental Congress’s promises to the contrary be-

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cause of New York’s “greed and cupidity,” the U.S.’s failure to meet its obligations, and tribal factionalism. 358. Campisi, Jack and William A. Starna. “On the Road to Canandaigua: The Treaty of 1794.” American Indian Quarterly 19 (Fall 1995): 467–90. This treaty, secured by Thomas Pickering, established peace between the U.S. and the Six Nations and gave the U.S. rights to the Ohio Valley, and it is also the basis for modern Iroquois assertions of sovereignty. Despite its promises, the 1794 treaty has failed to protect Iroquois lands or to exempt them from federal taxation. The treaty is also placed in the greater context of federal–Indian treaty making between 1784 and 1794, in which the U.S. continued to focus on land acquisition but did so through a policy of “conciliation and compromise.” 359. Carpenter, William Geoffrey. “Treaties—Termination by War—Provisions of Article III of the Jay Treaty of 1794 Exempting Indians from Payment of Customs Duties on Goods Purchased in Canada and Brought into the United States for Personal Use Were Abrogated by the War of 1812.” Virginia Journal of International Law 16 (Summer 1976): 951–63. In 1974, Penobscot Andrew Akins, an American citizen, entered the U.S. with hiking boots purchased in Canada. He paid $1.20 duty and filed suit claiming a violation of the Jay Treaty Article III. The customs court ruled that the 1812 war and its hostilities ended the privileges stated in Article III. 360. Chapman, Berlin B. “The Cherokee Commission, 1889–1893.” Indiana Magazine of History 42 (June 1946): 177–90. The commission negotiated eleven land cession agreements with tribes in Indian Territory. Studying this body offers insights about the nature of political patronage and appointment procedures during Harrison’s administration. 361. Chapman, Berlin B. “Final Report of the Cherokee Commission.” Chronicles of Oklahoma 19 (December 1941): 356–67. The Commission was established in 1889 to negotiate with Indian Territory tribes for cession of lands west of the ninety-sixth degree of longitude. The final report from 1893 is excerpted in full. 362. Chapman, Berlin B. ed. “Unratified Treaty with the Creeks, 1868.” Chronicles of Oklahoma 16 (September 1938): 337–45. Reprint, with a brief introduction, of a document asking that a supplemental treaty be made addressing tribal dissatisfaction with an 1866 land cessions treaty. 363. Churchill, Ward. “Implications of Treaty Relationships between the United States and Various Indian Nations.”

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In Fremont J. Lyden and Lyman H. Legters, 149–63, edited by Native Americans and Public Policy. Pittsburgh: University of Pittsburgh Press, 1992. The U.S. government understood American Indian nations as international entities and, having decided to entreat with them, obligated itself to recognize their sovereignty parallel to that of other countries. Based on this understanding, Churchill reevaluates Indian status in terms of territoriality, governance, jurisdiction, and citizenship. 364. Clampitt, Brad R. “An Indian Shall Not Spill an Indian’s Blood”: The Confederate Indian Conference at Camp Napoleon, 1865.” Chronicles of Oklahoma 83 (Spring 2005): 34–53. As the Civil War drew to a conclusion, the Five Civilized Tribes met in conference because they saw the wisdom of negotiating a separate peace with the Union and maintaining a common front in their postwar relations with the U.S.

The plan to remove coastal tribes east of the Cascade Mountains was absurd, and doing so would have led to their extermination. Treaty documents and maps are included in an extended appendix. 370. Coleman, Kenneth. “Federal Indian Relations in the South, 1781–1789.” Chronicles of Oklahoma 35 (Winter 1957–1958): 435–58. Discussion includes treaties signed during these years. The federal government, under the Articles of Confederation, lacked effective control of Indian affairs in the South during these years. 371. Coleman, Patrick. “A Rare Find: The Treaty of Washington, 1858.” Minnesota History 59 (Spring 2005): 197–99. Heralds the Minnesota Historical Society’s good fortune in finding an original copy of the document lost for 147 years, and briefly discusses the significance of the treaty.

365. Clark, Joseph Stanley. “The Eastern Boundary of Oklahoma.” Chronicles of Oklahoma 11 (December 1933): 1084–1110. The majority of the article deals with treaties, tribal land cessions and removals.

372. Conlan, Czarina C. “Site of Dancing Rabbit Creek Treaty Preserved.” Chronicles of Oklahoma 7 (September 1929): 323–28. Commemoration of the 1830 treaty with the Choctaws.

366. Clemmer, Richard O. and Omer C. Stewart. “Treaties, Reservations, and Claims.” In Great Basin, volume 11, edited by Warren L. D’Azevedo, Handbook of North American Indians, general editor William C. Sturtevant, 525–57. Washington, DC: Smithsonian Institution, 1986. Regional historic overview including an extensive chronological list of treaties and agreements, the formation of reservations and allotments (with another extensive chronological list), and continuing through allotment, the New Deal, termination, and discussing land claims. The claims cases are included in another table with docket numbers, judgment dates, and dispositions.

373. Conway, Thomas G. “Potawatomi Politics.” Illinois State Historical Society Journal 65 (Winter 1972): 395–418. Illinois tribes preserved their autonomy until the American government pressured tribes to sign treaties of removal. Americans did not always understand intra–tribal alliances and instead focused on isolated band leaders, believing that tribal autonomy had declined more than it had.

367. Clifton, James. “The Last Great Indian Treaty in the Old Northwest.” Chicago History 9 (Summer 1980): 86–97. The 1833 Potawatomi Treaty initiated their removal to the West. The treaty was a good business deal benefiting both parties. 368. Clowser, Don C. Dakota Indian Treaties: From Nomad to Reservation. Deadwood, SD: Don C. Clowser, 1974. History of the Teton Dakotas composed mostly of reprinted treaties and other primary materials. 369. Coan, C. F. “The First Stage of Federal Indian Relations in the Pacific Northwest, 1849–1852.” Oregon Historical Society Quarterly 22 (March 1921): 46–89.

374. Covington, James Warren. “Federal Relations with the Colorado Utes, 1861–1865.” Colorado Magazine 28 (October 1951): 257–66. Narrative beginning with the first treaty signed with the U.S. in 1849 and ending with the Treaty of 1864. 375. Danziger, Edmund J., Jr. “They Would Not Be Moved: The Chippewa Treaty of 1854.” Minnesota History 43 (Spring 1973): 175–85. Agent Henry C. Gilbert met with Mississippi River Chippewa chiefs and headman at the village of La Pointe to negotiate for lands on Lake Superior. Even though the treaty allowed the Chippewa bands to retain a portion of their traditional lands and continue their hunting–fishing–trapping–gathering economy, the treaty ultimately led to impoverishment, loss of their mineral resources and denouement of their timber. 376. Davis, Edward. “Mississippi Choctaws.” Chronicles of Oklahoma 10 (June 1932): 257–66.

Treaties, Land Sales, and Treaty Rights

In an 1820 treaty, the tribe ceded about 4 million acres in Mississippi, but they had not been removed before the 1830 treaty of Dancing Rabbit Creek. Article XIV of that treaty allowed tribal members to accept state citizenship and remain. Claimants under this treaty were treated unjustly and many Choctaws were landless by the 1850s. More recent federal treatment has offered “belated justice.” 377. Day, R. Morris. “The Dissident Chief.” In Forked Tongues and Broken Treaties, edited by Donald E. Worcester, 329–52. Caldwell, ID: Caxton Printers, 1975. Narrative account of the Modoc–American conflict with brief discussion of treaty negotiations including one negotiated by J. W. P. Huntington in 1864. 378. Day, R. Morris. “Thief Treaties and Lie-Talk Councils.” In Forked Tongues and Broken Treaties, edited by Donald E. Worcester, 354–81. Caldwell, ID: Caxton Printers, 1975. Survey of Nez Percé–U.S. relations in the nineteenth century with emphasis on 1855 treaty negotiations and ending with the Nez Percé war. The tribe had unfortunately trusted in U.S. treaties and, as a result, faced cultural destruction, and land loss. 379. Decker, Craig A. “The Construction of Indian Treaties, Agreements, and Statutes.” American Indian Law Review 5, no. 2 (1977): 299–311. One of the cannons of judicial interpretation of federal Indian law is that tribal “treaties, agreements, and statutes are to be liberally construed in favor of the Indians.” This judicial precedent should not be applied to “unilaterally enacted statutes, especially statutes permitting” tribes to file suits in court against the U.S. 380. de la Hunt, Jill. “The Canons of Indian Treaty and Statutory Construction: A Proposal for Codification.” University of Michigan Journal of Law Reform 17 (Spring 1984): 681–712. The Supreme Court in recent years has retreated from one of the canons of treaty construction that ambiguous treaties should be resolved in favor of the tribal party. This vacillation hurts tribal rights and sovereignty. To correct this imbalance, de la Hunt proposes that the non-tribal party must have proof of their claim and presents a model statute to codify tribal treaty canons to eliminate any vacillation in interpretation. 381. Deloria, Vine, Jr. “Researching American Indian Treaties: Northwest and Southwest.” American Indian Journal of the Institute for the Development of Indian Law 1 (November 1975): 15–17.

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Discusses the treaty research project undertaken by the Institute. Treaties not included in Kappler were discovered. 382. Deloria, Vine, Jr. and David E. Wilkins. Tribes, Treaties, & Constitutional Tribulations. Austin: University of Texas Press, 1999. There are implicit and explicit Constitutional sections that pertain to tribal nations and people. Since the Constitution does not provide any legal tribal rights, treaties should become the documents that govern tribal relations with the U.S. 383. DeMallie, Raymond. “American Indian Treaty Making: Motives and Meanings.” American Indian Journal of the Institute for the Development of Indian Law 3 (January 1977): 2–10. Treaties formalized relationships between tribal nations and the U.S., but tribal and American negotiators had different motives and objectives. Language was a problem that often prevented their motives and objectives from being heard. 384. DeMallie, Raymond J. “Touching the Pen: Plains Indian Treaty Councils in Enthnohistorical Perspective.” in Ethnicity on the Great Plains, edited by Frederick C. Luebke, 38–53. Lincoln: University of Nebraska Press, 1980. Government tribal proceedings are ethnohistorical documents demonstrating tribal consensus politics. Tribal leaders were not pawns, but rather used political strategies to fight white desires. Often they used subtle methods to convey important points, including ritual aspects, demands, and present distribution, and they employed religious and moral justification to get what they wanted. 385. De Puy, Henry F. A Bibliography of the English Colonial Treaties with the American Indians Including a Synopsis of Each Treaty. Union, NJ: Lawbook Exchange, Ltd., 2001; first edition, New York: Lennox Club, 1917. These reprinted documents begin with the treaty of 1677 signed between England and the Virginia Native Americans and end with the Fort Pitt conference minutes of 1768. 386. DeRosier, Arthur H., Jr. “The Cherokee Indians: Disaster through Negotiation.” In Forked Tongues and Broken Treaties, edited by Donald E. Worcester, 33–70. Caldwell, ID: Caxton Printers, 1975. Surveys the tragic history of Cherokee treaty making with the English and Americans, with particular focus on the Treaty of New Echota and broken U.S. promises. 387. DeRosier, Arthur H., Jr. “The Choctaw Indians: Negotiations for Survival.” In Forked Tongues and Broken

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Treaties, edited by Donald E. Worcester, 1–31. Caldwell, ID: Caxton Printers, 1975. The 1820 Treaty of Doak’s Stand exemplifies the way U.S. treaties regarded Indians as inferior uncivilized hunters. Many of the 1820 treaty’s articles were never carried out. It was an “important” and a “broken” document that initiated a series of broken treaties and Indian removals. 388. DeRosier, Arthur H., Jr. “The Destruction of the Creek Confederacy.” In Forked Tongues and Broken Treaties, edited by Donald E. Worcester, 72–108. Caldwell, ID: Caxton Printers, 1975. In the Fort Jackson Treaty of 1814, Andrew Jackson did not distinguish between friend and foe, in fact taking more lands from the former. The U.S. could not break this treaty that took lands for nothing in exchange. 389. De Valigner, Leon, Jr. “Indian Land Sales in Delaware.” Bulletin of the Archaeological Society of Delaware, 3 (February 1940): 29–32; 3 (February 1941): 25–33. Discusses early treaties with tribal nations in Delaware, land cessions beginning with the Dutch purchase in 1630, and tribal land tenure. By 1753, the tribal nations had vacated Delaware. 390. Druke, Mary A. “Iroquois Treaties: Common Forms, Varying Interpretations.” In The History and Culture of Iroquois Diplomacy: An Interdisciplinary Guide to the Treaties of the Six Nations and Their League, edited by Francis Jennings, William N. Fenton, Mary A. Druke, and David R. Miller, 85–98. Syracuse, NY: Syracuse University Press, 1985. Describes treaty protocol and how various actors in these proceedings interpreted the significance of actions differently, with Europeans placing more emphasis on writing and Iroquois on wampum belts. 391. Drummond, A. M. and Richard Moody. “Indian Treaties: The First American Dramas.” Quarterly Journal of Speech 38 (February 1953): 15–24. Indian treaties were theatrical performances of the highest order. The authors analyze metaphors that appear in many early tribal treaties. 392. Duran, Elizabeth and James Duran, Jr. “Indian Rights in the Jay Treaty.” Indian Historian 6 (Winter 1973): 33–37. The St. Regis tribe initiated a 1968 tribal demonstration in an attempt to secure their rights under the 1794 Jay Treaty. These rights include free border crossing as stipulated in Article III. 393. Dustin, Fred. “The Treaty of Saginaw, 1819.” Michigan History 4 (January 1920): 243–78.

Lewis Cass negotiated this treaty, mainly with Chippewa in Michigan, in the fall of 1819. The tribes ceded lands in southern Michigan. 394. Dustin, Fred. The Saginaw Treaty of 1819 between General Lewis Cass and the Chippewa Indians. Saginaw, MI: Committee on History and Records, 1919. Narrative account of the treaty council leading to the cession of about six million acres in Michigan. The treaty is reprinted as an appendix. 395. Edmunds, R. David. ‘Nothing has been Effected’: The Vincennes Treaty of 1792.” Indiana Magazine of History 74 (March 1978): 23–35. With Indian policy in the region in shambles, Knox decided to negotiate with the tribes rather than pursue further military action. He likewise decided to rebuild American military forces. This decision proved wise because the Senate refused to ratify a peace treaty that did not guarantee U.S. preemptive rights to Indian lands. 396. Essin, Emmett M., III. “The Southern Cheyennes.” In Forked Tongues and Broken Treaties, edited by Donald E. Worcester, 110–62. Caldwell, ID: Caxton Printers, 1975. Historical survey of white–Cheyenne relations and treaties that were marked by non-Indian coercion and lies. The first such treaty was signed in 1825. This and other treaties are analyzed article-by-article, including Fort Laramie (1851), Fort Wise (1861), The Little Arkansas (1865), and Medicine Lodge (1867). 397. Farr, William E. “‘When We Were First Paid’: the Blackfoot Treaty, the Western Tribes, and the Creation of the Common Hunting Ground, 1855.” Great Plains Quarterly 21 (Spring 2001): 131–54. This treaty diverged from the emerging reservation policy as it encouraged traditional tribal economies. It was to be only a temporary solution, with reservation establishment to follow. The government used the common hunting ground as a “safety valve, for it would relieve economic pressure to support the transition.” 398. Fay, George E., complier and editor. Treaties, and Land Cessions, between the Bands of the Sioux and the United States of America, 1805–1906. Occasional Publications in Anthropology, Ethnology Series, no. 24. Greeley, CO: Museum of Anthropology, University of Northern Colorado, 1972. A three-part collection of original documents without introductions. Fay also offers volumes published in the 1970s and 1980s dealing with other tribes including the Potawatomi, Crow, Comanche, Kiowa, Arikara, Gros Ventre, and Mandan.

Treaties, Land Sales, and Treaty Rights

399. Felch, Alpheus. “The Indians of Michigan and the Cession of Their Lands to the United States by Indian Tribes.” Michigan and Pioneer Historical Collections 26 (1894): 274–97. The author was a former Michigan governor who was a contemporary to some of the Michigan treaties with the Wyandot, Pottawatomi, and Chippewa. He describes tribal treaties from 1784 to 1842 as well as the creation of Michigan reservations. 400. Fenton, William N. “Structure, Continuity, and Change in the Process of Iroquois Treaty Making.” In The History and Culture of Iroquois Diplomacy: An Interdisciplinary Guide to the Treaties of the Six Nations and Their League, edited by Francis Jennings, William N. Fenton, Mary A. Druke, and David R. Miller, 3–36. Syracuse, NY: Syracuse University Press, 1985. The treaty-making process reflected the interaction of Native and non-Native cultures. Fenton describes Iroquois society and treaty protocol. 401. Fisher, Andrew H. ‘This I Know from the Old People’: Yakama Indian Treaty Rights as Oral Tradition.” Montana: Magazine of Western History 49 (Spring 1999): 2–17. The modern history of the Yakama people demonstrates the conflict between oral tradition and literacy in the interpretation of treaties. When applied to fishing and hunting rights, Native orality created an oral tradition different from the written record. By remembering what their elders have told them, Yakamas have maintained an interpretation of the treaty consistent with their memories and culture. 402. Fisher, Robert L. “The Treaties of Portage des Sioux.” Mississippi Valley Historical Review 19 (March 1933): 495–508. In 1815, the U.S. conducted treaty negotiations with tribal nations at Portage des Sioux for peace, friendship, returning of stolen property, and annuities. The resulting treaties ended controversies between the Sioux, Sac, and Fox, and other tribes. 403. Flanagan, John K. “The Invalidity of the Nez Percé Treaty of 1863 and the Taking of the Wallowa Valley.” American Indian Law Review 24, no. 1 (1999–2000): 75–98. The non-treaty Nez Percé, including Chief Joseph’s band, argued that Chief Lawyer had no authority to sign this treaty. The U.S. Court of Claims should have found the treaty invalid and should have recognized Chief Joseph’s band’s claim to the valley. 404. Foreman, Carolyn Thomas. “The Lost Cherokee Treaty.” Chronicles of Oklahoma 33 (Summer 1955): 238–45.

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An 1804 treaty was lost for twenty years and was not acted upon by the federal government until 1824. The article primarily consists of reprinted correspondence. 405. Foreman, Grant. “The Journal of the Proceedings at Our First Treaty with the Wild Indians, 1835.” Chronicles of Oklahoma 14 (December 1936): 393–418. Foreman provides background for this reprint of a first-hand account of the treaty council at Fort Gibson with the Comanches and other tribes preparing the way for settling removed eastern tribes in their territories. 406. Foreman, Grant. “The Texas Comanche Treaty of 1846.” Southwestern Historical Quarterly 51 (April 1948): 313–32. Indian agent Pierce M. Butler convinced the Texas tribes to sign a treaty in 1846. Texas was seeking control of tribes before becoming a state. 407. Franks, Kenny A. “An Analysis of the Confederate Treaties with the Five Civilized Tribes.” Chronicles of Oklahoma 50 (Winter 1972–1973): 458–73. Provides details on similarities and differences among the various tribal treaties. The Confederacy was incapable of fully carrying out commitments it made in these agreements, but the tribes nevertheless proved loyal to the CSA. 408. Franks, Kenny A. “The Implementation of the Confederate Treaties with the Five Civilized Tribes.” Chronicles of Oklahoma 51 (Spring 1973): 21–33. The CSA had offered services and wider sovereign rights for tribes but was unable to deliver on all scores. Union military occupation of many areas and the dominance of military over civilian control impeded the Confederate’s ability to fulfill their treaty obligations to tribes on civil matters. 409. Frederick, Davis T. “The Seminole Council, October 23–25, 1834.” Florida Historical Society Quarterly 7 (April 1929): 330–50. The U.S. gained Florida through claims against the Spanish, and then negotiated with the Seminoles for their land titles. The 1834 council that discussed their removal is reprinted. 410. Garner, Van Hastings. “The Treaty of Guadalupe Hidalgo and the California Indians.” Indian Historian 9 (Winter 1976): 10–13. Article IX prohibited removal of the Native Americans who found themselves on the American side of the international line. The U.S. did not honor this provision, especially the citizenship proviso and language stating that tribal property rights would be recognized. The U.S. agreed to continue the Mexican system, but did not.

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411. Gates, Charles M. ed. “The Indian Territory of Point No Point.” Pacific Northwest Quarterly 46 (April 1955): 52–58. Introduces excerpts from the 1855 proceedings of “The Commission to Hold Treaties with the Indian Tribes in Washington Territory and the Blackfoot Country” and the resulting treaty. 412. Haake, Claudia. “Identity, Sovereignty, and Power: The Cherokee–Delaware Agreement of 1867, Past and Present.” American Indian Quarterly 26 (Summer 2002): 418–35. The U.S. supervised this treaty to facilitate the removal of the Delaware to former Cherokee lands in Indian Territory. In 1977, Ross Swimmer declared the Delaware were terminated, but this treaty provided standing for both nations’ sovereignty, and in the process has pitted both tribal nations against each other. 413. Hacker, Peter R. “Confusion and Conflict: A Study of Atypical Responses to Nineteenth Century Federal Indian Policies by the Citizen Band Potawatomis.” American Indian Culture and Research Journal 13, no. 1 (1989): 79–95. In 1861, the federal government entered into a treaty with the Citizen Band of the Potawatomi giving them individual allotments and citizenship. Members of the band were at first pleased with these terms, but soon regretted agreeing to them as they lost their land and legal protections. Out of desperation, those members of the band who had not yet accepted citizenship agreed to another treaty in 1867 moving them from Kansas to Oklahoma where they were forced to share a reservation with Shawnees. In the face of tensions between the tribe and complications posed by the Dawes Act, the Citizen Band Business Committee shrewdly and successfully protected tribal interests, exploiting “their dual legal status as Indian and citizens, instead of allowing it to exploit them.” 414. Hagan, William T. “The Sauk and Fox Treaty of 1804.” Missouri Historical Review 51 (October 1956): 1–7. Governor Harrison negotiated this treaty, capitalizing on tension following the scalping of white settlers. It ultimately led to the Black Hawk War three decades later. 415. Hauptman, Laurence M. “Command Performance: Philip Schuyler and the New York State–Oneida “Treaty” of 1795.” In Laurence M. Hauptman and L. Gordon McLester III, eds. The Oneida Indian Journey: From New York to Wisconsin, 1784–1860. Madison: University of Wisconsin Press, 1999, 38–52. Oneidas ceded over 100,000 acres in this treaty. Schuyler and his cronies violated federal Indian policy

and the Trade and Intercourse Acts of 1790 and 1793 by negotiating the treaty without federal approval. 416. Hawkinson, Ella. “The Old Crossing Chippewa Treaty and Its Sequel.” Minnesota History 15 (September 1934): 282–300. A study of treaties negotiated with the Red Lake and Pembina tribes in 1851, 1863, and 1864. Reformers achieved a “slight triumph” with the 1864 treaty. 417. Heilbron, Bertha L. “Frank B. Mayer and the Treaties of 1851.” Minnesota History 22 (June 1941): 133–56. Eastern artist Mayer was at the Traverse de Sioux treaty and recorded his impressions. This treaty opened a large portion of eastern Minnesota to homesteading. 418. Heizer, Robert. The Eighteen Unratified Treaties of 1851–1852 between the California Indians and the United States Government. Berkeley: University of California Berkeley Archaeological Research Facility, Department of Anthropology, 1972. After a brief interpretive introduction, the texts of the treaties are reprinted. Three commissioners made these treaties with tribes but the Senate refused to ratify them. The treaty-making process in these cases was “poorly conceived” and based on insufficient information, and the treaties may simply have been farcical. 419. Henderson, Archibald. “The Treaty of Long Island of Holston, July 1777.” North Carolina Historical Review 8 (January 1931): 55–116. The Overhill Cherokees surrendered lands, including those east of the Blue Ridge. 420. Henslick, Harry. “The Seminole Treaty of 1866.” Chronicles of Oklahoma 48 (Autumn 1970): 280–94. In addition to provisions concerning freedmen, the 1866 treaty again forced resettlement, with some Seminoles being “mistakenly allowed” to settle on Creek lands. But the treaty also ushered in four decades of progress and stability. 421. Hill, Burton S. “The Great Indian Treaty Council of 1851.” Nebraska History 47 (March 1966): 85–110. Narrative account of the Fort Laramie Treaty, which Hill views in a positive light. 422. Hilliard, Sam B. “Indian Land Cessions West of the Mississippi.” Journal of the West 10 (July 1971): 493–510. A brief general survey of Indian land cessions in the Trans-Mississippi West that includes some map illustrations. 423. Hoig, Stan. White Man’s Paper Trail: Grand Councils and Treaty-Making on the Central Plains. Boulder, CO: University Press of Colorado, 2006.

Treaties, Land Sales, and Treaty Rights

Studies U.S. and Republic of Texas treaty making with tribes in this region. Treaty making could have been the most humane way non-Indians could have advanced on tribal lands, but instead white treatymaking victimized them. Nevertheless, treaties offered some modicum of protection against “outright genocide.” Specific flaws in the treaty process are detailed, including dishonest dealings, oversight problems, the failure to honor them, and white intrusions in defiance of treaty terms. 424. Holmes, Jack D. L. “Spanish Treaties with West Florida Indians, 1784–1802.” Florida Historical Quarterly 48 (October 1969): 140–54. Describes the two types of treaties that tribes signed with the Spanish during these years. One type was defensive treaties while the other was tribal land cessions so that the Spanish could build defensive outposts. The Spanish were able through treaties to build barriers against the Americans and the tribes maintained their obligations to keep Americans at bay, forcing the Americans to try and win the tribes’ loyalties. 425. Hoxie, Frederick E. Treaties: A Source Book. Occasional Papers in Curriculum Series, No. 12, Newberry Library, Chicago, 1992. Discusses the history of treaty making in the U. S. and treaties’ importance as classroom teaching sources. A comparison is made between treaties the U.S. signed with tribal nations and the New Zealand experience. 426. Hoxie, Frederick E. “Why Treaties.” In Buried Roots and Indestructible Seeds: The Survival of American Indian Life in Story, History, and Spirit, edited by Mark A. Lindquist and Martin Zanger, 85–108. Madison, University of Wisconsin Press, 1993. The Constitution can be contradictory when discussing tribal treaties and equal rights. Tribal treaties are part of the nation’s legal history and are similar to other moral claims such as free speech. Treaties have also become symbolic for tribal peoples as bonds of community alliance. 427. Hryniewicki, Richard J. “The Creek Treaty of November 15, 1827.” Georgia Historical Quarterly 52 (March 1968): 1–15. Narrative account of the negotiations and ratification of the treaty in which the Creek ceded the last portion of their lands in Georgia to the U.S. government. They then moved to Alabama. 428. Hryniewicki, Richard J. “The Creek Treaty of Washington, 1826.” Georgia Historical Quarterly 48 (December 1964): 425–41. Describes the dispute between the Upper and Lower Creeks leading up to the treaty, the negotiation

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process, and the ratification process. Georgia continued to protest the authority of the federal government to annul the preceding Treaty of Indian Springs. The Governor thus authorized the surveying of Creek lands prematurely, but President Adams successfully opposed Georgia’s actions. 429. Humphreys, Glen A. “The Crow Indian Treaties of 1868: An Example of Power Struggle and Confusion in United States Indian Policy.” Annals of Wyoming 43 (Spring 1971): 73–89. Crows attempted to use the treaties to preserve their lands and gain protection against other tribes. One treaty was ratified and the other was not. They were also entwined with a power struggle in Congress over whether the House or Senate would control Indian affairs. Crow successes in retaining portions of their homelands are remarkable considering this political environment. 430. Ibbotson, Joseph H. “Samuel Kirkland, the Treaty of 1792, and the Indian Barrier State.” New York History 19 (October 1938): 374–91. Kirkland, from New York, worked to make peace between the Six Nations and western tribes. The 1792 treaty promised Canada and the U.S. a degree of security. 431. The Institute for the Development of Indian Law. Chronological List of Treaties and Agreements Made by Indian Tribes with the United States; Treaties and Agreements and the Proceedings of the Treaties and Agreements of the Tribes and Bands of the Sioux Nation; Treaties and Agreements of the Indian Tribes of the Pacific Northwest; Treaties and Agreements of the Indian Tribes of the Northern Plains; Treaties and Agreements of the Five Civilized Tribes; Treaties and Agreements of the Indian Tribes of the Southwest (including Western Oklahoma); Treaties and Agreements of the Chippewa Indians; Treaties and Agreements of the Indian Tribes of the Great Lakes Region. Washington, DC: Institute for the Development of Indian Law, 1973. Multi-volume collection of treaties and agreements related to various regions, including unratified ones, with volume introductions by Vine Deloria, Jr. and others. 432. Jackson, Leroy. “Sioux Land Treaties.” Collections of the State Historical Society of North Dakota 3 (1910): 498–528. Examines legal thought through the Marshall and Taney decisions and discusses the injustices of Sioux land cessions. 433. Janke, Ronald A. “Chippewa Land Losses.” Journal of Cultural Geography 2 (Spring/Summer 1982): 84–100.

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Between 1819–1887, the Chippewa of the northern Midwest ceded lands in Michigan, eastern Minnesota, and Wisconsin. Despite contemporary maps showing blocks of tribal lands, 70 percent of these lands are in non-Indian ownership. 434. Janke, Ronald A. “The Loss of Indian Lands in Wisconsin, Montana and Arizona.” In A Cultural Geography of North American Indians, edited by Thomas E. Ross and Tyrel G. Moore, 127–48. Boulder, CO: Westview Press, 1987. Documents the effects of treaties and allotment on Indian land holdings in these states with illustrative charts, maps, and tables. 435. Jemison, G. Peter. “Sovereignty and Treaty Rights— We Remember.” St. Thomas Law Review 7 (Summer 1995): 631–43. Describes the importance of the 1794 Treaty of Canandaigua at the time of signing and its importance today. It has never been abrogated, just violated. 436. Jemison, G. Peter and Anna M. Schein, eds. Treaty of Canandaigua 1794: 200 Years of Treaty Relations between the Iroquois Confederacy and the United States. Santa Fe, NM: Clear Light Publishers, 2000. Essays by various authors stressing the treaty’s importance as an agreement between sovereigns to live in peace and friendship—an agreement that the Haudenosaunee have remembered but the U.S. has not. Speeches are included by Chief Clear Sky, Clayton Logan, and Chief Jake Swamp. Jemison’s introduction stresses the timelessness of treaties and Haudenosaunee confidence about their sovereign status. John C. Mohawk provides the preface and offers historical background to the treaty. Other commentary commemorating the treaty and its historical legacy, and discussing enduring Iroquois sovereignty, is provided by Joy A. Bilharz, Doug George-Kanentiio, Ron LaFrance, Chief Oren Lyons, Chief Irving Powless, Jr., Daniel K. Richter, Robert W. Venables, and Paul Williams. Laurence M. Hauptman discusses the Seneca claim of ownership of the islands in the Niagara River, which he considers valid. 437. Jennings, Francis, William N. Fenton, Mary A. Druke, and David R. Miller, eds. The History and Culture of Iroquois Diplomacy: An Interdisciplinary Guide to the Treaties of the Six Nations and Their League. Syracuse, NY: Syracuse University Press, 1985. Aims to assist researchers in studying Iroquois history, diplomacy, government, and treaty making and to demonstrate that the Iroquois had acting governments. It includes essays by various authors, an extensive descriptive time line, gazetteer, and brief encyclopedia of key actors.

438. Johansen, Bruce E. Enduring Legacies, Native American Treaties and Contemporary Controversies. Westport, CT: Praeger, 2004. Essays by various authors hoping to stir discussion of the importance of treaties in relation to “contemporary laws and issues.” Vine Deloria, Jr. provides a foreword stressing the need for increased study of Indian treaties. Some essays focus on Canada. 439. Jones, Dorothy V. License for Empire: Colonialism by Treaty in Early America. Chicago: University of Chicago Press, 1982. From 1763 to 1796, treaty making can be divided into four periods: (1) Accommodation, 1763–1768; (2) Transformation, 1768–1975; (3) Chaos, 1776–1786; and (4) Colonialism, 1787–1996. 440. Jones, Dorothy V. “British Colonial Indian Treaties.” In History of Indian–White Relations, volume 4, edited by Wilcomb E. Washburn, Handbook of North American Indians, general editor William C. Sturtevant, 185–94. Washington, DC: Smithsonian Institution, 1988. Native American and British diplomatic traditions blended and contested, yielding a treaty system that was “complex, flexible, completely satisfying to none, and yet—on the whole—a remarkable achievement for people whose principles and interests were frequently in opposition.” A table lists dates, involved parties, and provisions of treaties from 1607–1775. 441. Jones, Douglas C. The Treaty of Medicine Lodge: The Story of the Great Treaty Council as Told by Eyewitnesses. Norman: University of Oklahoma Press, 1966. Narrative of the 1867 treaty with the Southern Plains tribe that outlined the creation of specific reservations and was the first Indian treaty with “civilizing” provisions. 442. Kane, Lucile M. “The Sioux Treaties and the Traders.” Minnesota History 32 (June 1951): 65–80. Minnesota fur traders during the mid-1800s wanted tribes to sign treaties in hope that the tribes would thus acquire monetary compensation that could be used to pay off trading debts. Men connected to fur trading companies, like Henry Hastings Sibley, used their influence to encourage tribes to sign treaties, and also attempted to influence the commissioners negotiating those treaties. 443. Kappler, Charles J., comp. and ed. Indian Affairs: Laws and Treaties. Washington, DC: Government Printing Office, 1904; also published as Indian Treaties, 1778–1883. New York: Interland Publishing, 1972. Volume one reproduces related acts chronologically by each congressional session, along with executive orders, proclamations, and appendices, which include

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indexes, miscellaneous documents and some Supreme Court decisions. The second volume is composed of Indian treaties. Subsequent volumes continued to compile legislation by congressional session with some additional documents (such as Indian claims cases). Volume three was published in 1913, volume four in 1927, and five in 1941. The treaties volume was reprinted in 1972 as Indian Treaties, 1778–1883. 444. Keller, Robert H., Jr. “An Economic History of Indian Treaties in the Great Lakes Region.” American Indian Journal 4, no. 2 (1978): 2–20. Estimates the actual value of resources in the Great Lakes as opposed to what tribal nations actually received for them. Land was not the only property— furs, rice, timber, were also tribal properties that were undervalued, or for which the tribes did not receive compensation. The reason was that the U.S. operated on the business model of buying at the lowest possible price.

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Treaties negotiated with the tribes of Louisiana and West Florida aided the Spanish in keeping the British and their subjects confined. 450. Klein, Christine A. “Treaties of Conquest: Property Rights, Indian Treaties, and the Treaty of Guadalupe Hidalgo.” New Mexico Law Review 26 (Spring 1996): 201–51. The sad result of this treaty was that it minimized tribal rights in the area that Mexico ceded, thus penalizing tribes who faced a new wave of conquest. 451. Knabenshue, S. S. “Indian Land Cessions in Ohio.” Ohio Archaeological and Historical Publications 9 (1902): 249–55. Lists treaties and includes two numbered maps showing ceded lands.

445. Keller, Robert H., Jr. “On Teaching Indian History: Legal Jurisdiction in Chippewa Treaties.” Ethnohistory 19 (Summer 1972): 209–18. Illustrates the use of Chippewa treaties as a teaching tool.

452. Kvasnicka, Robert M. “United States Indian Treaties and Agreements.” In History of Indian–White Relations, volume 4, edited by Wilcomb E. Washburn, Handbook of North American Indians, general editor William C. Sturtevant, 195–201. Washington, DC: Smithsonian Institution, 1988. Brief overview of the treaty-making process with a concluding sources section.

446. Kelsey, Harry. “The California Indian Treaty Myth.” Southern California Quarterly 55 (Fall 1973): 225–38. After the U.S. gained possession of California, Congress authorized treaty negotiations with the region’s tribes. Based on vague orders, three commissioners began to make treaties. Because of the public dislike for the high costs of negotiating these treaties, the treaty system ended.

453. Lambert, Paul F. “The Cherokee Reconstruction Treaty of 1866.” Journal of the West 12 (July 1973): 471–89. Factionalism caused harm to Cherokee interests in the treaty making process. But Cherokees did succeed in negotiating “an adequate treaty which maintained tribal unity and enabled the Cherokee Nation to retain its autonomy for forty more years.”

447. Kickingbird, Kirke. “What’s Past Is Prologue: The Status and Contemporary Relevance of American Indian Treaties.” St. Thomas Law Review 7 (Summer 1997): 603–29. The nation should return to the 1866 treaty language to eliminate the Duro problem and reconstitute the order between tribes and the U.S. that Worcester mandated. 448. Kickingbird, Lynn and Curtis Berkey. “American Indian Treaties—Their Importance Today.” American Indian Journal of the Institute for the Development of Indian Law 1 (October 1975): 3–7. Tribal members defend their treaties and support returning to a treaty-based relationship with the U.S. This is the best way to keep the U.S. and state governments out of tribal affairs. 449. Kinnaird, Lawrence. “Spanish Treaties with Indian Tribes.” Western Historical Quarterly 10 (January 1979): 39–48.

454. Larson, Guistive O. “Uintah Dream: The Ute Treaty— Spanish Forks, 1865.” BYU Studies 14 (1975): 361–81. Had this treaty been ratified, “it might have gone far towards fulfillment under dedicated agents.” 455. Laurence, Robert. “Indian Treaties and Their Abrogation by Statutes of General Applicability: A Not Entirely-Nonpartisan Essay on ‘Quiet’ Abrogations, ‘Actal’ Consideration, and the Unhappy Reception Given United States v. Dion.” Brigham Young University Law Review, no. 3 (1989): 853–75. Several Yankton men were arrested for taking bald eagles. They were charged with violating the 1940 Bald Eagle Protection Act and the Endangered Species Act, both of which are silent on treaty rights. The Supreme Court established a rigid test for quiet treaty abrogation by examining Congress’s intent and treaty rights and “chose to resolve the conflict by abrogating the treaty.”

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456. Lea, John M. “Indian Treaties of Tennessee.” American History Magazine 6 (October 1901): 367–80. Following the American Revolution, North Carolina opened lands west of that state to settlement providing that tribal title was ceded. That began a process of using treaties for the U.S. to gain possession of the territory that became the state of Tennessee. 457. Leavenworth, Peter S. “‘The Best Title That Indians Can Claim’: Native Agency and Consent in the Transferal of Penacook–Pawtucket Land in the Seventeenth Century.” New England Quarterly 72 (June 1999): 275–300. Between King Philip’s War and Queen Anne’s War, the Penacook–Pawtucket used the colonial land transfer system to salvage what they could from their landed estate. Native Americans were active participants in these land decisions, hoping to exercise control and create stability with their new neighbors. 458. Lindquist, G. E. E. “Indian Treaty Making.” Chronicles of Oklahoma 26 (Winter 1948–49): 416–48. Attempts to explain why 389 treaties were made, the process involved, and the long-term consequences. Indians have largely assimilated, and thus “outmoded” treaties, treaty obligations, and Indian special status should be concluded. Includes a very detailed appendix with data on numerous treaties. 459. Lowe, Patty. “Hidden Transcripts in the Chippewa Treaty Rights Struggle: A Twice Told Story, Race, Resistance, and the Politics of Power.” American Indian Quarterly 21 (Fall 1997): 713–28. Provides two perspectives on Chippewa Treaty Rights, one from the author, a Bad River tribal member, and the other told within the framework of “traditional ethnographic research.” The article discusses conflicts over spear fishing rights and the Voigt Decision. 460. McCall, Hugh. “Treaty with the Lower Creeks.” Georgia Historical Quarterly 4 (March 1920): 12–16. Reprint of the treaty of 1733 between Georgia and the Lower Creeks that permitted the colony’s establishment. 461. McClendon, R. Earl. “The First Treaty of the Republic of Texas.” Southwestern Historical Quarterly 52 (July 1948): 32–48. The Republic’s treaty-making technique paralleled the U.S.’s, but there were irregularities connected with the Cherokee Indian Treaty of 1836. The treaty established a reservation for the Cherokees, Alabamas, Boluxies, Caddos, Choctaws, Cochatties, Delawares, Iawanies, Kickapoos, Quapaws, Shawnees, Tahoocattakes, and Unataquous. The Texas Senate refused to

ratify it, questioning Indian title to forfeited lands (as does McClendon), but Houston refused to acknowledge this action and he took steps to carry out its terms. His successor Mirabeau Lamar, however, refused to recognize the treaty as valid. After violent episodes, the Texans expelled the Cherokees. 462. McCullar, Marian Ray. “The Choctaw–Chickasaw Reconstruction Treaty of 1866.” Journal of the West 12 (July 1973): 462–70. Although these tribes were among the fiercest supporters of the Confederacy, their “courage, planning, and foresight,” as well as their stubborn refusal to accept less favorable terms, won for them a better peace than other tribes were forced to accept. 463. McNeil, Kinneth. “Confederate Treaties in Indian Territory.” Chronicles of Oklahoma 42 (Winter 1964–1965): 408–20. Considers motives driving, and obstacles impeding, the 1861 negotiations between Albert Pike and tribal leaders. The Five Civilized Tribes were promised ultimate statehood and voluntary participation in assimilation efforts, but the Provisional Congress deleted the statehood provision. The treaties also specified that Confederate laws would be enforced in the territory. The Confederacy proved incapable of meeting many of its treaty obligations. 464. Mahon, John K. “The Treaty of Moultrie Creek, 1823.” Florida Historical Quarterly 40 (April 1962): 350–72. When the U.S. finally gained possession of the Florida peninsula, the U.S. and most of the Florida Seminoles signed the treaty of Moultrie. The U.S. viewed it as a removal document, while the Seminoles interpreted the treaty as providing them with twenty years of residence in Florida. Though a much condemned treaty, and though made between unequal powers, it must be evaluated from the Seminole view, and they understood the power imbalance. 465. Mahon, John K. “Two Seminole Treaties: Payne’s Landing, 1832, and Ft. Gibson, 1833.” Florida Historical Quarterly 41 (July 1962): 1–21. The 1832 treaty provided for seven Seminole leaders to travel to Indian Territory in preparation for their potential removal. The second treaty, like the first, was crafted to implement the removal policy and precipitated a war with the Seminoles that lasted from 1835 to 1842. 466. Manley, Henry S. “Buying Buffalo from the Indians.” New York History 28 (July 1947): 313–29. Discusses the Ogden land company’s efforts to persuade the Senecas to sell their lands. The U.S. Senate

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ratified the treaty despite President Van Buren’s concern that the Senecas had not been properly represented. 467. Manley, Henry S. The Treaty of Fort Stanwix, 1784. Rome, NY: Rome Sentinel, 1932. The treaty was an international affair and also created a bitter conflict between New York and the Confederation Congress. Within the Iroquois Confederacy there were consequences as Red Jacket sought to weaken Cornplanter’s influence with the Seneca. Chapters discuss land policies, New York’s claims over tribal affairs, Congress’s efforts to prepare and implement the treaty, the actions of the western tribes, and the treaty’s precedent for U.S. dealings with the western confederation. 468. Mann, Barbara Alice. “The Greenville Treaty of 1795: Pen-and-Ink Witchcraft in the Struggle for the Old Northwest.” In Enduring Legacies, Native American Treaties and Contemporary Controversies, by Bruce E. Johansen, 135–201. Westport, CT: Praeger, 2004. This was the culmination of a series of “fraudulent” treaties, beginning with the 1783 Treaty of Paris, with the ultimate aim of seizing Ohio from the Indians. Scholars, including Charles Kappler, have improperly presented these particular treaties as though they were legitimate and controversy-free, even though Natives had repudiated them all. The Greenville Treaty set a dubious precedent for subsequent treaties. 469. Mathes, Valerie Sherer. “Treaties with the Comanches.” In Forked Tongues and Broken Treaties, edited by Donald E. Worcester, 169–211. Caldwell, ID: Caxton Printers, 1975. The first treaty between the U.S. and Comanches was negotiated in 1835, and other negotiations with Texas, the CSA, and U.S. followed, culminating in their pained acceptance of reservation life. The Treaty of Medicine Lodge Creek is analyzed in detail. 470. Meinhardt, Nick and Diane Payne. “Reviewing U.S. Treaty Commitments to the Lakota Nation.” American Indian Journal of the Institute for the Development of Indian Law 4 (January 1979): 2–12. Since 1972, thirty-six national and Midwest organizations have supported the creation of a Presidential Treaty Commission to seek redress for violations of the Fort Laramie Treaty of 1868. 471. Mekeel, Scudder. “A Short History of the Teton–Dakota.” North Dakota Historical Quarterly 10 (July 1943): 137–205. Historical overview from the colonial era to the late nineteenth-century that includes brief discussions of treaties and interactions with the U.S. government.

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472. Meyer, Roy W. “The Iowa Indians, 1836–1885.” Kansas Historical Quarterly 28 (Autumn 1962): 273–300. A brief tribal history including discussion of key treaties. 473. Migliazzo, Arlin C. and Fred C. Bohm. “The Blackfeet Treaty Council.” In Indians, Superintendents, and Councils: Northwestern Indian Policy, 1850–1855, edited by Clifford E. Trafzer, 113–22. Lanham, MD: University Press of America, 1986. Describes the 1855 negotiations and suggests reasons why the Blackfeet may have consented to the treaty. It did not stop intertribal warfare. 474. Miller, Cary. “Gifts as Treaties: The Political Use of Received Gifts in Anishinaabeg Communities, 1820–1832.” American Indian Quarterly 26 (Spring 2002): 221–45. In Anishinaabeg culture gifts are used for making political ties and repayment was based on need, not necessity. These rules held true for the diplomatic front with other tribes as well as nontribal parties. 475. Mitchell, Marie. The Navajo Peace Treaty, 1868. New York: Mason and Lipscomb Publishers, 1973. Brief narrative tribal history focusing on the Navajo Long Walk and 1868 treaty but discussing the preceding and following eras as well. 476. Murphy, James C. “The Place of the Northern Arapahoes in the Relations between the United States and the Indians of the Plains, 1851–1879.” Annals of Wyoming, 41 (April 1969): 33–61; cont. 41 (October 1969): 203–59. The Arapaho avoided conflict for nearly fourteen years after the flawed Fort Laramie Treaty of 1851 gave way to violence among other tribes and the U.S. 477. Neighbours, Kenneth F. “The German-Comanche Treaty of 1847.” Texana 2 (Winter 1964): 311–22. In early 1847, fearing tribes might establish a claim to Texas territory, the governor dispatched Robert S. Neighbors to negotiate a treaty that was signed in 1847 between a German colony and the Comanche. 478. Nesper, Larry. “Treaty Rights.” In A Companion to the Anthropology of American Indians, edited by Thomas Biolsi, 304–20. Malden, MA: Blackwell Publishing, 2004. Reviews the history of tribal treaty making, noting that treaties are documents that establish exchanges between sovereigns. The U.S. terminated treatymaking with tribes in 1871 and the ICC also attempted to resolve treaties. Tribal treaties still stand and have moved into the international setting. In 1998,

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Anishinaabe from the U.S. and Canada signed an agreement to support their legal rights. 479. Newcombe, Barbara T. “‘A Portion of the American People:’ The Sioux Sign a Treaty in Washington in 1858.” Minnesota History 45 (Fall 1976): 82–96. Narrative account of events leading up to and following a treaty agreement with the Upper and Lower Sioux. Frustration over the treaty and the federal government’s failure to deliver on its promises contributed to the 1862 uprising. 480. Nyquist, Steven B. “Self-Determination and Reconciliation: A Cooperative Model for Negotiating Treaty Rights in Minnesota.” Law & Inequality: A Journal of Theory and Practice 9 (August 1991): 533–65. Stresses the importance of avoiding racial clashes in Minnesota like those that occurred in Wisconsin over tribal hunting and fishing rights. Using the Minnesota Department of Natural Resource’s skills as a beginning point, a dialogue can be opened between the state’s tribal and non-tribal residents to protect tribal treaty rights. 481. Oman, Kerry R. “The Beginning of the End: The Indian Peace Commission of 1867–1868.” Great Plains Quarterly 22 (Winter 2002): 35–51. The commission aimed to protect overland transportation by establishing intertribal peace agreements. The federal government failed to deliver on its promises and the treaties led to more violence. 482. O’Toole, Francis J. and Thomas N. Tureen. “State Power and the Passamaquoddy Tribe: ‘A Gross National Hypocrisy?’” Maine Law Review 23, no. 1 (1971): 1–39. According to the Act of Separation in 1820, the new state of Maine assumed Massachusetts’s treaty obligations to the Passamaquoddy near the border of Canada. Since then, Maine courts have viewed them as disenfranchised poor citizens without special status. The problem is that no federal consent can be found for the treaty of 1794 that Massachusetts signed with the Native Americans, and that is the basis of Maine’s authority over them today. 483. Partoll, Albert J. “The Flathead Indian Treaty Council of 1855.” Pacific Northwest Quarterly 29 (July 1938): 283–314. Reprint of the Hellgate Treaty proceedings of 1855, which created the present-day Flathead Reservation. 484. Petersen, Willam J. “The Ioways Bid Farewell.” Palimpsest 50 (April 1969): 264–67. The Ioways surrendered title to their Iowa lands in an 1838 treaty for $157,500.

485. Pluth, Edward J. “The Failed Watab Treaty of 1853.” Minnesota History 57 (Spring 2000): 2–22. The Ho-Chunk exchanged the Long Prairie reservation for Crow River lands in this treaty. The tribe rejected major amendments subsequently made in Washington, and the treaty remained unratified. Historians must devote more attention to unratified treaties and the many parties involved in negotiating them. Ho-Chunks were betrayed, but have been proactive in pursuing their best interests. 486. Pomedli, Michael M. “Eighteenth-Century Treaties: Amended Iroquois Condolence Rituals.” American Indian Quarterly 19 (Summer 1995): 319–39. Studies thirteen treaties made between 1736 and 1762 and contends that the Iroquois had a greater diplomatic influence on their outcome than is often assumed. These treaties parallel the Iroquois condolence rite in their stress on the importance of human relationships. Native voices and spirituality come through in these documents, and so these and other treaties are worthy of scholarly and legal reinterpretation. 487. Prucha, Francis P. American Indian Treaties: The History of a Political Anomaly. Berkeley: University of California Press, 1994. Chronological study of the treaty-making process and of current tribal efforts to assert treaty rights. Treaties are political anomalies in that they are viewed as contracts between independent sovereigns, yet they were an Anglo-American “device” and were driven by non-Indian desires. American–Indian treaties were inconsistent and deviated from international norms. Extensive indexes list ratified treaties and agreements and include a map of council sites. 488. “The Rejected California Treaties.” Indian Historian 6 (Winter 1973): 23–25. Reprints the text of the Senate-rejected 1851 California treaty. 489. Rice, George William. “Indian Rights: 25 U.S.C. § 71: The End of Indian Sovereignty or a Self-Limitation of Contractual Ability?” American Indian Law Review 5, no. 1 (1977): 239–53. Section 71 of Title 25 of the U.S.C. prohibits the U.S. from entering into treaties with tribal nations. The constitutionality of this section of the code has not been challenged. This section did not destroy tribal sovereignty. 490. Rister, Carl C. “A Federal Experiment in Southern Plains Indian Relations.” Chronicles of Oklahoma 14 (December 1936): 434–55. Treaty efforts by the federal government in the 1830s intending to pacify prairie tribes and induce

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them to accept the presence of removed eastern tribes failed.

ernor Stevens’s treaties led to war, removal, poverty, and culture loss.

491. Rutland, Robert A. “Political Background of the Cherokee Treaty of New Echota.” Chronicles of Oklahoma 27 (Winter 1949–1950): 389–406. The treaty must be understood in the context of broader conflicts over Southern state’s rights, nullification, and slavery. Georgia’s victory against the Cherokees was a victory for the doctrine of state sovereignty.

497. Sheridan, Richard B. “Conflicts and Contacts between Native Americans and White Settlers, with Special Reference to Emporia and Lyon County, Kansas, 1854– 1870.” Journal of the West 41 (Winter 2002): 73–82. Includes brief discussions of treaties affecting the Kansa-Kaw, Sac, and Fox.

492. Schulenberg, Raymond F. “Indians of North Dakota.” North Dakota History 23 (October 1956): 119–230. Book-length article that is mostly ethnographic but includes overviews of regional treaties and the contemporary federal administration of reservations. 493. Schwartzman, Grace M. and Susan K. Barnard. “A Trail of Broken Promises: Georgians and Muscogee/Creek Treaties, 1796–1826.” Georgia Historical Quarterly 75 (Winter 1991): 697–718. Through these treaties with the English and Americans, the tribe lost substantial lands. In an 1827 treaty the federal government finally acquired the last of their lands in Georgia, thus fulfilling the Compact of 1802 requirements. 494. Scott, Kenneth and Charles E. Baker. “Renewals of Governor Nicholls’ Treaty of 1665 with the Esopus Indians at Kingston, N.Y.” New York Historical Society Quarterly 37 (July 1953): 251–72. Esopus was founded in 1658 as a fortified sanctuary for the local southeastern New York tribes, and was later renamed Kingston. Dutch and English treaties renewed this community as a tribal haven. 495. Seeman, Carole. “The Treaties and Non-Treaty Coastal Indians.” In Indians, Superintendents, and Councils: Northwestern Indian Policy, 1850–1855, edited by Clifford E. Trafzer, 37–67. Lanham, MD: University Press of America, 1986. The tribes of the northern Olympic Peninsula accepted the Neah Bay and Olympic treaties because they were promised reservations and “special rights,” but Governor Stevens planned removal for the southern tribes. They refused the proposal and have since suffered unjustly. 496. Seeman, Carole. “The Treaties of Puget Sound.” In Indians, Superintendents, and Councils: Northwestern Indian Policy, 1850–1855, edited by Clifford E. Trafzer, 19–36. Lanham, MD: University Press of America, 1986. The Medicine Creek, Point Elliot, and Point No Point treaties decimated the tribes of this region. Gov-

498. Shetrone, H.C. “The Indian in Ohio.” Ohio State Archaeological and Historical Quarterly 27 (July 1918): 274–510. An ethnography and history including an account of white assailment of Indian land titles and the Greenville Treaty. A detailed fold-out map shows Indian settlements in the 18th century. 499. Shields, Lillian B. “Relations with the Cheyennes and Arapahoes in Colorado to 1861.” Colorado Magazine 4 (August 1927): 145–54. A short historical overview that concentrates on accounts of treaty negotiations. Shields laments that Indian–white relations here were marked by misunderstandings. 500. Sievers, Michael A. “Westward by Indian Treaty: The Upper Missouri Example.” Nebraska History 56 (Spring 1975): 77–107. The Northwest Treaty Commission and Peace Commission stressed the need to establish reservations and encourage agriculture. Indian policy had evolved from a focus on segregation to assimilation, as evidenced by Indian affairs within the Upper Missouri Agency in the mid- to late-1860s. 501. Silliman, Sue I. “The Chicago Indian Treaty of 1821.” Michigan History Magazine 6 (1922): 194–97. This treaty of Chicago opened the lands between Chicago and Dearborn. The Pottawatomie did not sign the treaty, but honored the terms because several unauthorized tribal members signed. 502. “Sioux Treaty of 1868.” Indian Historian 3 (Winter 1970): 13–17. Reprints the text of the 1868 Fort Laramie Treaty. 503. Slosson, Preston. “The Significance of the Treaty of Greene Ville.” Ohio State Archaeological and Historical Quarterly 55 (January–March 1946): 1–11. Considers this to be the only American-tribal treaty other than Penn’s Treaty that was not later broken by its authors, and thus argues that Anthony Wayne demonstrated genius in its making. 504. Smith, Burton M. “Politics and the Crow Land Cessions, 1851–1904.” Montana: Magazine of the West 36 (Autumn 1986): 24–37.

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The federal and state governments failed to follow through with their commitments to the Crow that were made in the five decades of land cessions. The government never coerced them to sell. The Crow willingly sold their lands to maintain a protective alliance with their new neighbors, white ranchers and farmers. 505. Smith, Dwight L. “Indian Land Cessions in Northern Ohio and Southeastern Michigan, 1805–1808.” Northwest Ohio Quarterly 29 (Winter 1956–1957): 227–45. Sympathetic toward Jefferson’s treaty approach, describing the President as “taking great pains to assure proper thinking by the Indians and to constantly keep before them the idea of the coincidence of theory and practice [that] was not always there.” To Jefferson, it was in their best interests to sell lands. 506. Smith, Dwight L. “The Land Cession Treaty: A Valid Instrument of Transfer of Indian Title.” In This Land of Ours: The Acquisition and Disposition of the Public Domain, 87–102. Indianapolis: Indiana Historical Society, 1978. The Old Northwest prior to the War of 1812 serves as a case study to explain how an AngloAmerican procedure, with minor modifications to suit Natives, became a valid instrument of transfer. The Treaty of Greene Ville was groundbreaking in the creation of a mutually recognized legal relationship between tribes and the U.S. and as a precedent for land-cession treaties as a means of transferring land title. 507. Smith, Dwight L. “Wayne and the Treaty of Greene Ville.” Ohio State Archaeological and Historical Quarterly 63 (January 1954): 1–7. Anthony Wayne was not the chief architect of the treaty but rather acted under specific War Department orders. A draft treaty provided a template, and contrasting it with the actual treaty allows a more accurate assessment of the general’s role. He executed his duty well and obtained more concessions from tribes than he had been directed to. 508. Smith, Dwight L. “Wayne’s Peace with the Indians of the Old Northwest, 1795.” Ohio State Archaeological and Historical Quarterly 59 (July 1950): 239–55. The Treaty of Greene Ville did not accomplish the territorial cession goals set out by two previous congressional committees in that it only acquired the southern half and northeastern portion of Ohio, but it accomplished a great deal for the U.S., including peace. It also broke Indian unity and paved the way for future tribal cessions. 509. Smith, Lee Ann. “The Flathead Treaty Council.” In Indians, Superintendents, and Councils: Northwestern Indian Policy, 1850–1855, edited by Clifford E.

Trafzer, 99–111. Lanham, MD: University Press of America, 1986. Provides historical background on Stevens’s and tribal motivations for negotiating the 1855 Treaty of Hell Gate, with particular focus on the Salish. Council negotiations are described in detail. Stevens cared little about their cultures, feelings, and wishes and did not distinguish between the distinct tribes present at the council. 510. Spencer, Joab. “Missouri’s Aboriginal Inhabitants.” Missouri Historical Review 3 (July 1909): 275–92; cont. 4 (October 1909): 18–28. Ethnological survey. Part I includes details on treaties made with various Missouri tribes. 511. Stern, Theodore. “The Klamath Indians and the Treaty of 1864.” Oregon Historical Quarterly 57 (September 1956): 229–73. Concentrates on the history of non-Indian and Klamath relations leading up to the signing of the 1864 treaty, and the factionalism in the Klamath tribe regarding strategies for dealing with white encroachment. The treaty also displaced the Modoc and Paiute and contributed to future armed conflicts. 512. Street, Ida M. “The Simon Cameron Indian Commission of 1838.” Annals of Iowa 7 (July 1905): 115–39; cont. Annals of Iowa 7 (October 1905): 172–95. Details frauds by a commission charged with carrying out the provisions of the 1837 Winnebago treaty. Indians have been poorly treated by governmentappointed commissions. 513. Thompson, Ray. The Walking Purchase Hoax of 1737. Fort Washington, PA: Bicentennial Press, 1973. Account of the “sordid” action sons of William Penn took to trick the Delaware Indians out of prime hunting lands. 514. Thompson, Robert. “Indian Land Claims—A Question of Congress’s Right to Unilaterally Abrogate Indian Treaty Provisions.” Howard Law Review 21, no. 2 (2001): 625–44. Article XII of the Fort Laramie Treaty of 1868 requires that three fourths of the adult males must approve future lands sales. When the Supreme Court ruled in 1977 in Rosebud v. Kneip, the court agreed with South Dakota that Congress intended to diminish the counties that were opened for homesteading in 1904, 1907, and 1911 and severed them from the reservation. The Supreme Court ignored Congress’s trust responsibilities and ruled on an economic basis providing the states with tax benefits. If the court had followed the treaty language, the lands would still belong to the Rosebud people, but instead it demonstrated that non-tribal courts would not protect tribal treaty rights.

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515. Townsend, Mike. “Congressional Abrogation of Indian Treaties: Reevalution and Reform.” Yale Law Journal 98 (February 1989): 793–812. Tribal treaties with the U.S. are intended to provide some degree of protection for tribal rights. Congressional power to abrogate treaties with tribes limits their sovereignty and their ability to maintain their communities. None of the justifications the Supreme Court has provided carry enough legal weight to abrogate a treaty; therefore, the high court should escalate its protection of tribal treaties. 516. Trafzer, Clifford E. ed. Indians, Superintendents, and Councils: Northwestern Indian Policy, 1850–1855. Lanham, MD: University Press of America, 1986. Essays by various authors relating to the Stevens treaties and the significant role the governor played in Indian affairs in this region. 517. “Treaty Between Virginia and the Catawbas and Cherokees, 1756.” Virginia Magazine of History and Biography 13 (January 1906): 225–64. The sole purpose of the March and April treaties was to gain Cherokee and Catawba support for Virginia against the French and their tribal allies in the Seven Years War. 518. Tsosie, Rebecca. “Sacred Obligations: Intercultural Justice and the Discourse of Treaty Rights.” UCLA Law Review 47 (August 2000): 1615–72. Compares the political status of tribal nations and Hispanics after 1848 and discusses ways the landscape intertwines with each group’s cultural identity. As Hispanics assimilated, Native Americans remained separate and the use of reparations is a way to restore tribal sovereignty. The treaties are sources of identity for tribal Americans. 519. Unrau, William E. “Indian Agent vs. the Army: Some Background Notes on the Kiowa–Comanche Treaty of 1865.” Kansas Historical Quarterly 30 (Spring 1964): 129–52. Analysis of treaty negotiations brings into question the validity of scholarly assumptions that Indian policy-makers broke into two camps—one of military men favoring punitive action, and the other Indian agents favoring peace. Instead, group interest and trial and error were often involved in policy-making. 520. Van Loon, L.G. “Tawagonshi: Beginning of the Treaty Era.” Indian Historian 1 (June 1968): 22–26. In 1613, two Dutch traders met with Iroquois near Albany and signed the treaty of Tawagonshi to secure fair trading practices. Even after the Dutch left, the tribes attempted to maintain the terms of this document. It provided for fair land sales and trading practices.

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521. Vaughan, Alden T., general ed. Early American Indian Documents: Treaties and Laws, 1607–1789. Washington, DC: University Publications of America, 1979–2003. Multivolume series reproducing colonial, state and early national treaties and laws dealing with American Indians. Documents related to the treaties are included as are deeds, land sales, and proclamations. Different volume editors provide contextual forwards. Volumes deal with specific colonies and states. 522. Venables, Robert W. “The Treaty of Canandaigua (1794): Past and Present.” In Enduring Legacies, Native American Treaties and Contemporary Controversies, by Bruce E. Johansen, 45–80. Westport, CT: Praeger, 2004. In this treaty the U.S. recognized the Iroquois Confederacy nations’ independent status and it still relates to tribal land claims and rights to self-governance. Rather than a treaty of conquest, it set limits for each sovereign and defined reciprocal obligations. 523. Vipperman, Carl J. “The Bungled Treaty of New Echota: The Failure of Cherokee Removal, 1836– 1838.” Georgia Historical Quarterly 73 (Fall 1989): 540–58. Considers the degree to which government agents, including treaty commissioners, the removal superintendent and military officers, were responsible for the removal tragedy of 1838. They are found to have “thoroughly bungled the Treaty of New Echota” and were thus the “root cause” of the tragedy. 524. Vizenor, Gerald. “Minnesota Chippewa: Woodland Treaties to Tribal Bingo.” American Indian Quarterly 13 (Winter 1989): 31–57. Surveys a diverse variety of legal, political, spiritual, and social topics related to the White Earth Reservation, including short discussions of treaties between the tribe and the state and federal governments. 525. Voegelin, Erminie Wheeler, “The Northern Paiute of Central Oregon: A Chapter in Treaty-Making Part 1.” Ethnohistory 2 (Spring 1955): 95–132; cont. 2 (Summer 1955): 241–72; cont. 3 (Winter 1956): 1–10. During the treaty-making era, mistakes were often made in translations and identification of tribal groups participating in negotiations. Based on Klamath records, Yahuskin, a Klamath-speaking group, signed the treaty in 1864, not the Great Basin Paiute. The Walapi are first mentioned in the 1865 treaty of Woll-pah-pe in which they ceded a large tract in Oregon already ceded by other tribes. After moving onto the Klamath Reservation they were referred to as Paiute. After 1945, it became nearly impossible to do ethnographic field work.

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526. Walter, David A. ed. “Montana Episodes: The 1855 Blackfeet Treaty Council: A Memoir by Henry A. Kennerly.” Montana: Magazine of Western History 32 (Winter 1982): 44–51. Kennerly was the clerk for Central Superintendent of Indian Affairs Alfred Cummings who was appointed commissioner to negotiate the 1855 treaty with the Blackfeet. 527. Warren, Hanna R. “Reconstruction in the Cherokee Nation.” Chronicles of Oklahoma 45 (Summer 1967): 180–89. Among the 1866 Treaty’s articles were provisions dealing with the treatment of freedmen, railroad right of ways, the organization of a general council, permission to settle other Native Americans on Cherokee lands, and land cessions in Kansas. Warren considers the continuing factionalism and obstacles the tribe faced in complying with these terms. Despite problems, they were able to improve their economic well-being by 1870. 528. Webb, Walter Prescott. “The Last Treaty of the Republic of Texas.” Southwestern Historical Quarterly 25 (January 1922): 153–73. During Houston’s final term as president of the Republic of Texas, several councils and treaties were signed, the last in November 1845. This treaty set the stage for Texas as a state that had reserved all lands inside its borders, thus making Texas a state that favored war at time when the U.S. favored peace with tribes. 529. Webber, Joe D. “Indian Cessions within the Northwest Territories.” Illinois Libraries 61 (June 1979): 507–64. Treaties negotiated between the U.S. and tribal nations residing in the Old Northwest are partially reprinted beginning with the Treaty of Greenville, 1785 and ending with an 1891 executive order. 530. Wells, Samuel J. “Rum, Skins, and Powder.” Chronicles of Oklahoma 61 (Winter 1983–1984): 422–28. In an 1805 land cession treaty, the Choctaw nation curiously agreed to pay federal interpreter John Pitchlynn $2,500. He received this payment for actual losses, not because he pushed for the adoption of land cession treaties, as other scholars have alleged. 531. Wendt, Bruce H. “The Dalles Treaty Council.” In Indians, Superintendents, and Councils: Northwestern Indian Policy, 1850–1855, edited by Clifford E. Trafzer, 85–98. Lanham, MD: University Press of America, 1986. Superintendent Joel Palmer compelled tribes to accept the 1855 treaty creating the Warm Springs reservation and contributing to the Yakima war. 532. Wilkins, David E. “Indian Treaty Rights: Sacred Entitlements or ‘Temporary Privileges?’” American Indian

Culture and Research Journal 20, no. 1 (1996): 87–129. A detailed study of the Ward v. Race Horse case which Wilkins sees as the doctrinal root of the modern states’ rights vs. tribal rights debate. Wilkins points out flaws in the decision. As the federal courts and Congress shift toward states’ rights, the one-hundred-yearold case poses “a viable, ongoing, and now reinvigorated threat to tribal sovereignty and the exercise of treaty rights.” 533. Wilkinson, Charles F. and John M. Wolkman. “Judicial Review of Indian Treaty Abrogation: ‘As Long as Water Flows, or Grass Grows Upon the Earth’—How Long a Time Is That?” California Law Review 63 (May 1975): 601–61. The general rule of tribal and international treaties “is that, in the absence of congressional expression to the contrary, the later in time governs a conflict between a treaty and statute.” Few disputes can be settled this way so courts are looking at associated tests to determine legislative intent. Treaties are hard fought negotiated contracts that when they are abrogated entitle tribes to monetary compensation. Congress must keep its word and determine the morality of these documents. 534. Wilkinson, Norman B. “Robert Morris and the Treaty of Big Tree.” Mississippi Valley Historical Review 40 (September 1953): 257–78. The Battle of Fallen Timbers opened the Genesee tract, part of the Holland Land Purchase, of western New York. Robert Morris manipulated the treaty proceedings to benefit himself and his family in 1797. 535. Wilson, Frazer E. The Treaty of Greenville. Piqua, OH: Correspondent Press, 1894. Describes the conflicts leading to the battle of Maumee and the subsequent negotiations that culminated in the Treaty of Greenville, 1795. 536. Wilson, Richard H. “The Indian Treaty of April 1896.” Annals of Wyoming 8 (October 1931): 539–45. Maj. James McLaughlin negotiated this treaty with the Shoshone and Arapaho at Shoshone Indian Agency. He was “especially well fitted” for this duty in contrast to the usual political appointees. Wilson, a colonel, describes the treaty process. He believes that the treaty terms were not entirely fair to the tribes. 537. Woodworth-Ney, Laura. “Negotiating Boundaries of Territory and ‘Civilization’: The Coeur d’Alene Indian Reservation Agreement Councils, 1873–1889.” Pacific Northwest Quarterly 94 (Winter 2002/2003): 27–41. In 1889 the tribe accepted a cash payment in exchange for ceding more than 184,000 acres of their reservation to the federal government. The tribe

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yielded the lands in hopes of retaining what remained. Chief Seltice had been hoping to protect the tribe’s resources by promoting assimilation. The tribe accepted new physical boundaries while at the same time those following Seltice’s strategy were devaluing “the authority of women and of tribal members who refused to participate in Catholicism or large-scale agriculture.”

the Old Southwest.” Georgia Historical Quarterly 51 (December 1967): 379–400. This treaty was regarded “as the cornerstone of American policy toward the southern Indians.” McGillivray, an able leader, was pulled in different directions by the Spanish, U.S., Georgians, and Indian factions, thus demonstrating the reality that more than two groups were involved in treaty negotiations.

538. Worcester, Donald E., ed. Forked Tongues and Broken Treaties. Caldwell, ID: Caxton Printers, 1975. Essays by various authors, many presenting historical surveys of U.S. treaty negotiations with specific tribes and emphasizing dishonest treaty-making practices and the U.S.’s propensity to break its treaty promises. Some of the essays are short historical accounts of specific tribal–white relations with only brief mention of treaties.

541. Wright, Muriel H. “Notes on Events Leading to the Chickasaw Treaties of Franklin and Pontotoc, 1830 and 1832.” Chronicles of Oklahoma 34 (Winter 1956–1957): 465–83. Detailed account of the negotiation process over two treaties ceding tribal lands east of the Mississippi.

539. Worcester, Donald E. “Treaties with the Teton Sioux.” In Forked Tongues and Broken Treaties, edited by Donald E. Worcester, 214–52. Caldwell, ID: Caxton Printers, 1975. Historical narrative beginning with the Fort Laramie Treaty of 1851 and culminating with the Fort Laramie Treaty of 1868. 540. Wright, J. Leitch, Jr. “Creek–American Treaty of 1790: Alexander McGillivray and the Diplomacy of

542. Wunder, John R. “No More Treaties: The Resolution of 1871 and the Alteration of Indian Rights to Their Homelands.” In John R. Wunder, ed. Working the Range: Essays on the History of Western Land Management and the Environment. Westport, CT: Greenwood Press, 1985, 39–56. Assesses the 1871 U.S. decision to end treaty making with tribes—a decision that violated international law. The move was not intended to end past recognition of tribal sovereignty, but Lone Wolf “represented the culmination of legal and political destruction of Indian sovereignty and the treaty process.”

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place them on water transportation to their new homes west of the Mississippi River. He was sympathetic to the Ottawas.

543. Akers, Donna. Living in the Land of Death: The Choctaw Nation, 1830–1860. East Lansing: Michigan State University, 2004. Studies events preceding and following Choctaw removal to Indian Territory from a Choctaw perspective and stresses that non-Indian scholars have misrepresented the tribe’s story.

548. Blais, M. Jeanne. “The Imposing Alliance: Jackson, Georgia, & Indian Removal, 1825–1832.” Indian Historian 8 (Winter 1975): 47–53. Jackson’s sympathy toward Georgia as early as 1813 provided Wilson Lumpkin of Georgia the political power to introduce an Indian removal bill in 1828 as an anti-Adams measure. Tribal and non-tribal people were divided on removal. The Chickasaws supported it and the Cherokees opposed it. This alliance between Jackson and Georgia insured that Indian removal would occur.

544. Anderson, William L., ed. Cherokee Removal: Before and After. Athens: University of Georgia Press, 1991. Essays by various authors studying Cherokee society, including political and demographic developments, before removal and during its aftermath. 545. Anson, Bert. “Chief Francis Lafontaine and the Miami Emigration from Indiana.” Indiana Magazine of History 60 (September 1964): 241–68. Lafontaine assumed responsibility for preparing his people for removal in the 1840s, after Jean Baptiste Richardville’s death. Lafontaine endeavored to help both those Miamis who were allowed to remain in Indiana and those who were forced to move beyond the Mississippi.

549. Bolton, Charles S. “Jeffersonian Indian Removal and the Emergence of Arkansas Territory.” Arkansas Historical Quarterly 62, no. 3 (2003): 253–71. Jeffersonian removal began in 1808 and Arkansas Territory was the destination for many tribes. Tribal settlers comprised 20 percent of Arkansas Territory’s population in 1819. Soon after, Congress created Indian Territory as the permanent home for many eastern tribal nations.

546. Anson, Bert. “Variations of the Indian Conflict: The Effects of the Emigrant Indian Removal Policy, 1830–1854.” Missouri Historical Review 59 (October 1964): 64–89. Removal policy nearly destroyed tribal organization of groups already partly acculturated. Contact with removed tribes, who carried with them negative aspects of contact with non-Indian culture, led to the deterioration of Plains tribes.

550. Buntin, Martha. “The Mexican Kickapoos.” Chronicles of Oklahoma 11 (March 1933): 691–708; cont. 11 (January 1933): 823–37. Groups of Kickapoos left Kansas prior to and during the Civil War and settled in Mexico. Buntin considers negotiations to remove them back to the U.S. after the Civil War and the allotment and opening of the reservation to homesteading in 1895.

547. Bauman, Robert F. ed. “The Removal of the Indians from the Maumee Valley.” Northwest Ohio Quarterly 30 (Winter 1957–1958): 10–25. Colonel Dresden W. H. Howard wrote this essay after 1838. The U.S. appointed him agent to direct the removal of the Ottawas from their Ohio homes and

551. Burk, Jerry L. “Oklahoma Seminole Indians: Origin, History, and Pan-Indianism.” Chronicles of Oklahoma 51 (Summer 1973): 211–23. Begins with their experiences in Florida, and continues through the politically and socially destructive

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removal era which led them to mistrust whites. As pan-Indianism developed, the Seminoles proved suspicious of other tribes as well and may thus be considered a “contra-culture.” 552. Carson, James Taylor. “States Rights and Indian Removal in Mississippi, 1817–1835.” Journal of Mississippi History 57, no. 1 (1995): 25–41. At Mississippi statehood, Choctaw and Chickasaw nations were within the new state’s boundaries. State leaders feared high taxes on white fee land. The early state rightists wanted to take tribal lands, but Governor Brandon requested that the federal government take responsibility for ceding tribal title. 553. Carter, Edward L. “The Seminole Nation after leaving Florida, 1855–1860.” Chronicles of Oklahoma 55 (Winter 1977–1978): 433–53. The tribe suffered more hardship after removal and prior to the Civil War than did other southeastern tribes, including struggles with neighboring Plains tribes and troubles resulting from the federal government’s treatment of them as Creeks. 554. Carter, Samuel, III. Cherokee Sunset: A Nation Betrayed, A Narrative of Travail and Triumph, Persecution and Exile. Garden City, NY: Doubleday and Company, 1976. Draws on the Cherokee Phoenix to tell the story of Cherokees during the removal era. 555. Cass, Lewis. “Removal of the Indians.” North American Review 30 (January 1830): 62–121. Their declining population and lack of civilization makes it imperative that tribes be removed to save them from extinction and prepare them for assimilation. 556. Cave, Alfred A. “Abuse of Power: Andrew Jackson and the Indian Removal Act of 1830.” Historian 65 (Winter 2003): 1330–53. The Jackson administration violated guarantees made by the act in carrying out removal. Other scholars have failed to note this and frequently misinterpret the act because they confuse these abusive actions with the actual act. The president was not empowered by Congress to violate treaties, but he nevertheless made coercive a policy meant to be voluntary. 557. Chapman, Berlin B. “Removal of the Osages from Kansas.” Kansas Historical Quarterly 7 (August 1938): 287–305; “Part II,” 7 (November 1938): 399–410. In an 1865 treaty, the tribe ceded the eastern portion of their land in southern Kansas and, in 1870, they agreed to cede their remaining lands and remove to Indian territory. They then became embroiled in a dis-

pute with the Cherokees regarding where they would settle. 558. Clark, Blue. “Chickasaw Colonization in Oklahoma.” Chronicles of Oklahoma 54 (Spring 1976): 44–57. Tribal members adopted white ways in hopes of preserving their land base (primarily in Tennessee and Mississippi) yet removal pressures continued to mount in the 1820s and 1830s. In the 1832 Treaty of Pontotoc the tribe ceded lands east of the Mississippi River and, in 1837, they negotiated with the Choctaws for a portion of their domain in Indian Territory. Though hard, their removal experiences were not as severe as those of the Cherokees, but living conditions were poor. 559. Cole, D. C. “Reorganization, Consolidation, and the Expropriation of the Chiricahua Apache Reservation.” Indian Historian 10 (Spring 1977): 3–7. In 1867, the Chiricahua Reservation was abolished and its residents were forced to other reserves, mainly San Carlos. The U.S. has never returned that land to the Chiricahua. 560. Condra, G. E. “Opening of the Indian Territory.” Bulletin of the American Geographical Society 39, no. 6 (1907): 321–40. Opening Indian Territory was an inevitable consequence of the nation’s use of treaties and force to move tribes westward. Continual white intrusion, the Dawes Commission and the Curtis Act prepared the tribal nations for Oklahoma statehood. 561. Conser, Walter H., Jr. “John Ross and the Cherokee Resistance Campaign, 1833–1838.” Journal of Southern History 44 (May 1978): 191–212. The Cherokees were removed to Indian Territory, but the Ross group resisted removal and manipulated third parties into this non-military confrontation with the U.S. that revealed important social and political dynamics of their resistance to removal. 562. Corn, James F. “Conscience of Duty: General John E. Wool’s Dilemma with Cherokee Removal.” Journal of Cherokee Studies 3 (Winter 1978): 35–39. Wool received conflicting orders from the Department of War concerning Cherokee removal. The Cherokee government praised Wool for his restraint in relations with the peaceful Cherokees and that angered whites. Wool’s actions culminated in a court of inquiry where he was praised for his temper and caution. 563. Crum, Steven. “‘America, Love It or Leave It’: Some Native American Initiatives to Move to Mexico, 1890–1940.” Chronicles of Oklahoma 79 (Winter 2001/2002): 408–29.

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Several Oklahoma tribes considered relocating to Mexico in response to federal encroachments on their lands and sovereignty. Traditional full-bloods from previously removed tribes were the most likely to adopt this strategy. Even though delegations traveled to Mexico, no American Indians became permanent residents. 564. Davis, Kenneth Penn. “Chaos in Indian Country: The Cherokee Nation, 1828–35.” In The Cherokee Indian Nation: A Troubled History, edited by Duane H. King, 129–47. Knoxville: University of Tennessee Press, 1979. The years leading up to removal were a time of chaos and confusion for everyone involved. 565. DeRosier, Arthur H., Jr. “Andrew Jackson and Negotiations for the Removal of the Choctaw Indians.” Historian 29 (May 1967): 342–62. The 1830 Treaty of Dancing Rabbit Creek began the removal of the Choctaws from their homeland in Mississippi to Indian Territory. The 1828 presidential election gave Mississippi whites the hope that Choctaw removal was imminent and Andrew Jackson did not disappoint them. 566. DeRosier, Arthur H., Jr. “The Choctaw Removal of 1831: A Civilian Effort.” Journal of the West 6 (April 1967): 237–47. Account of the removal and some discussion of the Treaty of Dancing Rabbit Creek, which led to the action. A troubled civilian-led process compelled the federal government to leave further removals solely in military hands. 567. DeRosier, Arthur H., Jr. “Negotiations for the Removal of the Choctaw.” Chronicles of Oklahoma 38 (Spring 1960): 85–100. Two treaties with the Choctaws ceded lands in Mississippi and led to removal, one in 1820 and the other 1830. The first treaty failed to compel the majority to remove. They were removed in spite of their past friendly relations with the U.S. 568. DeRosier, Arthur H., Jr. The Removal of the Choctaw Indians. Knoxville: University of Tennessee Press, 1970. Narrative account of the first southern tribe removed west. 569. Duffield, Lathel F. “Cherokee Emigration: Reconstructing Reality.” Chronicles of Oklahoma 80 (Fall 2002): 314–47. Reassesses the event and the effect the use of “misleading and erroneous documents” had on historical understandings. Historians have depicted the removal in an unbalanced manner with emphasis “largely on the negative.”

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570. Edmunds, R. David. “Potawatomis in the Platte Country: An Indian Removal Incomplete.” Missouri Historical Review 68 (July 1974): 375–92. The tribe was temporarily settled in northwestern Missouri after an 1833 treaty, but those new lands were coveted by non-Indians as well. The tribe divided on whether to exchange these lands in the Platte Country for other acreage. This conflict exemplifies the poor planning of federal authorities promoting removal. 571. Edmunds, R. David. “The Prairie Potawatomi Removal of 1833.” Indiana Magazine of History 68 (September 1972): 240–53. Like others, this removal was marked by misadministration. 572. Ehle, John. Trail of Tears: The Rise and Fall of the Cherokee Nation. New York: Anchor Books, Doubleday, 1988. Narrative study of the events leading up to and including the Cherokee removal. 573. Ellisor, John T. “Like So Many Wolves: Creek Removal in the Cherokee Country.” Journal of East Tennessee History 71 (1999): 1–24. After the 1830 removal act, the Upper and Lower Creeks wanted protection from Alabama efforts to encourage non-Indian settlement in Creek territory, but the state and the U.S. wanted them to remove to Indian Territory. The Treaty of Cusseta of 1832 distributed land allotments to Creeks, opening the remainder of their Alabama lands to whites. This treaty failed and Creeks fled to the mountains, thus forcing the Americans to fear a combined Creek–Cherokee resistance against removal. 574. Estep, Raymond. “Wm. E. Burnet: Removal of Indians from Texas and the Founding of Fort Cobb.” Chronicles of Oklahoma 38 (Autumn 1960): 274–309; cont. 38 (Winter 1960–1961): 369–96. Provides biographical information on a lieutenant who corresponded with his father about events leading to the removal of tribes from Texas. They had previously been settled on two Brazos River reservations that had been established in 1854. 575. Faben, W. W. “Indians of the Tri-State Area: The Potowatomis, The Removal.” Northwest Ohio Quarterly 40 (Spring 1968): 68–84. Potowatomi removal began in 1837, one year after they signed a removal treaty. The removal process continued for several years. 576. Fausz, J. Frederick. “Becoming ‘A Nation of Quakers’: The Removal of the Osage Indians from Missouri.” Gateway Heritage 21 (Summer 2000): 28–39.

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The story of the Osage removal is particularly tragic because they had never violently resisted U.S. expansion and had been productive contributors to the commercial fur trade. Their efforts to protect their capitalist role against other tribes ironically made them more vulnerable to anti-Indian sentiment. They lost lands and their economic position because of the 1808 Treaty of Fort Osage. They received comparatively better terms in another land cession treaty in 1825 because the U.S. government wished to transform them into Christian farmers on new lands in Kansas. 577. Fensten, Jos. J. “Indian Removal.” Chronicles of Oklahoma 11 (December 1933): 1072–83. A short encyclopedic account giving historical and cultural background on tribes and details on when and how they surrendered tribal lands through treaties. Included are the Seneca, Eastern Shawnee, Quapaw, Ottawa, Wyandot, Kaskaskia, Peoria, Piankishaw, Wea, Miami, and Modoc tribes. 578. Finger, John R. “The Abortive Second Cherokee Removal, 1841–1844.” Journal of Southern History 47 (May 1981): 207–26. After the removal of the Ross group from Georgia, 1,100 Cherokees remained in North Carolina. Without a public outcry for the removal, they stayed in their North Carolina homes. 579. Finger, John R. “The Impact of Removal on the North Carolina Cherokees.” In Cherokee Removal: Before and After, edited by William L. Anderson, 96–111. Athens: University of Georgia Press, 1991. Some of this group tenaciously and successfully resisted removal and William Thomas played an important role in enabling them to do so. The struggle also necessitated their coming together as a community with a communal land based. 580. Finger, John. “The Saga of Tsali: Legend Versus Reality.” North Carolina Historical Review 56 (January 1979): 1–18. During the Cherokee removal, Tsali is said to have surrendered himself to General Scott on a murder charge in exchange for Scott’s allowing Cherokees to remain in North Carolina. Finger discusses the North Carolina Cherokee people’s legal status at that time and analyzes the historical record of events. He finds no evidence that the Army initially mistreated Tsali or his band and concludes that Tsali did not willingly surrender. 581. Forbes, Gerald. “The Part Played by the Enslavement of the Indians in the Removal of the Tribes to Oklahoma.” Chronicles of Oklahoma 16 (June 1938): 163–70.

Concentrates on the role Indian slavery played in the colonial development, destabilization, and depopulation of the Southeast. 582. Foreman, Grant. Indian Removal: The Emigration of the Five Civilized Tribes of Indians. Norman: University of Oklahoma Press, 1989; first edition, 1932. Narrative that points to tribal achievements prior to removal, as well as government mismanagement and consequent unnecessary suffering. It is divided into five sections, one each for the Choctaws, Creeks, Chickasaws, Cherokees, and Seminoles. 583. Foreman, Grant. The Last Trek of the Indians. Chicago: University of Chicago Press, 1946. Account of the removal of tribes from north of the Ohio River, which was more complicated than that of the southern tribes in that these groups were less homogenous and their removal was haphazard. Chapters focus on the Potawatomis, Miamis, Sauk, Foxes, Illinois, Kickapoos, Osages, Kaws, Quapaws, and Modocs. 584. Fritz, Henry E. “Humanitarian Rhetoric and Andrew Jackson’s Indian Removal Policy.” Chronicles of Oklahoma 79 (Spring 2001): 62–91. Jackson’s rhetoric shows that he “was neither an Indian hater . . . nor a statesman whose foremost concerns were justice and humanitarian treatment of Native Americans.” He crafted rhetoric to justify actions that he wanted, and politically had, to carry out. 585. Gage, Duane. “Oklahoma: Resettlement Area for Indians.” Chronicles of Oklahoma 47 (Autumn 1969): 282–97. Oklahoma became home to so many tribes because of “national politics, misleading geographic reports, racial prejudice, land greed, accessibility, and the presence of fierce plains tribes.” 586. Garrison, Tim Alan. “Beyond Worcester: The Alabama Supreme Court and the Sovereignty of the Creek Nation.” Journal of the Early Republic 19 (Autumn 1999): 423–50. Removal contradicted the nation’s policy of treating Indian Country as a territory outside of any state’s authority. The non-enforcement of Worcester opened the door for southern expansionists to force their state court decision and remove tribes. 587. Garrison, Tim Alan. The Legal Ideology of Removal: The Southern Judiciary and the Sovereignty of Native American Nations. Athens: University of Georgia Press, 2002. The southern tribes’ removal began with the Supreme Court Cherokee cases. During this time of states’ rights, state courts were involved in the re-

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moval, making rulings that affected the fate of the southeastern tribes from the state bench, notably in Corn Tassels, Caldwell, and Tennessee. The courts declared that tribes were subject to state law. 588. Gibson, Arrell M. “America’s Exiles.” Chronicles of Oklahoma 54 (Spring 1976): 3–15. Overview of the Southern tribes’ removals to Indian Territory that serves as an introduction to a special issue focused on Indian colonization in Oklahoma. 589. Gibson, Wayne Dell. “Cherokee Treaty Party Moves West: The Bell-Deas Overland Journey, 1838–1839.” Chronicles of Oklahoma 79 (Fall 2001): 314–35. Account of John Adair Bell’s and the Treaty Party’s journey west after securing the right to move on their own. 590. Gordon, Leon M., II. “The Red Man’s Retreat from Northern Indiana.” Indiana Magazine of History 46 (March 1950): 39–60. Focuses on increasingly hostile white relations with the Potawatomis and Miamis after 1830, ending with tribal removal. Relevant treaties are detailed. 591. Green, Michael D. The Politics of Indian Removal: Creek Government and Society in Crisis. Lincoln: University of Nebraska Press, 1982. Analyzes Creek political and social changes in response to increasing outside pressure. In an unsuccessful attempt to prevent land loss and removal, the Creeks increased the authority of their centralizing government at the cost of decreasing town autonomy and exacerbating internal factionalism. 592. Grinde, Donald, Jr. “Cherokee Removal and American Politics.” Indian Historian 8 (Summer 1975): 33–42. Examines the politics that influenced Cherokee removal. Contradictions abounded. Jackson was an unprincipled man who refused to follow the Supreme Court’s decision, and his states’ rights position made him a simple opportunist.

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595. Haes, Brenda L. “Fort Sill, the Chiricahua Apaches, and the Government’s Promise of Permanent Residence.” Chronicles of Oklahoma 78 (Spring 2000): 28–43. For twenty-seven years, the U.S. government incarcerated a group of Chiricahua Apache prisoners of war in Florida, Alabama and Oklahoma. The federal government promised them the right to remain at Fort Sill permanently, but eventually removed many of them to New Mexico, deciding that it would better serve the Army’s needs. 596. Hampton, Carol. “Indian Colonization in the Cherokee Outlet and Western Indian Territory.” Chronicles of Oklahoma 54 (Spring 1976): 130–48. Brief account of the federal resettlement of twentysix tribes in these regions between 1855 and 1894. 597. Harris, Frank H. “Seneca Sub-Agency, 1832–1838.” Chronicles of Oklahoma 42 (Summer 1964): 75–94. In 1831, a band of Senecas living in Ohio willingly entered into negotiations to relocate to Indian Territory. 598. Hauptman, Laurence M. “General John E. Wool in Cherokee Country, 1836–1837: A Reinterpretation.” Georgia Historical Quarterly 85 (Spring 2001): 1–26. Wool was a professional military man who was not as harsh in his tactics as was Scott, but was calculating in his efforts to compel Cherokees to accept removal. 599. Hayter, Earl W. “The Ponca Removal.” North Dakota Historical Quarterly 6 (July 1932): 262–75. Indian and white civilizations were incompatible. The federal government did not protect Poncas from Sioux incursion and, desiring to keep peace with the latter group, planned to remove them from Dakota Territory to Indian Territory. Under Standing Bear, the Poncas, with Sioux consent, secured the right in 1881 to remain in Dakota.

593. Guttman, Allen. States’ Rights and Indian Removal: The Cherokee Nation v. The State of Georgia. Boston: D. C. Heath and Company, 1965. Compilation of documents including ones supporting and opposing removal, the Cherokee constitution, John Q. Adams’s message of 1828, writings of other federal and state officials, and the Worcester decision.

600. Heidler, David S. and Jeanne T. Heidler. Indian Removal. New York: W. W. Norton & Co., 2007. Collection of documents with introductions and reprinted interpretive essays by other authors studying removal and its larger political context. Related treaties and the Cherokee constitution are included in the documents section, as are writings by contemporary reformers, politicians, and tribal leaders.

594. Gwydir, R. D. “A Record of the San Poil Indians.” Washington Historical Quarterly 8 (October 1917): 243–50. First-hand account of tense negotiations with Skolaskin, chief of the San Poil Indians, regarding government plans to resettle Chief Joseph’s band on land claimed by Skolaskin’s people.

601. Herring, Joseph B. The Enduring Indians of Kansas: A Century and a Half of Acculturation. Lawrence: University of Kansas Press, 1990. Many tribes were removed from the Old Northwest to what became Kansas during the first half of the nineteenth century, but only a few were allowed to stay, including some Kickapoos, Potawatomis,

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Chippewas, Munsees, Iowas and Sacs. They endured by acculturating while not assimilating and thus won white acceptance 602. Hershberger, Mary. “Mobilizing Women, Anticipating Abolition: The Struggle against Indian Removal in the 1830s.” Journal of American History 86 (June 1999): 15–40. Catherine Beecher and Lydia Sigourney led a women’s petition campaign to block removal policy and led women to rethink their positions on the abolition of slavery. 603. Hoig, Stan. Night of the Cruel Moon: Cherokee Removal and the Trail of Tears. New York: Facts on File, 1996. Narrative account of the removal and events in the preceding years. 604. Holland, Reid A. “Life in the Cherokee Nation, 1855–1860.” Chronicles of Oklahoma 49 (Autumn 1971): 284–301. In their transition after removal, Cherokees faced economic difficulties, insufficient infrastructure, interference of white traders with free trade, and difficulties dealing with the neutral lands and slavery. Otherwise they were progressing economically, politically, and socially until the Civil War proved a great disruption. 605. Holm, Tom. “Cherokee Colonization in Oklahoma.” Chronicles of Oklahoma 54 (Spring 1976): 60–76. Although they made up the bulk of the removed members of the tribe, the Cherokee group removed in the 1830s was neither the first nor last Cherokee group to make the journey to Indian Territory. 606. Horsman, Reginald. “The Origins of Oneida Removal to Wisconsin, 1815–1822.” In Laurence M. Hauptman and L. Gordon McLester III, eds. The Oneida Indian Journey: From New York to Wisconsin, 1784–1860. 53–69. Madison: University of Wisconsin Press, 1999. Explains a variety of factors leading to removal, including the actions of New York state government, missionaries, land speculators, and some Oneidas. Eleazer Williams played the most decisive part. 607. Iobst, Richard W. “William Holland Thomas and the Cherokee Claims.” In The Cherokee Indian Nation: A Troubled History, edited by Duane H. King, 181–201. Knoxville: University of Tennessee Press, 1979. Thomas assisted Eastern Cherokees in pursuing claims for removal and subsistence allowances, leading to successful passage of an 1848 bill. 608. Jack, Theodore H. “Alabama and the Federal Government: The Creek Indian Controversy.” Mississippi Valley Historical Review 3 (December 1916): 301–17.

Alabama defended the position that the Constitution did not permit the U.S. to enact a treaty that limited state authority and that the removal of state residents from tribal lands slated for cession by treaty was prohibited. 609. Jahoda, Gloria. The Trail of Tears. New York: Holt, Rinehart and Winston, 1975. Standard and tragic account of Indian removal. 610. Jordan, Glenn H. “Choctaw Colonization in Oklahoma.” Chronicles of Oklahoma 54 (Spring 1976): 16–33. Details a sequence of treaty negotiations, disputes and compromises during the 1820s surrounding efforts to remove the Choctaws from Mississippi, including the 1820 Treaty of Doak’s Stand and the Treaty of 1825. The 1830 Treaty of Dancing Rabbit Creek finally established the structure for removal. 611. Kelleher, Michael. “The Removal of the Southeastern Indians: Historians Respond to the 1960s and the Trail of Tears.” Chronicles of Oklahoma 78 (Fall 2000): 346–53. Political and cultural change in the 1960s and 1970s shaped historians’ perspectives and sparked renewed interest in Indian issues, including the Cherokee Removal. 612. Klios, George. “‘Our People Could Not Distinguish One Tribe from Another’: Expulsion of the Reserve Indians from Texas.” Southwestern Historical Quarterly 97 (April 1994): 599–619. In 1859, Indians were expelled from two reserves in North Texas. Reserve Indians had been unfairly blamed for raids. This event exemplifies larger themes in Indian relations, including “the use of the generic concept ‘Indian’ to describe diverse groups; the policy options of ‘civilization’ of the indigenous people versus expulsion, with no other alternatives considered; and state–federal relations regarding Indian matters.” 613. Klopfenstein, Carl G. “The Removal of the Wyandots from Ohio.” Ohio Historical Quarterly 66 (April 1957): 119–36. James B. Gardiner negotiated an 1832 treaty in which Wyandots on the Big Spring reservation ceded 16,000 acres, but they wished to reside on the Grand Reserve at Upper Sandusky and not remove west. The Christian party opposed and the traditional group supported removal. They finally agreed in 1845 to relinquish all claims to lands in Ohio under the 1842 Johnson Agreement. 614. Klopfenstein, Carl G. “Westward Ho: Removal of the Ohio Shawnee, 1832–1833.” Bulletin of the Historical and Philosophical Society of Ohio 15 (January 1957): 3–31.

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In 1750, the two Shawnee bands were united for the first time in eastern Ohio and western Pennsylvania. The 1795 Greenville treaty, subsequent treaties and the 1830 Removal Act set the stage in their journey to eastern Kansas.

in North Carolina, 1833.” North Carolina Historical Review 62 (April 1985): 157–78. Jones may have been unjustly prosecuted for a crime he did not commit because he and other missionaries were obstacles to Cherokee removal.

615. Knight, Oliver. “Cherokee Society under the Stress of Removal, 1820–1846.” Chronicles of Oklahoma, 32 (Winter 1954–1955): 414–28. They retained their core identity, but the Cherokees began to lose their traditional ways as they adapted to post-removal life.

622. McLoughlin, William. “The Reverend Evan Jones and the Cherokee Trail of Tears, 1838–1839.” Georgia Historical Quarterly 73 (Fall 1989): 559–83. A missionary’s accounts are employed to depict the tragic removal. In recognition of his service to them, the Cherokee Council later granted him full tribal citizenship.

616. LaVere, David. Contrary Neighbors: Southern Plains and Removed Indians in Indian Territory. Norman: University of Oklahoma Press, 2000. Removed southeastern tribes made great changes in their lives and often adopted the white market economy. The enactment of removal treaties put them into conflict with tribes of the southern plains. Efforts by the Five Civilized nations to change their new neighbors failed. 617. Lightfoot, B. B. “The Cherokee Emigrants in Missouri, 1837–1839.” Missouri Historical Review 56 (January 1962): 156–67. Short account of Cherokees crossing through southern Missouri after their removal. 618. McLoughlin, William. After the Trail of Tears: The Cherokees’ Struggle for Sovereignty, 1839–1890. Chapel Hill: University of North Carolina Press, 1993. Narrative account of tribal efforts to reconstruct their society and government and perpetuate their sovereignty in the face of white opposition. 619. McLoughlin, William. Cherokee Renascence in the New Republic. Princeton, NJ: Princeton University Press, 1986. The Cherokee story in the nineteenth century illustrates that America’s republican ideology of the age was racially exclusive. In efforts to survive and adapt, the Cherokees also established an ideology of nationhood based on exclusive identity. This nationalism, however, conflicted with states’ expansionary aims. The account ends with removal. 620. McLoughlin, William. “Georgia’s Role in Instigating Compulsory Indian Removal.” Georgia Historical Quarterly 70 (Winter 1986): 605–32. The main cause of Georgia’s desire to remove Indians was “the rise of romantic nationalism and the concomitant rise of a strong sense of states’ rights.” The Cherokees and other regional tribes simultaneously placed more stress on their own nationhood and sovereignty. 621. McLoughlin, William. “The Murder Trial of the Reverend Evan Jones, Baptist Missionary to the Cherokee

623. McLoughlin, William. “Thomas Jefferson and the Beginnings of Cherokee Nationalism.” William and Mary Quarterly 32 (October 1975): 547–80. Cherokee national identity developed during the first removal crisis of 1806–1809, when Jefferson offered them the opportunity to emigrate west of the Mississippi River. Despite dissent, they united under Black Fox, a move that solidified their identity and resolve to not leave their homelands. 624. Mahan, Bruce. “Moving the Winnebago.” Palimpsest 3 (February 1922): 33–52. In 1846, the Winnebagos agreed to move from Iowa to an upper Mississippi Reservation. Mahan describes the difficulties and hardships they faced in relocating. 625. Manzo, Joseph T. “Emigrant Indian Objections to Kansas Residence.” Kansas History 4 (Winter 1981): 246–54. Indians viewed the Kansas lands to which they were to be removed as undesirable and inadequate. Tribes worried about environmental differences and potential conflicts with their Indian and non-Indian neighbors. 626. Martin, Lucille J. “A History of the Modoc Indians.” Chronicles of Oklahoma 47 (Winter 1969–1970): 398–446. Concentrates on the Modocs who did not return from Oklahoma to Oregon, but instead became citizens of Oklahoma or neighboring states. A considerable portion of the article is also devoted to the Modoc War and resettlement in Indian Territory in the 1870s. Martin stresses the successful adaptation of Modocs to an agricultural economy. 627. Meyers, Jason. “No Idle Past: Uses of History in the 1830 Indian Removal Debates.” Historian 63 (2000): 53–65. Examines the era of the Second Party when Whigs and Democrats used historical rhetoric to defend or oppose Indian removal. The anti-removal faction defended tribal sovereignty and the removal faction opposed tribal sovereignty and supported states’ rights. Both sides distorted truth.

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628. Miles, William. “‘Enamoured with Colonization’: Issac McCoy’s Plan of Indian Reform.” Kansas Historical Quarterly 38 (Autumn 1972): 268–86. Indian removal policy and the African American colonization policy were parallel. McCoy claimed that the idea for the former policy came to him suddenly, but he was influenced by the latter. 629. Miner, H. Craig and William E. Unrau. The End of Indian Kansas: A Study of Cultural Revolution, 1854–1871. Lawrence: Regents Press of Kansas, 1978. During this period, a second, and mostly forgotten, major Indian removal took place when tribes, including the Osages, were relocated from Kansas to Indian Territory. Only a small number of Native Americans remained, including the Prairie Band of Potawatomis, some Kickapoos, Sacs, and Foxes. Not willing to exercise extreme force, whites achieved their aims through pressure, coercion, and temptation.

634. Osborne, Alan. “The Exile of the Nez Percé in Indian Territory, 1878–1885.” Chronicles of Oklahoma 56 (Winter 1978–1979): 450–71. The 1878 Indian appropriations bill led to the prisoners’ removal to the Quapaw Reserve. In 1879 they were moved to the Oakland Reserve. Osborne considers their experiences in Indian Territory to have been tragic but also notes their economic achievements. 635. Parker, Linda. “Indian Colonization in Northeastern and Central Indian Territory.” Chronicles of Oklahoma 54 (Spring 1976): 104–29. Account of the removal of thirty-one tribal groups, including remnants from the Old Northwest, the Quapaw, Modoc, and Iowa tribes. Though receiving less attention than tribes like the Cherokees, their removal was no less tragic. Forced removals stemmed from the 1787 opening of the Old Northwest Territory.

630. Neighbours, Kenneth F. “Indian Exodus Out of Texas in 1859.” West Texas Historical Association Year Book 36 (1960): 80–97. The U.S. failure to place the Comanches on a reservation doomed the fledging and fragile Texas reservation system and, by 1859, the Texans were able to force the issue and move the tribes north into Indian Territory.

636. Perdue, Theda. “The Conflict Within: The Cherokee Power Structure and Removal.” Georgia Historical Quarterly 73 (Fall 1989): 467–91. A Cherokee elite controlled politics by winning mass support, even though it and the masses did not share the same materialistic values. A rising middle class felt its interests were impeded by the elite and used the removal issue as an opportunity to achieve their social and political aims. The majority of Cherokees shared the elite’s commitment to oppose removal.

631. Neumeyer, Elizabeth. “Michigan Indians Battle against Removal.” Michigan History 55 (Winter 1971): 275–88. Because most Indians lived in the northern sections of the state, few farmers wanted their lands. Government vacillation in the 1840s aided tribal efforts to avoid removal, and tribal members were consumers in Michigan’s economy. Only the Pottawatomis, living in southern Michigan, were removed.

637. Perdue, Theda and Michael D. Green. The Cherokee Removal: A Brief History with Documents. Boston, MA: Bedford Books of St. Martin’s Press, 1995. Collection of primary documents along with introductions by the authors and related questions meant for use in a history classroom. Materials relate to Cherokee culture, federal policy, Georgia policy, legislation and litigation, the Treaty of New Echota, and the Trail of Tears.

632. Norgren, Jill. “Lawyers and the Legal Business of the Cherokee Republic in Courts of the United States, 1829–1835.” Law and History Review 10 (Autumn 1992): 253–314. Instead of waiting for removal, Cherokees actively sought legal counsel and voiced their concerns through the American legal system. Principle Chief Ross and his subordinates were assertive in their dealings with attorneys and the U.S.

638. Prucha, Francis Paul. “Andrew Jackson’s Indian Policy: A Reassessment.” Journal of American History 56 (December 1969): 527–39. Demonizing Andrew Jackson’s Indian policy is too simplistic. He was a complicated man dealing with a complex problem and he approached tribal affairs with justice and fairness. Even removal had the tone of fairness.

633. Norwood, Frederick. “Strangers in a Strange Land: Removal of the Wyandot Indians.” Methodist History 13 (April 1975): 45–60. The Wyandots were removed from Ohio to lands west of the Mississippi River in 1843.

639. Prucha, Francis Paul. “Indian Removal and the Great American Desert.” Indiana Magazine of History 59 (December 1963): 299–322. Refutes the commonly held belief that American policy-makers specifically intended to “dump” removed tribes in the Great American Desert.

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640. Prucha, Francis Paul. “Thomas L. McKenney and the New York Indian Board.” Mississippi Valley Historical Review 48 (March 1962): 635–55. When tribes were being forced into removal, the New York Indian Board defended the tribal nations’ right so stay on their existing lands. Thomas McKenney was the humanitarian supporter of removal and used this organization with Episcopalian support to defend the nation’s removal policy. 641. Purcell, L. Edward. “The Mesquakie Indian Settlement in 1905.” Palimpsest, 55 (March/April 1974): 34–55; reprinted in Iowa Heritage Illustrated 85 (Summer and Fall 2004): 92–103. The tribe lost their Iowa lands after Black Hawk’s War in 1832 and were removed to a Kansas reservation, along with the Sauks, in 1847. They were allowed to return to Iowa after 1856, where they have maintained positive relations with the state. 642. Ragsdale, John W., Jr. “The Dispossession of the Kansas Shawnee.” UMKC Law Review 58 (Winter 1990): 209–56. The Shawnees were trying to assimilate, but they were nonetheless driven from Kansas to Indian Territory. Despite removal, title issues in Kansas still remained, prolonging the agony of this event. 643. Reid, John. “Law and the Indians on the Arkansas Frontier: ‘Stand Stripped, But Strongly Nerved.’” Arkansas Law Review and Bar Association Journal 18 (Spring 1964): 1–29. Arkansas legal history began with Indians and whites attempting to forge bonds. The tribe’s relations, especially the Western Cherokee, depended on federal treaty protections, but they were removed from Arkansas Territory. 644. Rinehart, Melissa A. and Kate A. Berry. “Kansas and the Exodus of the Miami Tribe.” In The Tribes and the States: Geographies of Intergovernmental Interaction, edited by Brad A. Bays and Erin Hogan Fouberg, 29–50. Lanham, MD: Rowman and Littlefield, 2002. Focuses on state efforts to enable white settlement and initiate Indian removal. Methods included legislation favoring squatters and commerce, as well as fraudulent land deals and military threats. A table lists Miami–U. S. treaties and land cessions made between 1795 and 1840. 645. Rolater, Fred S. “The American Indian and the Origin of the Second American Party System.” Wisconsin Magazine of History 76 (Spring 1993): 180–203. American Indian issues influenced the nation’s politics. Democrats favored removal and the Whigs opposed that course of action.

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646. Ronda, James P. “‘We Have a Country’: Race, Geography, and the Invention of Indian Territory.” Journal of the Early Republic 19 (Winter 1999): 739–55. Indian Territory provided for the segregation of Indians from the rest of the nation’s population. With removal, the tribes made it a home, giving the land a new meaning. 647. Satz, Ronald. American Indian Policy in the Jacksonian Era. Lincoln: University of Nebraska Press, 1975. Explores the motivations behind and results of Indian policy in the Jacksonian Era. Removal was largely motivated by the political and economic exigencies of the day. Andrew Jackson was not an Indian hater but a believer in national expansion and states’ rights. Because the Creeks and Chickasaw would not agree to removal, Jackson used an allotment strategy that led to land grabs and provoked the tribes to give in. Political patronage in the Indian Office often outweighed concerns for Native Americans. 648. Satz, Ronald N. “The Cherokee Trail of Tears: A Sesquicentennial Perspective.” Georgia Historical Quarterly 73 (Fall 1989): 431–66. Cherokees were engaged in an internal political struggle at the same time that they were fighting for their sovereign rights. The Trail of Tears was “an American tragedy as well as a Cherokee tragedy” because American policy-makers did not act according to Justice Marshall’s vision. 649. Satz, Ronald N. “Rhetoric versus Reality: The Indian Policy of Andrew Jackson.” In Cherokee Removal: Before and After, edited by William L. Anderson, 29–54. Athens: University of Georgia Press, 1991. Considers other historians’ interpretations of Jackson’s motives for removal policy and judges the difference between his statements about removal’s benefits for Indian people and its negative effects. 650. Savage, William W., Jr. “Creek Colonization in Oklahoma.” Chronicles of Oklahoma 54 (Spring 1976): 34–43. Factionalism weakened the tribe and impeded their ability to unite in order to prevent their removal to Indian Territory. 651. Schilz, Thomas F. “Plight of the Tonkawas, 1875–1898.” Chronicles of Oklahoma 64 (Winter 1986/87): 68–87. In spite of their service to the U.S. as scouts, the federal government showed no loyalty to the Tonkawas during these years. The tribe wanted lands in Texas but was instead removed to Indian Territory and subjected to allotment policy.

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652. Silver, James W. “A Counter-Proposal to the Indian Removal Policy of Andrew Jackson.” Journal of Mississippi History 4 (October 1942): 207–15. General Edmund Pendleton Gaines opposed Indian removal and argued instead for the education of tribal people. 653. Smith, Robert E. “The Wyandot Exploring Expedition of 1839.” Chronicles of Oklahoma 55 (Fall 1977): 282–92. Before agreeing to remove to Indian Territory, Wyandots sent an exploring expedition funded under terms of the Wyandot Treaty of 1836. Smith follows the story through subsequent federal efforts to secure their removal, including the 1867 treaty that finally provided land for them on the Seneca Reserve.

tion for their forced removal to Indian Territory after their lands were turned over to the Sioux. 659. Thomas, James. “The Osage Removal to Oklahoma.” Chronicles of Oklahoma 55 (Spring 1977): 46–55. Hoping to avoid white settlers, the tribe requested sale and exchange of their Kansas lands for lands in Indian Territory. They were denied until the Cherokees were forced to sell lands to them as punishment for allying with the Confederacy.

654. Stein, Gary C. “Indian Removal as Seen by European Travelers.” Chronicles of Oklahoma 51 (Winter 1973–1974): 399–410. Provides examples of European condemnation of the American policy and the American public’s failure to criticize it.

660. Thompson, Gregory C. “The Unwanted Indians: The Southern Utes in Southeastern Utah.” Utah Historical Quarterly 49 (Spring 1981): 189–203. Three Southern Ute bands were excluded from an 1880 removal agreement which moved other Utes to Utah. Southern Utes debated the wisdom of seeking a permanent homeland in San Juan County, Utah, but agreed to do so. Mormon residents, cattle ranchers, the Indian Rights Association, and the Utah territorial legislature allied to oppose the proposed reservation and blocked the removal bill. Instead the lands were allotted and the reservation opened for settlement.

655. Strickland, Rennard. “Yellow Bird’s Song: The Message of America’s First Native American Attorney.” Tulsa Law Journal 29 (Winter 1993): 247–62. Cherokee John Rollin Ridge (Yellow Bird) was born in Georgia and died in California. His family favored a tribally controlled removal versus a forced removal and were thus on the wrong side of Cherokee law. After he killed a pro-Ross supporter, he left for California. He missed his Cherokee lands and hoped to develop a southern Cherokee nation outside the influence of the Ross party.

661. Turcheneske, John A. “Disaster at White Tail: The Fort Sill Apaches’ First Ten Years at Mescalero, 1913–1923.” New Mexico Historical Review 53 (April 1976): 109–32. Chiricahua Apaches were resettled from Fort Sill to Mescalero despite American promises that they would retain the former reservation, and regardless of their efforts to become economically self-sufficient. The move, regretted by the Apaches, led to ten years of impoverishment and broken federal promises.

656. Stuart, Benjamin F. “The Deportation of Menominee and His Tribe of the Pottawattomie Indians.” Indiana Magazine of History 18 (September 1922): 255–65. The tribe’s 1838 removal from its Twin Lakes reservation to Kansas was a dark chapter in Indiana history. 657. Syndergaard, Rex. “The Final Move of the Choctaws, 1825–1830.” Chronicles of Oklahoma 52 (Summer 1974): 207–19. The federal government acted unjustly and intimidated the Choctaws in order to remove them. Continuing threats ultimately persuaded the tribe to sign the Treaty of Dancing Rabbit Creek in 1830. The chiefs would not have signed had not Article XIV allowed some to accept allotments and remain in Mississippi. 658. Taylor, Quentin. “President Hayes and the Poncas.” Chronicles of Oklahoma 81 (Spring 2003): 104–11. Hayes was aware of the wrongs done to Native Americans and ended the Indian removal policy, but not soon enough to prevent the Poncas’ suffering. Taylor briefly considers Ponca efforts to gain compensa-

662. Van Every, Dale. Disinherited: The Lost Birthright of the American Indian. New York: William Morrow and Company, 1966. History of Indian removals in the 1830s in which the Indians are deemed victims, but blamed for their failure to adapt to changing circumstances during the previous two-hundred years. America derived strength from the division of power between national and state governments, but this division contributed to the injustice done to Indians. 663. Venables, Robert W. “Victim Versus Victim: The Irony of the New York Indians’ Removal to Wisconsin.” In American Indian Environments: Ecological Issues in Native American History, edited by Christopher Vecsey and Robert W. Venables, 140–51. Syracuse, NY: Syracuse University Press, 1980. New York was less successful than other states in prompting Indian removal between 1812 and 1860, but Oneidas, Stockbridges, Munsees, and Brothertowns were removed to Wisconsin between 1821 and 1848. Their refugee story became one of victims ver-

Nineteenth-Century Removal and Resettlement

sus victims as they were viewed as “exploitive interlopers” by the Menominee resident there. 664. Vipperman, Carl J. “‘Forcibly If We Must’ The Georgia Case For Cherokee Removal, 1802–1832.” Journal of Cherokee Studies 3 (Spring 1978): 103–10. Georgia’s case for Cherokee removal stemmed from the Yazoo Land Act, a scandal giving speculators 35 million acres in Georgia. In 1802, Georgia and the U.S. agreed that Georgia would cede claims to Alabama and Mississippi, Georgia would be compensated, and the U. S. would purchase Indian title to the tribal lands within Georgia. The 1802 agreement gave Georgia a strong cause to push for tribal removal. 665. Wallace, Anthony F. C. The Long Bitter Trail: Andrew Jackson and the Indians. New York: Hill and Wang, 1990. History of the Indian Removal Act and the subsequent tribal relocations focusing on Jackson’s central role but also the larger economic and political forces contributing to the policy.

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668. Wilkins, Thurman. Cherokee Tragedy: The Ridge Family and the Decimation of a People, 2nd edition. Norman: University of Oklahoma Press, 1986; first published by Macmillan, 1970. Collective biography of Major Ridge, John Ridge, and Elias Boudinot and their role in the Treaty of New Echota and Cherokee removal. The Ridges justified the treaty signing as the act of an intelligent minority attempting to do the greatest good for the misled majority. 669. Wright, Muriel H. “The Removal of the Choctaws to the Indian Territory, 1830–1833.” Chronicles of Oklahoma 6 (June 1928): 103–28. Narrative account beginning with the 1830 treaty of Dancing Rabbit Creek and ending with the last season of emigration. The tribe suffered despite government assurances of good treatment.

666. Washburn, Wilcomb E. “Indian Removal Policy: Administrative, Historical and Moral Criteria for Judging Its Success or Failure.” Ethnohistory 12 (Summer 1965): 274–78. Removal may have been an administrative success, but it was not a moral success based on the world views of tribal people.

670. Young, Mary E. “Indian Removal and Land Allotment: The Civilized Tribes and Jacksonian Justice.” American Historical Review 64 (October 1958): 31–45. The porous frontier line had been breached by 1830 as white settlers were pushing the settlements to the Mississippi River. Behind the line were many tribal resident nations. The newfound mixed-blood leaders stood in the way of justice by preventing removal and keeping less fortunate tribal members in poverty. Even those who took allotments often lost these lands.

667. Welsh, Louise. “Seminole Colonization in Oklahoma.” Chronicles of Oklahoma 54 (Spring 1976): 77–101. After removal westward, the tribe had to undergo further relocations to gain independent tribal status separate from the Creeks. This survey beigins with tribal origins and concludes with the 1856 treaty which ended their connection to the Creeks and established the new Seminole Nation.

671. Young, Mary. “The Exercise of Sovereignty in Cherokee Georgia.” Journal of the Early Republic 10 (Spring 1990): 43–63. The Georgians respected men of property and the Cherokee leaders were men of property. Nevertheless, the 1802 agreement with the U.S. had not been fulfilled. As a result, the Georgia legislature began to force the removal issue, but did not expect much resistance from the Cherokees.

Chapter 5 Reservation Policy: Establishment, Diminishment, and Disestablishment 672. Benson, Todd. “The Consequences of Reservation

675. Billie, Bobby. “The Independent Traditional Seminole Nation: Defending Our Heritage and Our Land.” St. Thomas Law Review 14 (Winter 2001): 337–40. A traditional leader discusses the importance of not living on the reservation, but living where the creator intended the people to, and in the process maintaining the Independent Seminole Nation.

Life: Native Californians on the Round Valley Reservation, 1871–1884.” Pacific Historical Review 60 (May 1991): 221–44. Challenges scholarly views that stress cultural disintegration rather than perseverance as a consequence of early reservation life. Discusses the assimilationist motivations and practical application of reservation policy in California. A promise to purchase lands to extend reservation boundaries served as an incentive to convince tribal members to move to the Round Valley Reservation. Frustrated with the federal government’s failure to fulfill this promise, some in the tribe purchased lands with their own funds. Rather than representing an acceptance of assimilation, these, and other tribal actions during this era, were efforts to regain self-sufficiency and independence.

676. Biolsi, Thomas. “The Birth of the Reservation: Making the Modern Individual among the Lakota.” American Ethnologist 22 (February 1995): 28–53. An examination of Rosebud and Pine Ridge shows that the Office of Indian Affairs internally pacified the Lakota from 1880–1930s. By constructing a bureaucracy and stressing new self-interests for Lakotas to follow, including blood and property, the U.S. colonized the Lakota politically and economically.

673. Berthrong, Donald J. The Cheyenne and Arapaho Ordeal: Reservation and Agency Life in the Indian Territory, 1875–1907. Norman: University of Oklahoma Press, 1976. Confinement to the reservation in 1875 led to impoverishment and suffering. Efforts to establish cattle herds to alleviate hunger fell short, as did efforts, through allotment, to transform the Cheyenne and Arapahos into farmers.

677. Boulger, John V. “Indians—Reservations—Effect of Later Congressional Acts on Acts Establishing Reservation Boundaries.” North Dakota Law Review 49 (Winter 1973): 410–16. The city of New Town requested to be a municipality outside the Fort Berthold Reservation, even though the exterior reservation boundaries included New Town. The Eighth Circuit Court of Appeals denied the city’s request, ruling that the 1910 surplus act had not diminished the 1891 boundaries.

674. Bigart, Robert. “The Salish Flathead Indians during the Period of Adjustment, 1850–1891.” Idaho Yesterdays 17 (Fall 1973): 18–28. Includes an analysis of federal efforts in the 1870s and 1880s to relocate the Salish from the Bitterroot Valley to the Flathead Reservation, and discusses Salish reactions. In 1891, Charlo, who had resisted removal, agreed to move, in part because of Arlee’s death and Salish poverty in the valley. The Salish successfully adapted to reservation life.

678. Burt, Larry. “Nowhere Left to Go: Montana’s Crees, Metis, and Chippewas and the Creation of Rocky Boy’s Reservation.” Great Plains Quarterly 7 (Summer 1987): 195–209. These three groups were left with an uncertain status vis-à-vis Canada and the U.S. and had no assigned reservation lands late in the reservation era. The U.S. and Canada both pressured the Cree to cross to the opposite side of the international border. Rocky Boy actively campaigned for a Montana reservation for the

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Chippewas, who had by that time befriended and intermarried Métis and Crees. The Chippewa–Cree gained a reservation in 1915. Some Métis found a home there, but others remained landless. 679. Campbell, Susan D. “Reservations: The Surplus Lands Acts and the Question of Reservation Disestablishment.” American Indian Law Review 12, no. 1 (1984): 57–99. Efforts to diminish the exterior boundaries of reservations have reached a critical stage where states are pushing to reduce the size of tribal territorial control and, with it, increase authority over people and control of resources. In 1984, the Supreme Court decided in Solem v. Bartlett that the 1908 act opening the Cheyenne River Reservation to homesteading did not diminish the reservation based on the so-called face of the act. 680. Castile, George Pierre and Robert L. Bee, eds. State and Reservation: New Perspectives on Federal Indian Policy. Tucson: University of Arizona Press, 1992. Essays by various authors attempting to reassess the historical development and persistence of reservations and the tribal–federal relationship, as well as the diverse meaning of reservations to different groups. 681. Chapman, Berlin B. “Dissolution of the Iowa Reservation.” Chronicles of Oklahoma 14 (December 1936): 467–77. President Chester Arthur had established the reservation in Oklahoma Territory by executive order in 1883. The Cherokee Commission, in 1890, concluded its first agreement, with the Iowas, in its effort to dissolve Indian reservations in the territory. A later Court of Claims case awarded the tribe $254,632.59 for surplus lands opened to white settlement in 1891. 682. Chapman, Berlin B. “Establishment of the Iowa Reservation.” Chronicles of Oklahoma 21 (December 1943): 366–77. A portion of the Iowa tribe from Kansas and Nebraska were removed to Indian Territory and, in 1883, obtained a reservation by presidential executive order. 683. Chapman, Berlin B. “Establishment of the Wichita Reservation.” Chronicles of Oklahoma 11 (December 1933): 1044–55. The Wichita reservation was established by an unratified agreement, “and yet maintained its identity as an occupied reservation.” 684. Chapman, Berlin B. “The Otoe and Missouria Reservation.” Chronicles of Oklahoma 26 (Summer 1948): 132–58. In 1869, the tribes agreed to relinquish their reserve in Nebraska and Kansas for one in Indian Territory, but the treaty was not ratified. A later act led to the

tribal purchase of a reservation in Indian Territory in 1883. These lands were allotted under the Dawes Act and the reservation dissolved. 685. Chapman, Berlin B. “The Pottawatomie and Absentee Shawnee Reservation.” Chronicles of Oklahoma 24 (Autumn 1946): 293–305. Account of events leading to the tribes’ removal to Indian Territory and establishment of a reservation there according to an 1867 treaty. 686. Coan, C. F. “Adoption of the Reservation Policy in the Pacific Northwest, 1853–1855.” Oregon Historical Society Quarterly 23 (March 1933): 1–38. Joel Palmer attempted to create reservations as the only means to save Indians of the Oregon and Washington territories. Palmer’s and Stevens’ treatymaking efforts with specific tribes are detailed. 687. Danziger, Edmund J., Jr. “The Crow Creek Experiment: An Aftermath of the Sioux War of 1862.” North Dakota History 37 (Spring 1970): 105–23. After the 1862 Minnesota uprising, the Sioux were removed from Fort Snelling, Minnesota to Crow Creek in Dakota. Winnebagos were also relocated there. The federal experiment failed because of the reservation’s poor location, the relative lack of adult males in the population, mutual incompatibility between the tribes, and the reservation’s isolation. 688. Dozier, Jack. “Coeur d’Alene Country: The Creation of the Coeur d’Alene Indian Reservation in North Idaho.” Idaho Yesterdays 6 (Fall 1962): 2–7. Examines the thirty-six-year process the Coeur d’Alene tribe went through to secure a reservation as a means to maintain their land base. Multiple treaties failed to gain Congressional approval before a treaty was ratified in 1891 establishing a reservation. 689. Findlay, John M. “An Elusive Institution: The Birth of Indian Reservations in Gold Rush California.” In State and Reservation: New Perspectives on Federal Indian Policy, edited by George Pierre Castile and Robert L. Bee, 13–37. Tucson: University of Arizona Press, 1992. The period from 1850 to 1865 were formative years in which the reservation was not clearly defined in California. State and local interests drove federal Indian policy. The reserves failed in the end to serve federal policy goals and the California Indians. 690. Finney, Frank F. “The Kaw Indians and Their Indian Territory Agency.” Chronicles of Oklahoma 35 (Winter 1957–1958): 416–24. Brief account of the establishment of the Kaw agency, the creation of a tribal government in 1883, the leasing of lands for cattle ranching, the application of land allotment according to a 1902 act, and the abolishment of the agency in 1928.

Reservation Policy: Establishment, Diminishment, and Disestablishment

691. Foreman, Grant. “Historical Background of the Kiowa–Comanche Reservation.” Chronicles of Oklahoma 19 (June 1941): 129–40. Begins with the Fort Gibson negotiations in the 1830s and traces subsequent events, including military conflicts, the 1892 negotiations to cede lands they held under their 1867 treaty, and the final opening of over two-million acres of unallotted tribal lands to white settlement in 1901. 692. Fouberg, Erin Hogan. “Jurisdiction in South Dakota: Diminishment and the Question of Indian Character.” In The Tribes and the States: Geographies of Intergovernmental Interaction, edited by Brad A. Bays and Erin Hogan Fouberg, 51–80. Lanham, MD: Rowman and Littlefield, 2002. South Dakota and other states want the Supreme Court to determine that “Congress diminished reservations when they passed surplus lands acts” giving states jurisdiction over non-Indian lands within those existing reservations. Tribes are opposing such a determination. Fouberg examines four diminishment cases in this state. Between 1974 and 1998, the Court found Lake Traverse and Yankton, part of Rosebud, and none of Cheyenne River to be diminished. 693. Giffen, Helen S. and Arthur Woodward. The Story of El Tejon. Los Angeles: Dawson’s Book Shop, 1942. Narrative account of land transfers in this region of California, including discussion of Lt. Edward Fitzgerald Beale’s efforts to establish reservations and rancherias as Superintendent of Indian affairs during the 1850s. 694. Grijalva, James M., Robert Laurence, N. Bruce Duthu, Frank Pommersheim, and Alexander Skibine. “Commentary: Diminishment of Indian Reservations—Legislative or Judicial Fiat?” North Dakota Law Review 71, no. 2 (1995): 415–32. The panel agrees with Robert Laurence that Hagan was better law than Bourland. Diminishment of a reservation by a congressional act does not square with the Constitution that only permits Congress to regulate commerce. 695. Hagan, William T. U.S.–Comanche Relations: The Reservation Years. New Haven, CT: Yale University Press, 1976. Study of treaties, reservation policy, and allotment (particularly the Jerome Agreement) through which, between 1867 and 1906, the Comanches were transformed “from a proud and fiercely independent people into apathetic wards of the United States.” 696. Harper, Susanne Banta. “John Brainerd and the First Indian Reservation.” Indian Historian 12 (Winter 1979): 20–21.

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John and David Brainerd established a reservation in 1745 for the Lenages of New Jersey at Crosswicks. In 1758, the New Jersey legislature created a state reservation for them and the name Brotherton was selected. They sold their lands and moved to New York to be near other tribes. 697. Hart, E. Richard. “The History of Wenatchi Fishing Reservation.” Western Legal History 13 (Summer/Fall 2000): 163–203. The Wenatchi were one of fourteen tribal parties to the Yakima Treaty of 1855 that authorized a reservation. Hart describes the opening of the reservation, before it was even surveyed, in 1893. The tribe continued to maintain their treaty rights. 698. Hauptman, Laurence M. “Governor Blacksnake and the Seneca Indian Struggle to Save the Oil Spring Reservation.” Mid American Historical Review 81 (Winter 1999): 51–73. Blacksnake was a follower of Handsome Lake and fought to save the Oil Spring Reservation in southwest New York from the growing white community of Rochester. Eventually, his work succeeded as most of the small reserve was saved. 699. Heinze, Andrew R. “The Morality of Reservation: Western Lands in the Cleveland Period, 1885–1897.” Journal of the West 31 (July 1992): 81–89. Grover Cleveland stood in contrast to his predecessor, Benjamin Harrison, and other politicians of his day, in his belief that the reservation system was a necessary “half-way house between tradition and modernity.” He used his veto power “to stave off what he considered unjust inroads into the tribal domain.” Examples include Cleveland’s nullification of illegal leases to cattlemen on Cheyenne and Arapaho lands, and his vetoes of railroad right of ways through the Blackfeet reservation and Cherokee Nation in Indian Territory. 700. Hoxie, Frederick E. “From Prison to Homeland: The Cheyenne River Indian Reservation before World War I.” South Dakota History 10 (Winter 1979): 1–24. Henry Dawes and others intended for the Great Sioux Agreement of 1889 to eliminate traditional Teton culture and open their lands for settlement. The reservations forced upon them, however, did not destroy their identity, but instead became “cultural homelands” that gave residents hope for the future. 701. Hughes, John T. and Tom Tobin. “New Town et al.: The Future of an Illusion.” South Dakota Law Review 18 (Winter 1973): 85–132. State officials and tribal leaders clashed in North and South Dakota over reservation boundaries. The issue was whether surplus land acts opened the

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reservations’ unallotted lands to sale and homesteading. Congress intended to diminish the reservation boundaries by passing these surplus land acts. The New Town ruling supporting the tribal position will not withstand deeper scrutiny. 702. Jacobson, Clair. “A History of the Yanktonai and Hunkpatina Sioux.” North Dakota History 47 (Winter 1980): 4–24. Includes discussions of treaties and their placement on reservations at Crow Creek, Standing Rock, Devils Lake, and Fort Peck. 703. Kawashima, Yasu. “Legal Origins of the Reservations in Colonial Massachusetts.” American Journal of Legal History 13 (January 1969): 42–56. By the end of the 1700s, most Native Americans in the Bay Colony were on reservations, thus making them political, economic, and legal centers. Despite an expectation of assimilation, reservations protected them and provided minimum economic needs. 704. Knack, Martha C. “Utah Indians and the Homestead Laws.” In State and Reservation: New Perspectives on Federal Indian Policy, edited by George Pierre Castile and Robert L. Bee, 63–91. Tucson: University of Arizona Press, 1992. Reservation policy was not applied consistently on local levels, in part because of the special interests of local non-Indians. The Kanosh and Washakie offer examples of tribes with non-standard reservations, the former with a mixed allotment and reservation status, and the later reliant on homestead titles. Mormons favored confining Indians to mission colonies, but had no power to establish reservations. Instead they took advantage of homestead laws to help Indians acquire private lands, thus opening tribal lands for sale and settlement.

his Miami band in 1840. The 1872 partitioning of their land led to land loss and impoverishment. 707. McPherson, Robert S. “Boundaries, Bonanzas, and Bickering: Consolidation of the Northern Navajo Frontier, 1870–1905.” New Mexico Historical Review 62 (April 1987): 169–90. Between 1884 and 1895, conflicts between white settlers and mining interests on one hand, and Navajos on the other, over access to lands near the San Juan River led to government judgments expanding the reservation. Between 1895 and 1905, the Navajos consolidated those gains as their farming activity increased and the Shiprock Agency was established. 708. Mattison, Ray H. “The Indian Reservation System on the Upper Missouri, 1865–1890.” Nebraska History 36 (September 1955): 141–72. Describes establishment and administration of reservations in the region. 709. Meyer, Roy W. “The Establishment of the Santee Reservation, 1866–1869.” Nebraska History 45 (March 1964): 59–97. Stresses tribal demoralization, passivity, and inaction. Establishment of the reservation in Nebraska was a positive change for the Santee people. 710. Moore, John H. “The Enduring Reservations of Oklahoma.” In State and Reservation: New Perspectives on Federal Indian Policy, edited by George Pierre Castile and Robert L. Bee, 92–109. Tucson: University of Arizona Press, 1992. Indians residing in areas not designated as reservations are no less Indian as a result. A myth has developed that the Indian reservations of Oklahoma were dissolved through allotment (excepting the Osage), and thus Indian culture in the state dissolved. The legal definition of a reservation includes the fact that they are created and can only be dissolved by the federal government. The laws that established land allotment in Oklahoma, including the Curtis Act, did not include language that abolished reservations.

705. Laurence, Robert. “The Unseemly Nature of Reservation Diminishment by Judicial, as Opposed to Legislative, Fiat and the Ironic Role of the Indian Civil Rights Act in Limiting Both.” North Dakota Law Review 71, no. 2 (1995): 393–413. In tribal diminishment cases, the reduction was confined to that reservation only. If federal court oversight were part of the ICRA, then the federal courts might be more willing to accept tribal civil jurisdiction over non-Indians. Sadly, it seems that the courts cannot stop assaulting tribal sovereignty.

711. O’Neill, Terry, ed. The Indian Reservation System. San Diego, CA: Greenhaven Press, 2002. Excerpts from primary and secondary sources provide multiple perspectives on Indian removal and reservation policy, including land allotment and changes occurring in late-twentieth-century federal Indian policy.

706. Line, Sarah Jane. “The Indians on the Mississinewa.” Indiana Magazine of History 9 (September 1913): 187–94. The Metociniah reservation was established by an 1830 treaty. It was conveyed to Meshingomesia and

712. Opler, Morris E. “The Indian Consolidation Policy and the Chiricahua.” Papers in Anthropology 17 (Spring 1976): 43–50. The Chiricahua faced U.S. efforts in 1855 to reduce their territory in the Southwest. After the Civil War,

Reservation Policy: Establishment, Diminishment, and Disestablishment

the U.S. continued to consolidate them on a smaller land base, and some came to the San Carlos Reservation. Others continued to resist consolidation, were finally captured and taken to Florida and, eventually, were sent as P.O.W.s to Oklahoma. 713. Phillips, George Harwood. Indians and Indian Agents: The Origins of the Reservation System in California, 1849–1852. Norman: University of Oklahoma Press, 1997. A coherent Indian policy began to emerge through negotiations between Indians and agents in the interior of central California. These agents were sent with little preparation because of the tide of white migration to the area during the gold rush. Indian resistance helped shift the agents’ focus from removing them to confining them to reservations. The state was easily able to interfere with these federal efforts, but the agents did not ultimately fail; the U.S. Senate did by rejecting the treaties. 714. Risenhoover, Angela M. “Reservation Disestablishment: The Undecided Issue in Oklahoma Tax Commission v. Sac and Fox Nation.” Tulsa Law Journal 29 (Spring and Summer 1994): 781–98. The Supreme Court ended the debate between a formal reservation and trust land, but did not decide the issue of reservation disestablishment. Because of this uncertainty, the tribes want to see their old boundaries restored, while Oklahoma will continue to push to reduce tribal boundaries. 715. Schusky, Ernest L. “The Upper Missouri Indian Agency, 1819–1868.” Missouri Historical Review 65 (April 1971): 249–69. “Agencies” and “reservations” are not synonymous, nor is it safe to assume that because agencies had been in place for many decades that reservation policy was a long-planned policy. The Upper Missouri Indian Agency was initially a means to facilitate the fur trade and was an extension of Congress’s constitutional right to regulate tribal trade. Reservations were later created around such agencies as the federal drive to acquire tribal lands intensified. 716. Shane, Ralph M. “A Short History of the Fort Berthold Indian Reservation.” North Dakota History 26 (Fall 1959): 181–214. Discusses the 1851 Fort Laramie Treaty and establishment of the reservation, the Fort Berthold Agreement of 1866, and the effects of the Garrison Dam’s completion and of the resulting relocations. 717. Slagle, Richard M. “The Puyallup Indians and the Reservation Disestablishment Test.” Washington Law Review 54 (June 1979): 653–68.

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Despite being opened to homesteaders, Congress never specifically expressed that the Puyallup Reservation was disestablished, so the original boundaries are retained. 718. Slater, Wendy L. “‘Pulling Up the Nails’ From the Uintah Indian Reservation Boundary: Hagen v. Utah.” Creighton Law Review 28, no. 2 (1994–1995): 529–57. In 1994, the Supreme Court ruled in Hagen v. Utah “that Congress intended to diminish the boundaries of the Reservation when it opened lands to non-Indian settlers,” and based their opinion on statutory language, historical facts, and existing demographics. The Supreme Court has placed land-opening acts in two categories, those that diminished the boundaries, and those that offered land for sale. The court applied the former, removing the town of Myton, Utah, from the reservation. 719. Smith, Richard A. “New Town Et Al.: A Reply.” South Dakota Law Review 18 (Spring 1973): 327–47. The legal theory of congressional power to diminish tribal reservation boundaries should not be applied to all reservations. Each reservation must be investigated separately. Congress cannot causally destroy reservations. 720. Smither, Harriet. “The Alabama Indians of Texas.” Southwestern Historical Quarterly 36 (October 1932): 83–108. Historical account focusing on Indian–non-Indian relations, including their settlement on a reserve in the 1850s. The Alabamas are indifferent to the future, have “devoted attachments and implacable resentments, and a distaste for confinement.” 721. Soll, Lauren Natasha. “The Only Good Indian Reservation Is a Diminished Reservation? The New and Diluted Cannons of Construction in Indian Law.” Federal Bar News & Journal 41 (September 1994): 544–51. Reservation diminishment cases are emotional in Indian Country and are best described as battles between sovereigns. In Hagen v. Utah, the Supreme Court declared that the 1905 act diminished the Uintah Valley Reservation, though there was no clear expression of congressional intent to do so. The court has weakened tribal jurisdiction and used contemporary demographics to defend its opinion. 722. Stuart, Kenneth M. “A Brief History of the Chemehuevi Indians.” Kiva 34 (October 1968): 9–27. Many tribal members moved to the Colorado River Reservation after a conflict with the Mohave ended in 1867. In 1907 the Chemehuevi Reservation was created.

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723. Taylor, A. J. “A Lack of Trust: South Dakota v. Yankton Sioux Tribe and the Abandonment of the Trust Doctrine in Reservation Diminishment Cases.” Washington Law Review 73 (October 1998): 1163–1200. The Supreme Court relied on the Solem test (Solem v. Bartlett ). The court relied on a poor legislative history, contemporary demographics, and ambiguous language to determine that a nineteenthcentury Congress intended to diminish a tribal reservation. In so doing, the Supreme Court assisted white landowners and breached the canons of federal law construction. 724. Taylor, Eli F. “Indian Reservations in Utah.” Utah Historical Quarterly 4 (January 1931): 29–31. Discusses the creation, with positive results, of six Utah reservations. 725. Tilleman, Paul J. “Indian Law—Boundary Disestablishment through the Operation of Surplus Land Acts.” Wisconsin Law Review, no. 4 (1976): 1305–31. In Rosebud Sioux Tribe v. Kneip, the Supreme Court ruled that the congressional surplus land acts diminished the reservation. This is a strange decision repre-

senting “a new and confused approach” to treaty interpretation by using legislative history to establish congressional intent, but not examining the text of the three surplus acts. This is a contrary approach to judicial interpretation of reservation diminishment. 726. Tracy, Valerie. “Indian in Transition: The Neosho Agency, 1850–1861.” Chronicles of Oklahoma, 48 (Summer 1970): 164–83. The Quapaw, Seneca, mixed bands of Seneca and Shawnee, and the Osage tribes each ceded lands and were assigned to the agency. 727. Trennert, Robert A., Jr. Alternative to Extinction: Federal Indian Policy and the Beginnings of the Reservation System, 1846–1851. Philadelphia: Temple University Press, 1975. Discusses the important formative five years when the Department of the Interior was organized and the modern reservation system began as not only an alternative to removal but an alternative to combat. The study ends with the Fort Laramie Treaty of 1851 that created the reservation system for the northern plains.

Chapter 6 Land Allotment and Land Consolidation

Discusses modifications to the Dawes Act, including the Burke Act, and the resulting alienation of Cheyenne–Arapaho landholdings, which was a “national disgrace.” Reformers and government officials were “blinded by their ideologies.” Land thieves were the true beneficiaries of this legislation.

729. Ainsworth, Ed. Golden Checkerboard. Palm Desert, CA: Desert-Southwest, Inc., 1965. In 1959, Congress authorized the Secretary of the Interior to equalize the Agua Caliente Band of Cahuilla Indians’ allotments in Palm Springs. The secretary was also charged to protect the allotments. Conservators, often attorneys and judges, were appointed to manage these lands, but they permitted fraud to occur. The program ended in 1970.

733. Blend, B. “The Indian Rights Association, the Allotment Policy, and the Five Civilized Tribes, 1923–1936.” American Indian Quarterly 7 (Spring 1983): 67–80. The IRA pushed for allotment, but forty years later when the disastrous results were apparent among the Five Civilized Tribes, the IRA switch course and opposed land allotment. They published stories on grafters waiting to take Native Americans’ lands.

730. Beaulieu, David L. “Curly Hair and Big Feet: Physical Anthropology and the Implementation of Land Allotment on the White Earth Chippewa Reservation. American Indian Quarterly 8 (Fall 1984): 281–314. A series of acts in the early 1900s made it possible for non-Indians to gain access to Chippewa lands and timber resources, and gave adult mixed-bloods the right to sell their allotments. Federal efforts to prosecute fraud led to an extended legal debate over the definition of full-blood and mixed-blood status. The prosecutors brought physical anthropologists to White Earth to help determine who was a mixed-blood and who a full-blood.

734. Bolster, Mel H. “The Smoked Meat Rebellion.” Chronicles of Oklahoma 31 (Spring 1953): 37–55. In 1909, a Creek group opposed to allotment, led by Chitto Harjo, was blamed for stealing a thousand pounds of smoked bacon, and violence ensued. 735. Brown, Loren N. “The Appraisal of the Lands of the Choctaws and the Chickasaws by the Dawes Commission.” Chronicles of Oklahoma 22 (Summer 1944): 177–91. Explains the procedures used to classify lands and prepare them for allotment. Values ranged from twenty-five cents to $6.50 per acre.

731. Behrens, Jo Lea Wetherilt. “Forgotten Challengers to Severalty: The National Indian Defense Association and Council Fire.” Chronicles of Oklahoma 75 (Summer 1997): 128–59. Thomas Bland, editor of the Council Fire, and other members of the NIDA, were among those American reformers who opposed land allotment in severalty. They believed that assimilation would best be accomplished if tribes were allowed to retain aspects of their traditional governance and culture during their transition to civilization.

736. Brown, Loren N. “The Dawes Commission.” Chronicles of Oklahoma 9 (March 1931): 71–105. The commission was given the task of inducing the Five Civilized Tribes to adopt allotment and give up their tribal government. The “obnoxious” 1897 Atoka agreement and the 1898 Curtis Act are analyzed.

732. Berthrong, Donald J. “Legacies of the Dawes Act: Bureaucrats and Land Thieves at the Cheyenne–Arapaho Agencies of Oklahoma.” Arizona and the West 21 (Winter 1979): 335–54.

737. Brown, Loren N. “Establishment of the Dawes Commission for Indian Territory.” Chronicles of Oklahoma 18 (June 1940): 171–81. 69

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Provides background on the process leading up to the 1893 creation of a commission to treat with the Five Civilized Tribes, and to get them to agree to land allotment and the dissolution of their separate governments. 738. Burns, Louis F. “Lu tsa ka Le Ah ke ho ‘Can’t Go Beyond’: Allotting the Osage Reservation, 1906–1909.” Chronicles of Oklahoma 72 (Summer 1994): 200–211. The tribe wished to avoid allotment in severalty, but after being shocked by the fraud experienced in the Cherokee allotment process, tribal members decided that it would be better to try to control the inevitable process and so wrote their own allotment act. This became the 1906 congressional version. The Osage experience with allotment proved less problematic than were other tribal experiences. 739. Camp, Gregory S. “Working Out Their Own Salvation: The Allotment of Land in Severalty and the Turtle Mountain Chippewa Band, 1870–1920.” American Indian Culture and Research Journal 14, no. 2 (1990): 19–38. Rather than taking allotments solely from tribal lands, many members of the Turtle Mountain band had to take allotments on the public domain, leading to the “de facto removal” and “scattering” of many tribal members to distant areas, including Montana and South Dakota. 740. Carlson, Leonard A. “Federal Policy and Indian Land: Economic Interests and the Sale of Indian Allotments.” Agricultural History 57 (January 1983): 33–45. The rise and fall of tribal land sales and removal of restrictions coincided with white land booms and busts. The remaining lands by 1934 were only suited for grazing or forestry. The Office of Indian Affairs removed land restrictions that encouraged more land sales. The opening of reservations to homesteading and selling of tribal lands was contrary to the reformers’ goals. 741. Carlson, Leonard A. Indians, Bureaucrats, and Land: The Dawes Act and the Decline of Indian Farming. Contributions in Economics and Economic History, no. 36. Westport, CT: Greenwood Press, 1981. Studies the crucial years from 1887 to 1934, discussing the implementation of the General Allotment Severalty Act and how it changed the lives of Native Americans living on western reservations. Despite the act’s humanitarian veneer, it became the foundation for the tremendous real estate transfers. The act was not passed to destroy tribal land bases, but outside interests shaped the opened-ended federal policy.

742. Carlson, Leonard A. “Land Allotment and the Decline of American Indian Farming.” Explorations in Economic History 18 (April 1981): 128–54. Tribal people were farming on reservations before allotment, but this promising start was destroyed by this “perverse” policy. Corporate models might have been better alternatives. 743. Carlson, Leonard A. “Learning to Farm: Indian Land Tenure and Farming before the Dawes Act.” In Property Rights and Indian Economies, edited by Terry L. Anderson, 67–83. Lanham, MD: Rowman and Littlefield Publishers Inc., 1992. Studies how pre-reservation land tenure affected allotment policy’s outcomes. Different tribes had different land tenure systems based on their specific resource constraints, and many were adaptable enough to allow successes as “small-scale subsistence farmers before formal allotment.” 744. Carter, Kent. “Snakes and Scribes: The Dawes Commission and the Enrollment of the Creeks.” Chronicles of Oklahoma 75 (Winter 1997–98): 384–413. Describes this difficult and conflictive process which met strong resistance from many Creeks, especially those full-bloods led by Chitto “Crazy Snake” Harjo. The Creeks were a particularly hard challenge for the commission because of the language barrier, name changes, and problems with records. Carter also focuses on the resulting tribal factionalism and the confusion caused by various parties acting on their unstated personal interests. Ironically some of the Creeks most resistant to allotment were allotted poor lands that later proved oil rich. 745. Chapman, Berlin B. “Cherokee Allotments in the Outlet.” Chronicles of Oklahoma 59 (Winter 1981–1982): 401–21. Surveys the events leading up to, and immediately following, the first issuance of a patent to a Cherokee in the Outlet in 1893. Subsequent allottees are listed by family and age. 746. Chapman, Berlin B. “The Cherokee Commission at Kickapoo Village.” Chronicles of Oklahoma 17 (March 1939): 62–74. Account of forced allotment against Kickapoo wishes and the 1895 opening of surplus reservation lands to white settlement. 747. Chapman, Berlin B. “The Dissolution of the Osage Reservation.” Chronicles of Oklahoma 20 (September 1942): 244–54; cont. 20 (December 1942): 375–87; cont. 21 (March 1943): 78–88; cont. 21 (June 1943): 171–82. Discusses dealings with the Cherokee and the Osage commissions, the removal of names from the

Land Allotment and Land Consolidation

tribal roll, and relations with local ranchers, all leading up to the Osage Allotment Act of 1906. The Osage reservation was the last of thirteen reservations in Oklahoma Territory to be dissolved through allotment. 748. Chapman, Berlin B. “Dissolution of the Wichita Reservation.” Chronicles of Oklahoma 22 (Summer 1944): 192–209; cont. 22 (Autumn 1944): 300–314. The tribe and affiliated bands received a reservation through an unratified agreement in 1872. The bitter allotment process and subsequent Court of Claims cases are described. Wichitas struggled to avoid land allotment, but Chapman considers the eventual fragmenting of the reservation to have been inevitable. 749. Chapman, Berlin B. “The Nemaha Half-Breed Reservation.” Nebraska History 38 (March 1957): 1–23. The federal government allotted lands in severalty to Indians on this reservation in southeast Nebraska. The reservation was created for mixed-blood members of various tribes after the Oto and other tribes agreed to it in 1830. The treaty authorized allotment. 750. Clow, Richmond L. “The Rosebud Tribe and the Creation of TLE, 1943–1955: A Case of Tribal Heirship Land Management.” In Trusteeship in Change: Toward Tribal Autonomy in Resource Management, edited by Richmond L. Clow and Imre Sutton, 145–64. Boulder: University Press of Colorado, 2001. Partitioned tribal allotments made Collier’s land rehabilitation programs difficult, because these fractionalized lands were not economically viable for grazing or farming. Many heirs sold these properties, thus reducing tribal lands, but the IRA prohibited land sales. The Rosebud tribal government created a Tribal Land Enterprise that operated like a corporation, using shares to purchase heirship lands in an attempt to consolidate these properties into economic units. 751. Coleman, Michael C. “Problematic Panacea: Presbyterian Missionaries and the Allotment of Indian Lands in the Late Nineteenth Century.” Pacific Historical Review 54 (May 1985): 143–59. Presbyterian attitudes toward allotment were ambivalent and varied. Even though most favored cultural assimilation, many were uneasy about allotment, fearing that it might lead to the premature dispossession of American Indian lands and could undermine the progress missionaries believed had been made. Many favored more gradual methods of encouraging Indian farming. 752. Cooper, Charles M. “The Big Pasture.” Chronicles of Oklahoma 35 (Summer 1957): 138–46. The Kiowa–Comanche–Apache lands were allotted between 1900 and 1910, and the tract was opened in

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1901 to non-Indian settlement. Prior to that time, the lands had been leased to Texas ranchers. A fold-out map is included. 753. Cotroneo, Ross. R. and Jack Dozier. “A Time of Disintegration: The Coeur d’Alene and the Dawes Act.” Western Historical Quarterly 5 (October 1974): 405–19. Documents the act’s impact on the Coeur d’Alene and Spokane tribes of northern Idaho. The act caused “the irrevocable loss of approximately 84 percent of the tribal holdings, a total economic and political destruction of the tribal entity, and an almost complete loss of individual initiative.” As landholdings declined, so did tribal solidarity, pride and social values. The Coeur d’Alene made an error in rejecting the IRA in 1934 that could have aided them. 754. Crow, Margaret. “Indian Law.” Golden Gate University Law Review 15 (Spring 1985): 251–62. The Ninth Circuit Court of Appeals decided Kirschlilng v. United States and Donovan v. Coeur D’Alene Tribal Farm. In the former case, the court ruled “that the General Allotment Act could not be interpreted to exempt proceeds [from a timber allotment sale] from gift taxation.” The latter applied OSHA to a tribal farm operation. 755. Dozier, Jack. “The Coeur d’Alene Land Rush, 1909–10.” Pacific Northwest Quarterly 53 (October 1962): 145–50. After Governor Stevens failed to deliver on his 1855 promise to meet with the tribe a second time, they waited until 1889 to receive a reservation. After 1905, the reservation was allotted and more than one-half of the tribal lands were thereafter occupied by white homesteaders. More land was later sold or leased. 756. Duncan, DeWitt Clinton. “An Open Letter from TooQua-Stee to Congressman Charles Curtis, 1898.” Chronicles of Oklahoma 47 (Autumn 1969): 298–304. Following a brief editor’s introduction, reprints a letter by Duncan, using a pen name, to Charles Curtis, criticizing certain provisions of the Curtis Act. 757. Dye, Karen. “Politics and Greed?: Allotments and Town Building Schemes in the Cherokee Outlet.” Chronicles of Oklahoma 73 (Fall 1995): 308–21. Seventy allotments awarded to Cherokees on the Outlet were instrumental in the development of town sites, and their location may have been an intentional part of town-building schemes. 758. Fletcher, Alice C. “Lands in Severalty to Indians: Illustrated by Experiences with the Omaha Tribe.” American Association for the Advancement of Science 33 (1885): 654–65.

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Since two-thirds of tribal people are engaged in farming, land tenure becomes an important issue for the future. Fletcher discusses past tribal agriculture, but focuses on the Omaha decision to seek title to individual lands as a means to prevent relocation. This was an important decision to promote community prosperity and stability on their ancestral lands. 759. Fontana, Bernard L. “Meanwhile, Back at the Rancheria.” Indian Historian 8 (Winter 1975): 13–18. Tohono O’odham (Papago) laws prohibit land from being an inheritable commodity, but the 1887 allotment act allotted the reservation and non-tribal heirship laws were imposed on these people. In 1957, the American Smelting and Refining Company obtained a mineral exploratory lease, thus forcing the debate over who owned which parcels of land. 760. Fredericks, John, III. “Indian Lands: Financing Indian Agriculture: Mortgaged Indian Lands and the Federal Trust Responsibility.” American Indian Law Review 14, no. 1 (1986): 105–34. The U.S. has a trust responsibility to protect land allotments from alienation. In 1956, Congress permitted allottees, or their heirs, to execute a mortgage against trust property with the Secretary of the Interior’s approval. In Montana and the Dakotas, these loans were for agricultural purposes and are in default. Though foreclosure places the land at risk, Mitchell II holds some hope for preventing alienation. 761. Gates. Merrill Edward. “Land and Law as Agents in Educating Indians.” Journal of Social Science 212 (September 1885): 133–44. A member of the U.S. Board of Indian Commissioners argues that tribalism must be destroyed to encourage the Indian family to move its support base from the tribe to the family. Tribal land encourages conflict, as outsiders covet Indian property. Land allotment, assimilation, education, and citizenship are the keys to their future. 762. Gates, Paul Wallace. “Indian Allotments Preceding the Dawes Act,” In The Frontier Challenge: Responses to the Trans-Mississippi West, edited by John G. Clark, 141–70. Lawrence: University Press of Kansas, 1971. Historians have neglected the fact that Indian allotments had been made as early as the colonial era, to the amount of 17 million patented acres. The Dawes Act failed because it did not assure “sympathetic, honest, and understanding administration.” 763. Gibson, Arrell Morgan. “The Centennial Legacy of the General Allotment Act.” Chronicles of Oklahoma 65 (Fall 1987): 228–51. The act disrupted Indian cultures, “created a Native American proletariat, and impoverished countless In-

dians.” It spawned “ethnic insurrection” and complex litigation over lands and resources. 764. Hagan, William T. “Private Property: The Indian’s Door to Civilization.” Ethnohistory 3 (Spring 1956): 126–37. Examines the Dawes Act and similarities between it and Senator Watkins’s solution to the Indian problem— give them their private property and disband reservation government. 765. Hagan, William T. Taking Indian Lands: The Cherokee (Jerome) Commission, 1889–1893. Norman: University of Oklahoma Press, 2003. The commission forced allotments and purchased fifteen million acres from tribes, thus making Oklahoma’s formation as a state possible, and with devastating results for the tribal members. This commission stands out in contrast to others given the extended length of its tenure and the large number of tribes with which it dealt. 766. Harmon, Alexandra. “American Indians and Land Monopolies in the Gilded Age.” Journal of American History 90 (June 2003): 106–33. By the late nineteenth century, the Five Civilized Tribes had large landed estates in their communities whose owners had emulated the Gilded Age’s symbol of success, while other tribes were losing their landed estates to allotment. The Five Civilized Tribes had negotiated the era’s emphasis on individualism. When they too had to deal with allotment, their responses varied from group to group. 767. Harper, Allan G. “Salvaging the Wreckage of Indian Land Allotment.” In The Changing Indian, edited by Oliver La Farge, 84–102. Norman: University of Oklahoma Press, 1942. The Acting Assistant Chief of the Indian Office’s Indian Resource Branch studies problems steming from allotment of the Lower Brulé Reservation. Harper stresses the necessity of continuing the purchase program and returning title to allotted range lands to the tribe, of agricultural credit, and of promoting tribal self-governance. 768. Hart, E. Richard. “The Dawes Act and the Permanency of Executive Order Reservations.” Western Legal History 12 (Winter/Spring 1999): 11–47. In the General Allotment Act, the president could establish permanent reservations with a consent provision for sale of unallotted lands, and as a result, “Congress recognized a tribal interest in the title to Indian reservations.” 769. Hauptman, Laurence M. “Senecas and Subdividers: Resistance to Allotment of Indian Lands in New York, 1875–1906.” Prologue 9 (Summer 1977): 106–16.

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Despite an 1848 republican form of government that created internal divisions, the Senecas overcame differences and worked with key non-Indian leaders to defeat congressional attempts to allot their lands.

Allotment Act and the Burke Act, but current landowners did not know that the patent in fee was tainted. Unknowing current landowners should not be liable for this problem.

770. Holford, David M. “The Subversion of the Indian Land Allotment System, 1887–1934.” Indian Historian 8 (Spring 1975): 11–21. Allotment policy was intended to foster tribal landholding practices. Instead, heirship problems and white citizens who became landowners stunted the policy.

776. Lahrman, Dolores M. and Ross S. Johnson. “A Delaware Indian’s Reservation: Samuel Cassman vs. Goldsmith C. Gilbert.” Indiana Magazine of History 71 (June 1975): 103–23. Discusses a dispute involving ownership of Cassman’s land alloted under the 1818 St. Mary’s treaty. He and his heirs disputed a sale to Gilbert and prevailed against “a land grabbing passion.”

771. Holm, Tom. “Indian Lobbyists: Cherokee Opposition to the Allotment of Tribal Lands.” American Indian Quarterly 5 (May 1979): 115–34. Bills to allot the tribal Cherokee lands flooded Congress from 1870–1880, and the Cherokee responded by sending lobbyists to oppose any division of tribal lands. The Cherokee successfully stopped allotment bills, until Congress passed the 1898 Curtis Act that extended the provisions of the 1887 General Allotment Act to Indian Territory. 772. “Indians–Indian Allottee Acquires Full Equitable Estate.” Michigan Law Review 19 (December 1920): 222–23. The South Dakota federal court decided in Highrock v. Gavin that the grantee received a fee patent to the allotment even though the individual was not an heir. 773. James, Elizabeth. “The Allotment Period on the Nez Percé Reservation: Encroachments, Obstacles, and Reactions.” Idaho Yesterdays 37 (Spring 1993): 11–23. Idealist Alice Fletcher, appointed in 1889 as a special agent to the Nez Percé reservation, tried to apply the Dawes Act for the benefit of the tribe, while other local non-Indians, particularly ranchers, exploited land allotment policy for their own gain. 774. Kelley, Klara, and Harris Francis. “Indian Giving: Allotments on the Arizona Navajo Railroad Frontier, 1904–1937.” American Indian Culture and Research Journal 25, no. 2 (2001): 63–91. Chronological analysis of the loss of Navajo lands through land allotment, and federal abrogation of those allotments to benefit railroad interests in New Mexico, and the resulting creation of the Chambers Checkerboard area. 775. LaFave, LeAnn Larson. “South Dakota’s Forced Fee Indian Land Claims: Will Landowners Be Liable for Government Wrongdoing?” South Dakota Law Review 30 (Winter 1984): 59–102. Under the Statute of Limitations, Section 2415, the BIA identified a number of forced fee patents that were issued to tribal members without their consent. These patents were issued in violation of the General

777. LaVelle, John P. “The General Allotment Act ‘Eligibility Hoax’: Distortions of Law, Policy, and History in Derogation of Indian Tribes.” Wicazo Sa Review 14 (Spring 1999): 251–302. Critiques an article entitled “Federal Indian Identification Policy: A Usurpation of Indigenous Sovereignty in Native North America” by M. Annette Jaimes. Ward Churchill may have had a hand in drafting the article. The Allotment Act contained no explicit requirement that allotees be “one-half or more Indian blood” as Jaimes contends. 778. Lawson, Michael L. “The Fractionated Estate: The Problem of American Indian Heirship.” South Dakota History 21 (Spring 1991): 1–42. The fractionalized estate of tribal heirs is getting worse as the land is further sub-divided, thus rendering the land unusable. Congress passed the Indian Land Consolidation Act, but the Supreme Court declared a portion unconstitutional, thus forcing the issue back to Congress for redress. 779. Lawson, Michael L. “Indian Heirship Lands: The Lake Traverse Experience.” South Dakota History 12 (Winter 1982): 213–31. Fractionalized allotments prevent tribes from making the best use of their lands. Lawson examines the forces working against one tribal community that is attempting to correct this problem. 780. Leeds, Stacy L. “The Burning of Blackacre: A Step Toward Reclaiming Tribal Property Law.” Kansas Journal of Law & Public Policy 10 (Spring 2001): 491–503. Fractionalized allotments create economic management problems, and also challenge tribal common law. Leeds argues that her “family’s approach to the allotted land is quite consistent with traditional Cherokee concepts of property.” 781. Leupp, Francis E. “Indian Lands: Their Administration with Reference to Present and Future Use.” Annals of the American Academy of Political and Social Science 33 (May 1909): 136–46.

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As former Commissioner of Indian Affairs, Leupp argues that the Department of the Interior should assume greater control of land allotment so that the best use can be made. There should be small acreages on irrigation projects and larger tracts for grazing. Cooperative agreements should be made with other federal agencies to end government duplication of services. 782. Lindo, Michelle M. “Youupee v. Babbitt—The Indian Land Inheritance Problem Revisited.” American Indian Law Review 22, no. 1 (1997–98): 223–46. Fractionalized heirship lands are a growing problem. Congress passed the 1983 Indian Land Consolidation Act that the Supreme Court found partially unconstitutional. Congress amended the act and Youpee was filed because the escheat (reversion of property back to state and in this case tribe) method remained unconstitutional, and the Supreme Court agreed. 783. Littlefield, Daniel F., Jr. “Utopian Dreams of the Cherokee Fullbloods, 1890–1934.” Journal of the West 10 (July 1971): 404–27. Spurred by the Curtis Act of 1898, which established land allotment among the Cherokee and promised to abolish their tribal government, Cherokee fullbloods looked for ways to regain their sovereignty elsewhere. Their hopes included purchasing land in Mexico, but their inability to raise capital from lands held in trust under allotment ensured that the many attempts had to be aborted. Another attempt to retain sovereignty was the failed attempt to create an Indian commonwealth within the Oklahoma territory. 784. Locklear, Arlinda. “The Allotment of the Oneida Reservation and Its Legal Ramifications.” In The Oneida Indian Experience: Two Perspectives, edited by Jack Campisi and Laurence M. Hauptman, 83–93. Syracuse, NY: Syracuse University Press, 1988. The President directed the allotment of the Oneida Reservation in Wisconsin in 1889 and by the mid1920s, all but a few hundred acres had passed into non-Indian possession. Present-day litigation is deciding whether the reservation will remain intact. It is in the best interests of the tribe and local governments to negotiate compromise and coexistence. 785. McChesney, Fred S. “Government as Definer of Property Rights: Indian Lands, Ethnic Externalities, and Bureaucratic Budgets.” Journal of Legal Studies 19 (June 1990): 297–335. Examines the importance of tribal land allotment. When the government defined a tribal property, it did not establish definitions to maximize wealth. Often, the result was a loss of property based on a poor government definition, thus creating a complex structure of property rights that only transferred

rights in equity to Native Americans. The benefits of privatization were lost. 786. McDonnell, Janet A. The Dispossession of the American Indian, 1887–1934. Bloomington: Indiana University Press, 1991. Any hopes that the Dawes Act’s original supporters had of promoting Indian civilization were overshadowed after the turn of the century by efforts to transfer Indian lands into white possession and increase the productivity of these lands. Congress facilitated these efforts by passing legislation allowing the lease and sale of lands originally deemed inalienable until expiration of the trust period. The issuance of fee patents proved disastrous for many Indians, who became increasingly dependent on the federal government. 787. McDonnell, Janet A. “Land Policy on the Omaha Reservation: Competency Commissions and Forced Fee Patents.” Nebraska History 63 (Fall 1982): 399–411. In 1910, Commissioner Valentine established a commission to grant fee patents to Indians residing on the Omaha Reservation who were deemed competent. It was meant to promote self-sufficiency but led instead to poverty and land loss. The commission’s issuing of fee patents to Indians who were not properly prepared was “unethical and illegal.” 788. McWhorter, Lucullus V. The Crime against the Yakimas. Copyright by the author, 1913. The 1855 Walla Walla Treaty created the Yakama Reservation. The 1906 Jones Act was the crime against the Yakama because it authorized, without tribal approval, the sale of sixty acres of each eightyacre allotment on the U.S. Reclamation Service constructed irrigation project. 789. Meserve, Charles Francis. “The First Allotment of Lands in Severalty among the Oklahoma Cheyenne and Arapahoe Indians.” Chronicles of Oklahoma 11 (December 1933): 1040–43. Reprint of a conference paper given by Meserve at the Lake Mohonk Conference in 1902. He argues, “the enactment of the ‘Land in Severalty’ Act, if wisely administered as in the Seger Colony, is anything but a failure.” 790. Meyer, Melissa L. “‘We Can Not Get a Living as We Used To’: Dispossession and the White Earth Anishinaabeg, 1889–1920.” American Historical Review, 96 (April 1991): 368–94. Immigrant Anishinaabeg kin and mixed-bloods found themselves on the White Earth Reservation attempting to make a living. The Nelson Act of 1889 was the economic death knell, opening the reservation

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to allotment, selling surplus lands, and removing the timber from tribal control to non-tribal interests.

dian Affairs Daniel Browning forced allotments on the tribe.

791. Miller, Margo S. Tribal Responses to Federal Land Consolidation Policy. Harvard Project on American Indian Economic Development, John F. Kennedy School of Government. Cambridge, MA: Harvard University, April 1988. Allotment created patches of different land status, thus creating economic difficulties for development and weakening tribal sovereignty. The Indian Land Consolidation Act tried to address the heirship problems, but few tribes took advantage of the act. Tribes should become active in land consolidation.

797. Royster, Judith V. “The Legacy of Allotment.” Arizona State Law Journal 27 (Spring 1995): 1–78. The solution to continuing legacies of nineteenthcentury allotment is “for the Court to recognize tribal territorial sovereignty.” Allotment’s time has come and gone, and courts must accept that truth. With the Montana decision over a decade old, it seems that neither Congress nor the courts are willing to address the importance of tribal sovereignty in a modern world.

792. Mohr, Mary Beth. “Tribal Property: The Iowa Restoration in Oklahoma—An Application of Celestine Through John.” American Indian Law Review 7, no. 2 (1979): 335–45. The Iowa tribe’s allotment act’s language is ambiguous and protects the reservation from disestablishment. 793. Moore, Junius B. “The Survey of Indian Territory.” Chronicles of Oklahoma 28 (Winter 1950–1951): 445–51. In 1894, the Dawes Commission began its work with a land survey conducted by U.S. geological engineers. Moore served in the effort and offers a memoir of the process, which he assesses positively. 794. Otis, Delos Sacket. The Dawes Act and the Allotment of Indian Lands. Edited and with an introduction by Francis Paul Prucha. Norman: University of Oklahoma Press, 1973. Prucha introduces this work, originally prepared in 1934, giving “an admirably balanced account” of the motivations behind and effects of the act up to 1900. 795. Poindexter, Mark D. “Of Dinosaurs and Indefinite Land Trusts: A Review of Individual American Indian Property Rights Amidst the Legacy of Allotment.” Boston College Third World Law Journal 14 (Winter 1994): 53–81. Cheyenne River Sioux leaders opposed outsiders digging on an allotment and selling Sue, a Tyrannosaurus rex. The district court’s decision that the excavation was illegal was based on government control of tribal property. Despite abandoning allotment policy, the residues of regulations continue to haunt tribal heirs and tribes. 796. “The Prairie Potawatomie Resistance to Allotment.” Indian Historian 9 (Winter 1976): 27–31. By 1893, the Prairie Potawatomie decided to fight allotment, even though an occasional member would take an allotment. Nevertheless, Commissioner of In-

798. Rubenstein, Bruce. “Justice Denied: Indian Land Frauds in Michigan, 1855–1900.” Old Northwest 2 (June 1976): 131–40. The Michigan settlers and politicians pushed Congress to open reservations to homesteading in 1855, but war forced delays until 1872, when Congress passed the Indian Homestead Act. All open land in the 1855 treaties would be available for settlement, and Indians would be classified as competent. Through private dealings and bribing land officers, whites obtained tribal lands, forcing cancellations of many Indian homesteads, but the Michigan State Supreme Court ruled the land deals valid. 799. Schmid, Suzanne S. “Escheat of Indian Land as a Fifth Amendment Taking in Hodel v. Irving: A New Approach to Inheritance.” University of Miami Law Review 43 (January 1989): 739–63. Discusses the problem of fractionalized land allotments and the 1983 Indian Land Consolidation Act where lands would return to the tribe and the heirs would receive no compensation. Tribal members from Pine Ridge claimed that section 207 violated their Fifth Amendment rights. Escheat was a practical measure to solve a major problem of land use, but it violated the heirs’ due process protections. 800. Seymour, Flora Warren. “Our Indian Land Policy.” Journal of Land and Public Utility Economics 2 (January 1926): 93–108. Discusses tribal concepts of landed property and federal Indian policies promoting agriculture, including land allotment. Land policy has not ensured that lands will remain in Indian hands nor eliminated traditional culture. Indian character, white land hunger and alternating policies are to blame for these failures. 801. Smith, Burton M. “The Politics of Allotment: The Flathead Indian Reservation as a Test Case.” Pacific Northwest Quarterly 70 (July 1979): 131–40. Allotment was applied to the reservation in 1904, and it was opened to white settlement in 1910. Local bills that applied allotment varied from the original federal intent of the Dawes Act. These bills differed in

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part because of the special concerns of whites in Missoula and Billings. Allotment was driven by nonIndian concerns and adversely affected Indians residing on the Flathead Reservation. 802. Snow, C. O. “History of the Half-Breed Tract.” Nebraska History Magazine 16 (January–March 1935): 36–48. A Nemaha County abstractor’s first-hand account of the allotment of these lands to mixed bloods. He finds that the allotments were sold by the title holders “at about the first opportunity.” 803. Stuart, Paul. “United States Indian Policy: From the Dawes Act to the American Indian Policy Review Commission.” Social Service Review 51 (September 1977): 451–63. Both the allotment policies and the IRA failed to achieve their goals because Congress did not provide adequate funding. The rising business corporation dominated the American economic landscape, not the farmer. This failure was crucial to the tribal members’ welfare. 804. Sutton, Imre. “Private Property among Reservation Indians in Southern California.” Yearbook of the Association of Pacific Coast Geographers 29 (1967): 69–89. Using the Mission communities of southern California, describes how allotted lands became unproductive with the passage of time. Federal leasing restrictions, partitioned lands, and litigation contributed to the lands’ lack of productivity. 805. Thompson, Elizabeth A. C. “Babbitt v. Youpee: Allotment and the Continuing Loss of Native American Property and Rights to Devise.” University of Hawai’i Law Review 19 (Spring 1997): 265–310. In Babbitt v. Youpee, the Supreme Court decided that the amended 1983 Land Consolidation Act was unconstitutional. The legislation attempted to solve problems related to heirship and fractionalized lands on allotted reservations. The case began on the Pine Ridge Reservation. 806. Unrau, William E. “Charles Curtis: The Politics of Allotment.” In Indian Lives: Essays on Nineteenth- and Twentieth-Century Native American Leaders, edited by L. G. Moses and Raymond Wilson, 113–37. Albuquerque: University of New Mexico Press, 1985 (second printing 1993). The author of the 1898 allotment bill that became the Curtis Act was affiliated with the Kaw and Osage tribes and was a “consummate politician.” He played his Indian identity to his political advantage and was a “progressive” who played a key role in the “efficient and untroublesome allotment of his own tribe.”

807. Washburn, Wilcomb E. The Assault on Indian Tribalism: The General Allotment Law (Dawes Act) of 1887. Philadelphia: J. B. Lippincott, 1975. Historical analysis of the options that legislators considered before compromising on the Dawes Act. The flow of the debate moved toward coercion. 808. Weil, Richard H. “Destroying a Homeland: White Earth, Minnesota.” American Indian Culture and Research Journal 13, no. 2 (1989): 69–95. Discusses the erosion of the White Earth Ojibwa reservation. Losses began with land allotment, which was applied to Minnesota by the Nelson Act of 1889. The tribe’s situation worsened because of extensive logging on their remaining lands, which had been made possible by an 1897 act, and the passage of the Clapp Amendments in the early 1900s. Such tensions exacerbated rifts between full-bloods and mixedbloods. The Ojibways sought redress. A 1974 state district court case (the Zay Zah decision) ended with the finding that the Wheeler–Howard Act had extended the trust period over White Earth allotments indefinitely. During the 1980s, congressional legislation also led to the return of some lost lands. 809. Welliver, Mark. “CP 87 and CP 100: Allotment and Fractionation within the Citizen Potawatomi Nation.” Tribal Law Journal 2 (2001–2002): online. http://tlj.unm.edu/articles/ The 1887 act created ongoing problems for the allottees and their heirs. The act’s requirement to divide the land equally between heirs created fractionalization, kept the land in trust under federal control, and made it hard for heirs to economically use the land. In 2000, Clinton signed the Indian Land Consolidation Act Amendments and one of the most important aspects of the legislation “restricts the ability of non-Indian heirs to become owners of interest” in allotted lands. 810. Williams, Ethel J. “Too Little Land, Too Many Heirs—The Indian Heirship Land Problem.” Washington Law Review 46 (July 1971): 709–44. Fractionalized allotments between the heirs have compounded tribal poverty. Senator Frank Church and George McGovern have introduced legislation that will potentially help resolve this problem. 811. Withington, W. R. “Land Titles in Oklahoma under the General Allotment Act.” Oklahoma Bar Journal 31 (December 1960): 2320–28. Only specific tribes in Indian Territory, later Oklahoma, came under the provisions of the General Allotment Act of 1887. Withington examines the law as applied to those specific tribes. 812. Worcester, Donald E. “The Sioux Land Grab.” In Forked Tongues and Broken Treaties, edited by Donald

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E. Worcester, 293–326. Caldwell, ID: Caxton Printers, 1975. Narrative account covering the period from 1878 to 1891 and including discussion of the Dawes Act. 813. Young, Mary E. “The Creek Frauds: A Study in Conscience and Corruption.” Mississippi Valley Historical Review 42 (December 1955): 411–37. Tribal land rights were often in conflict with American land speculation. The concept of individual land allotment was pushed as early as 1817 as a means to reduce this conflict and to open lands to speculators. In Alabama, the 1832 treaty with the Creeks opened the door to fraud, enabling speculators to gain control of tribal lands, including allotments. 814. Young, Mary E. Redskins, Ruffleshirts, and Rednecks: Indian Allotment in Alabama and Mississippi, 1830–1860. Norman: University of Oklahoma Press, 1961. The Jacksonians attempted to reconcile their greed for Indian lands with their image of themselves as humanitarians. Allotting portions of ceded lands and

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freeing other portions for settlement was a means to do so. A series of treaties, including one with Choctaws in 1830, Creeks in 1832, and Chickasaws in 1834, advanced this policy. This was the first major employment of U.S. allotment policy predating the Dawes Act. 815. YoungBear-Tibbetts, Holly. “Without Due Process: The Alienation of Individual Trust Allotments of the White Earth Anishinaabeg.” American Indian Culture and Research Journal 15, no. 2 (1991): 93–138. The 1978 Minnesota Chippewa tribe’s Section 2415 Land Research Project shed light on 1300 validated land title claims. The project also illuminated a number of illegal land uses and transfers, often with federal collusion, dating back to the 1905 allotment of tribal lands. Such injustices could have been avoided or mitigated had White Earth residents been accorded “equal protection before the law” when the claims were first heard in 1925. In claims cases, the defense had to prove adequate blood quantum.

Chapter 7 Twentieth-Century Federal Indian Policy

816. Barsh, Russel Lawrence. “The BIA Reorganization Follies of 1978: A Lesson in Bureaucratic SelfDefense.” American Indian Law Review 7, no. 1 (1979): 1–50. The BIA has 15,000 employees and a billion-dollar budget and is the regulatory agency in charge of 500,000 tribal people. If the Bureau were abolished and the money distributed to the tribal members, that would increase tribal per capita income by one-third. Citing duplication of services and conflicts of interest, Congress failed to thoroughly reorganize the agency in the 1970s.

Federal efforts to aid the Quechans (Yumas) of Arizona economically and socially have been uneven over time, and so too have been the results. The tribe has therefore engaged in a series of adaptive strategies. Discussion includes reservation establishment, allotment, the Indian New Deal, and recent land claims. 820. Bee, Robert L. “Riding the Paper Tiger.” In To Show Heart: Native American Self-Determination and Federal Indian Policy, 1960–1975, edited by George Pierre Castile, 139–64. Tucson: University of Arizona Press, 1998. Since 1960, there has not been an easily definable federal Indian policy. The two main contemporary concepts of tribal sovereignty and federal trust responsibility are contradictory.

817. Basinger, Douglas, Terry Anderson, Patty Marks, and Kerry Stoebner. “Review of Indian Legislation during the 95th Congress.” American Indian Journal of the Institute for the Development of Indian Law 4 (November 1978): 16–28. This Congress witnessed the work of the American Indian Policy Review Commission, passed the TribalState Compact Act of 1978, and amended the Indian Self-Determination Act.

821. Bradford, William. “‘With a Very Great Blame on Our Hearts’: Reparations, Reconciliation, and an American Indian Plea for Peace with Justice.” American Indian Law Review 27, no. 1 (2002–2003): 1–175. Book-length summary of injustices done to Native Americans that explains the difference between a reparations and reconciliation approach to righting past wrongs, and argues that reconciliation is the best course. The reconciliation approach includes supporting tribal self-determination, restoring lands, and legal reform.

818. Beatty, Donald R. History of the Legal Status of the American Indian with Particular Reference to California. San Francisco: R and E Research Associates, 1974. Reprinted thesis from 1957 studying the effects of various European and U.S. laws on American Indians. Past efforts to foster Indian integration and civilization have fallen short, but since the IRA, progress has been made. Indians theoretically have a more favorable legal status than do whites. Many California tribes favor termination, but only after financial problems are resolved.

822. Burt, Larry W. “Unlikely Activism: O. K. Armstrong and Federal Indian Policy in the Mid-Twentieth Century.” Missouri Historical Review 94 (July 2000): 415–33. As a Missouri General Assembly member and House Representative, Armstrong was heavily involved with Native issues. He was an assimilationist reformer who believed Indians should share the minority integration goals of the larger civil rights movement.

819. Bee, Robert L. Crosscurrents along the Colorado: The Impact of Government Policy on the Quechan Indians. Tucson: University of Arizona Press, 1981.

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823. Cadwalader, Sandra L. and Vine Deloria Jr., eds. The Aggressions of Civilization: Federal Indian Policy since the 1880s. Philadelphia: Temple University Press, 1984. Essays by various authors. Cadwalader stresses federal failures to establish a just Indian policy and tribal persistence despite efforts to assault their cultures and right to self-governance. Reformers and policymakers claiming to be reversing assimilation policy have applied Anglo-American concepts and institutions to Indian problems.

North American Indians, edited by John H. Moore, 270–87. Norman: University of Oklahoma Press, 1993. If one assumes that federal Indian policy has always been conceived to benefit the U.S. rather than the Indians, how does the U.S. benefit from policies conceived after most tribal resources had already been gained? Economic concerns are not driving contemporary policy. Instead, the federal government’s positive policies toward a small group serve to improve its image.

824. Caldwell, Russell L. “Is There an American Indian Policy?” Ethnohistory 3 (Spring 1956): 97–108. The lack of a policy toward tribal America gave the raiders of tribal lands the opportunity to get what they were seeking.

830. Chaudhuri, Joyotpaul. “American Indian Policy: An Overview.” In American Indian Policy in the Twentieth Century, edited by Vine Deloria, Jr., 15–33. Norman: University of Oklahoma Press, 1985. Indian law has shifted more than has law dealing with other minorities mainly because of its property dimension. Indian law at the judicial and legislative levels has been made with little systematic thought.

825. Cameron, Michael W. Goals, Institutions and the BIA: Problems with Federal Indian Policy. Harvard Project on American Indian Economic Development, John F. Kennedy School of Government, Cambridge, MA: Harvard University, October 1988. Tribal–U. S. conflict stems from ambiguous U.S. obligations and a poor institutional structure. Tribes need to increase their bargaining power and that may allow them to survive inconsistent policies. 826. Castile, George P. “Federal Indian Policy and the Sustained Enclave: An Anthropological Perspective.” Human Organization 33 (Fall 1974): 219–28. Recent shifts in federal Indian policy statements provide some idea as to potential new directions for reservation social change. OEO programs on reservations are opening the doors to greater tribal control and may help improve social stability. 827. Castile, George P. “The Headless Horseman: Recapitating the Beheaded Community.” Indian Historian 11 (Summer 1978): 38–45. Continued U.S. paternalism, despite the rhetoric of self-governance, requires that the federal government protect and guarantee tribal rights. The need to gain the consent of the Secretary of the Interior and BIA regulations hurt tribes. 828. Castile, George P. “Indian Sign: Hegemony and Symbolism in Federal Indian Policy.” In To Show Heart: Native American Self-Determination and Federal Indian Policy, 1960–1975, by George Pierre Castile, 165–86. Tucson: University of Arizona Press, 1998. Federal Indian policy since 1930 is characterized as “hegemonic utility,” which has tended to run against the current of broader federal policies dealing with ethnic matters. 829. Castile, George P. “Native North Americans and the National Question.” In The Political Economy of

831. Cohen, Felix S. “The Erosion of Indian Rights, 1950–1953: A Study in Bureaucracy.” Yale Law Journal 62 (February 1953): 348–90. The Indian Off respected tribal rights from 1930 to 1950, permitting elections for officers to run their own governments and improved services to tribal communities. When Dillon Myer became Commissioner, tribal rights eroded. The BIA is gaining more power at the expense of tribal peoples. 832. Collier, John. “The Indian Bureau and Self-Government: A Reply.” Applied Anthropology: Problems of Human Organization 8 (Summer 1949): 22–25. The former Commissioner of Indian Affairs responds to John Embee’s criticisms. Collier disagrees with Embee’s private land proposal, but in the area of heirship lands and regarding the Navajo, Embee’s arguments are valid. 833. Cook, Samuel R. “Ronald Reagan’s Indian Policy in Retrospect: Economic Crisis and Political Irony.” Policy Studies Journal 24, no. 1 (1996): 11–26. Reagan favored self-determination and new federalism, which translated into cuts at the federal level. He also pursued cuts in education, but sought legislation to enter into joint ventures and he signed the Tribal Government Tax Status Act of 1982, giving tribes the same tax status as states to encourage business. On some levels, tribal sovereignty was strengthened, as they had to seek inward strength to make it through these trying times. 834. Deloria, Vine, Jr., ed. American Indian Policy in the Twentieth Century. Norman: University of Oklahoma Press, 1985.

Twentieth Century Federal Indian Policy

Essays by various authors assume a topical approach. Deloria emphasizes the significance of lowlevel bureaucratic policy implementation. 835. Deloria, Vine, Jr. “‘Congress in Its Wisdom’: The Course of Indian Legislation.” In The Aggressions of Civilization: Federal Indian Policy since the 1880s, edited by Sandra L. Cadwalader and Vine Deloria Jr., 105–30. Philadelphia: Temple University Press, 1984. U.S. federal Indian policy has been erratic and committed to eliminating Indian cultural traits. Congressional interest in Indian policy has declined since the 1940s and no major changes are likely to occur this century. 836. Deer, Ada. “Tribal Sovereignty in the Twenty-first Century.” St. Thomas Law Review 10 (Fall 1997): 17–24. Complements the Clinton administration for making strides forward in strengthening tribal sovereignty. 837. Deloria, Vine, Jr. “The Evolution of Federal Indian Policy Making.” In American Indian Policy in the Twentieth Century, edited by Vine Deloria, Jr., 239–56. Norman: University of Oklahoma Press, 1985. There is no clearly defined Indian policy today, nor has there been since the termination era. Indian successes in this environment have been based on minority racial status, not domestic dependent nation status. 838. Deloria, Vine, Jr. “The Wisdom of Congress and other Folklore.” Oklahoma City University Law Review 23 (Spring and Summer 1998): 261–76. In the popular press, several phrases describe tribal rights, such as “wisdom of Congress,” which refers to Congress’s ability to do all that is right for Indians. But such phrases never appear in actual case law. 839. Embree, John F. “The Indian Bureau and Self-Government.” Applied Anthropology: Problems of Human Organization 8 (Spring 1949): 11–14. There are parallels to the Indian self-government problem wherever the U.S. goes. This is because of common management techniques for dependent peoples. Wardship status should be eliminated without the associated assimilation. 840. Frickey, Philip P. “Congressional Intent, Practical Reasoning, and the Dynamic Nature of Federal Indian Law.” California Law Review 78 (October 1990): 1137–1239. Many lawyers and courts have conceptualized the collective congressional body as having actual intent, but congressional intent is not the controlling force in federal Indian law. Tribal sovereignty, sovereign immunity, freedom from state regulation, treaty abrogation, and Congress’s plenary power all play roles. As

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the century ends, the Supreme Court has been writing disappointing opinions and is reluctant to address changing attitudes about tribal people that protect basic human rights. 841. Gates, Paul Wallace, ed. The Rape of Indian Lands. New York: Arno Press, Management of Public Lands in the United States Series, 1979. Essays by various authors dealing with federal Indian policy topics including, removal, allotment, and termination. 842. Glauner, Lindsay. “The Need for Accountability and Reparation: 1830–1976 the United States Government’s Role in the Promotion, Implementation, and Execution of Crimes of Genocide against Native Americans.” De Paul Law Review 51 (Spring 2002): 911–61. Chronicles American Indian policy and provides a short history of involuntary sterilization of Native women, education’s role in cultural destruction, and the effects of these policies on tribal communities today. Also examines reparations as one remedy for crimes of genocide. 843. Grinde, Donald A., Jr. “Politics and the American Indian Review Commission.” In New Directions in Federal Indian Policy: A Review of the American Indian Policy Review Commission, 19–28. American Indian Studies Center: University of California Press, 1979. Politics has disrupted review commission work, preventing necessary changes to improve tribal relations. There was no recommendation to have legislation sent to tribes before it was introduced in Congress. The commission also failed to set clear goals to oversee the Department of the Interior or other agencies that monitor tribal programs. 844. Hagan, William T. Theodore Roosevelt and Six Friends of the Indian. Norman: University of Oklahoma Press, 1997. Several of Roosevelt’s personal friends also served as advisors on Indian affairs. During his presidency, Lone Wolf and Quick Bear were decided, and the Navajo Reservation was extended. 845. Haines, Francis. “Problems of Indian Policy.” Pacific Northwest Quarterly, 41 (July 1950): 203–12. Considers how tribes in the Pacific Northwest were affected by Indian policies from the 1840s to 1930s. Confusion has resulted over the decades from conflicting schools of thought over whether to exterminate, assimilate, or promote cultural perseverance among Native Americans. 846. Haskew, Derek C. “Federal Consultation with Indian Tribes: The Foundation of Enlightened Policy Decisions,

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Or another Badge of Shame?” American Indian Law Review 24, no. 1 (1999–2000): 21–74. The addition of tribal consultation requirements in federal statutes and legislation is an encouraging trend. But how federal policy makers have defined the term “consultation” and what it means for tribes and federal agencies remains unclear. 847. Holm, Tom. The Great Confusion in Indian Affairs: Native Americans and Whites in the Progressive Era. Austin: University of Texas Press, 2005. American Indians held on to their sense of identity and, along with sympathetic non-Indians, successfully resisted federal assimilation policy. This was a period of confusion and ambiguity that gave way to a new Indian policy. 848. Hoxie, Frederick E. “The End of the Savage: Indian Policy in the United States Senate, 1880–1900.” Chronicles of Oklahoma 55 (Summer 1977): 157–79. Focuses on the U.S. Senate’s response to various interests in regards to Indian policy to illustrate that federal Indian policy fits into a larger American historical context. During this era, non-Indian policy stopped treating Native peoples in terms of exceptionalism. 849. Hoxie, Frederick. The Final Promise: The Campaign to Assimilate the Indian, 1880–1920. Lincoln: University of Nebraska Press, 1984. The Final Promise was to incorporate Indians into American society as full citizens with all the rights and privileges. After the initial campaign to assimilate Indians, a second effort considered them to be “backwards” people who could not assimilate and needed to be placed under guardianship without rights to their land. 850. Jaimes, M. Annette. “The Hollow Icon: An American Indian Analysis of the Kennedy Myth and Federal Indian Policy.” Wicazo Sa Review 6 (Spring 1990): 34–44. During the New Frontier years, latent termination, relocation and the emergence of self-determination, characterized Indian policy. 851. Jorgensen, Joseph G. “Federal Policies, American Indian Polities and the ‘New Federalism.’” American Indian Culture and Research Journal 10, no. 2 (1986): 1–13. Introduces a compilation of related essays that assess the consequences of the Reagan administration’s withdrawal of funds from self-determination programs. Many of the articles refute Wilcomb Washburn’s arguments that IRA governments were in line with tribal notions of governance.

852. Jorgensen, Joseph G. “Sovereignty and the Structure of Dependency at Northern Ute.” American Indian Culture and Research Journal 10, no. 2 (1986): 75–94. Self-determination legislation did not stimulate successful tribal economic development. Cuts in federal funding under Reagan revealed how tribal economies were “roller coasters” driven up and down by public funds. 1970s legislation had thus left tribes like the Northern Ute dependent on federal agencies and the public sector economy, with little control over their own resources. 853. Kelly, Lawrence C. “United States Indian Policies, 1900–1980.” In History of Indian–White Relations, volume 4, edited by Wilcomb E. Washburn, Handbook of North American Indians, general editor William C. Sturtevant, 66–80. Washington, DC: Smithsonian Institution, 1988. Overview dividing policies into three time periods: 1900–1921 focusing on forced assimilation; 1921–1947 the phasing out of assimilation and rise of cultural pluralism exemplified by the New Deal; and the post-1947 era in which proponents of assimilation and cultural pluralism initially vied for control of policy-making, until the latter position came to dominate in the late 1960s. 854. Kelly, William H. “Indian Adjustment and the History of Indian Affairs.” Arizona Law Review 10 (Winter 1968): 559–77. The IRA and termination laws were no more negative than other decisions that influenced control of a reservation and its resources. Kelly supports “The New Trail for Indians” that Commissioner of Indian Affairs Bennett and Secretary Udall outlined. 855. Kickingbird, Kirke. “Vanishing American—Vanishing Justice: Indian Policies on the Eve of the 21st Century.” Thomas M. Cooley Law Review 14, no. 3 (1997): 437–55. A historical overview of colonization and law. 856. Kinney, J. P. A Continent Lost—A Civilization Won: Indian Land Tenure in America. Baltimore: Johns Hopkins Press, 1937. History of federal Indian policy and land tenure. Critics of federal Indian policy have been too harsh as it has largely been directed toward advancing the Indian’s welfare. Policy has lacked consistency in part because the Indian Service has been the target of criticism and has faced uncertainty. Lands forfeited to non-Indians were justly paid for and the Indian Office is not to blame for lands lost through the relaxation of allotment policy’s restrictions, because the agency opposed those changes.

Twentieth Century Federal Indian Policy

857. Koppes, Clayton R. “From New Deal to Termination: Liberalism and Indian Policy, 1933–1955.” Pacific Historical Review 46 (November 1977): 543–66. Discusses reasons for Truman’s reversal of Roosevelt’s Indian policy. Changes in Indian policy paralleled the shift from the New Deal to Fair Deal. 858. Kotlowski, Dean J. “Limited Vision: Carl Albert, the Choctaws, and Native American Self-Determination.” American Indian Culture and Research Journal 26, no. 2 (2002): 17–44. With a political career spanning from 1947 to 1977, Democratic congressman Carl Albert exemplifies how some liberal politicians supported tribal constituents while holding a limited view of tribal self-determination. Albert is shown to have focused more on meeting his Native constituents’ demands than pushing for significant changes in federal Indian policies, and to have favored gradual Indian assimilation. 859. Lacy, Michael G. “A Model of Co-optation Applied to U.S. Government—American Indian Relations.” Social Science Journal 19 (July 1982): 23–36. Examines three co-optation examples, including the 1924 Citizenship Act, the IRA, and the National Council on Indian Opportunity. Tribal people benefited little from them, but they provided non-Indians a reason to defend tribal legitimacy among non-Indian populations. 860. Lacy, Michael G. “The United States and American Indians: Political Relations.” In American Indian Policy in the Twentieth Century, edited by Vine Deloria, Jr., 83–104. Norman: University of Oklahoma Press, 1985. Explores the model of co-optation wherein the dominant power “extends some form of political participation to actors who pose a threat.” The tactic may be employed to neutralize legal threats or gain legitimacy. Lacy highlights historic and contemporary examples of this model in U.S.–tribal relations, including the Citizenship Act, IRA, National Council on Indian Opportunity, and BIA preference policy. 861. Legters, Lyman, “The American Genocide.” Policy Studies Journal 16 (Summer 1988): 768–77. Overview of American efforts to eliminate Indians and Indian identity. Though never done like the Nazi efforts, the passive American approach still inflicted damage and scars. 862. Leonard, Deni. “New Tribal American Indian Federalism.” Akwe:kon Journal 9 (Winter 1992): 37–39. Legislative and political disenfranchisement hurt tribal communities. Congress should introduce a bill creating a new department solely for tribal issues.

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863. Lewis, Jim. “The Human Rights Doctrine Has Failed Natives.” Wassaja/Indian Historian 13 (November 1980): 13–14. President Carter was more oppressive than Jackson because he ignored the Delaware tribal government’s decisions. Carter claimed that the tribe had an inadequate government. 864. Lyden, Fremont J. and Lyman H. Legters, eds. Native Americans and Public Policy. Pittsburgh, PA: University of Pittsburgh Press, 1992. In their introduction to essays by various authors, the editors stress the importance of careful study in attempting to tackle the complicated task of establishing just policies. 865. McCarthy, Robert. “The Bureau of Indian Affairs and the Federal Trust Obligation to American Indians.” Brigham Young University Journal of Public Law 19, no. 1 (2004): 1–160. The BIA’s continued existence is an anomaly in the wake of Congress’s policy of self-determination. The National Congress of American Indians and tribal leaders support the agency because it is “emblematic of the federal government’s commitment to tribal sovereignty and the individual well-being of Native Americans.” 866. McNickle, D’Arcy. “Basis for a National Indian Policy.” American Indian 5, no. 1 (1949): 3–12. The federal government and BIA need to focus more on researching Native communities and conditions. The goals of ending the BIA and federal trust responsibilities should not be realized prematurely. 867. McQuire, Thomas R. “Federal Indian Policy: A Framework for Evaluation.” Human Organization 49 (Fall 1990): 206–16. The BIA needs to establish standards to evaluate programs on reservations for tribal members. Neither Congress, courts, nor the executive have clear policy statements. Three trends are necessary: greater tribal sovereignty, economic stability and growth, and cultural self-determination. 868. Morris, C. Patrick. “Termination by Accountants: The Reagan Indian Policy.” Policy Studies Journal 16 (Summer 1988): 731–50. Fewer tribal students are in higher education and budget cuts have devastated tribal communities, increasing unemployment and reducing services. 869. Nash, Philleo. “Twentieth-Century United States Government Agencies.” In History of Indian–White Relations, volume 4, edited by Wilcomb E. Washburn, Handbook of North American Indians, general editor

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William C. Sturtevant, 264–75. Washington, DC: Smithsonian Institution, 1988. Survey of changes in Indian administration and the federal administrative structure (including the BIA and IHS), with commentary on key legislation and litigation. 870. Newton, Nell Jessup. “Let a Thousand Policy-Flowers Bloom: Making Indian Policy in the Twenty-First Century.” Arkansas Law Review 46, no. 1 (1993): 25–75. Recent trends in Indian policy-making include the creation of a National Indian Policy Research Institute located at George Washington University in Washington, D.C. Despite creating a national center, Congress must deal with individual tribes on a case-by-case basis. 871. Nichols, Roger L. “Indians in the Post-Termination Era.” Storia Northamericana 5, no. 1 (1988): 71–87. Surveys significant changes in federal Indian policy, stressing that while there have been advances for Native communities, difficulties and unresolved issues remain. 872. Nickeson, Steve. “The Structure of the Bureau of Indian Affairs.” Law and Contemporary Problems 40 (Winter 1976): 61–76. Criticizes the BIA for ignoring tribal input and opposing tribal self-sufficiency. Nickeson stresses the importance of the Indian Policy Review Commission’s examination of the Bureau’s ongoing goals. 873. Parman, Donald. “A White Man’s Fight: The Crow Scandal, 1906–1913.” In The American West: Essays in Honor of W. Eugene Hollon, edited by Ronald Lora, 73–96. Toledo: University of Toledo, 1980. Journalist Helen Pierce Grey made allegations concerning improper land and grazing leases and accused agent S. G. Reynolds of arresting critics, thus sparking a public scandal. The scandal is illustrative of government failures to promote integration and Indian citizenship, and of its employees’ “immoral behavior.” 874. Philp, Kenneth R., “Introduction.” In Indian Self-Rule: First-hand Accounts of Indian–White Relations from Roosevelt to Reagan, edited by Kenneth R. Philp, 15–25. Salt Lake City, UT: Howe Brothers, 1986. Provides a federal policy overview in the introduction to this multi-authored volume. 875. Prucha, Francis Paul. “American Indian Policy in the Twentieth Century.” Western Historical Quarterly 15 (January 1984): 5–18. A presidential address to the Western History Association urging historians to devote more energy to twentieth-century American Indian topics. An expanding definition of federal trust responsibility potentially conflicts with tribal efforts toward self-determination.

876. Prucha, Francis Paul. “America’s Indians and the Federal Government, 1900 to 2000.” Wisconsin Magazine of History 84 (Winter 2000–2001): 24–37. Examines assimilation policy and the later move toward self-determination. The paradox still exists that it is necessary to preserve the BIA to protect tribal trust status as tribes move toward greater home rule. 877. Prucha, Francis Paul. “The Board of Indian Commissioners and the Delegates of the Five Tribes.” Chronicles of Oklahoma 56 (Fall 1978): 247–64. Tribal delegates saw in the new BIC, a quasi-federal advisory committee to the Office of Indian Affairs, a potential ally in their struggle to fend off territorial organization. They thus maintained a conspicuous presence at BIC meetings and spoke of their common desire to pursue civilization. The Board moved away from tribal interests and favored territorial organization and allotment. The delegates were unable to sway the Board. 878. Prucha, Francis Paul. Documents of United States Indian Policy, 3rd ed. Lincoln: University of Nebraska Press, 2000. Originally published in 1975, this new edition reproduces 238 documents reflecting America’s relationship with tribal America. The first document is from 1783 and the last is the 2000 list of federally recognized tribes. 879. Prucha, Francis Paul. The Great Father: The United States Government and the American Indians. Lincoln: University of Nebraska Press, 1984, 2 vols. This is the standard, widely used and influential, multi-volume chronology of the history of U.S. Indian policy, from the American Revolution to 1980. It has also been printed as a single unabridged volume and a shorter abridged version. The central theme of American Indian policy is continuity based on the concept of paternalism. 880. Prucha, Francis Paul. The Indians in American Society: From the Revolutionary War to the Present. Berkeley: University of California Press, 1985. Short collection of public lectures drawing from themes presented in The Great Father, especially the importance of paternalism. 881. Ragsdale, John W., Jr. “The Movement to Assimilate the American Indians: A Jurisprudential Study.” UMKC Law Review 57 (Spring 1989): 399–436. Discusses the reason for the rise and the fall of assimilation policy. The IRA played the greatest role in reversing assimilation. 882. Roback, Jennifer. “Exchange, Sovereignty, and Indian–Anglo Relations.” In Property Rights and In-

Twentieth Century Federal Indian Policy

dian Economies, edited by Terry L. Anderson, 5–26. Lanham, MD: Rowman and Littlefield, 1992. Surveys Indian–white historical relations from a contract theory and property rights perspective. White settlers violated treaties because they had different interests than the U.S. leadership. Allotment policy failed because it ignored Native American social structures. 883. Shifter, Richard. “Trends in Federal Indian Administration.” South Dakota Law Review 15 (Winter 1970): 1–21. Discusses the decline of BIA powers after its duties were transferred to other agencies, the importance of the Area Redevelopment Administration programs, and tribal opposition to the BIA’s dismemberment. 884. Slagle, Al Logan. “The American Indian Policy Review Commission: Repercussions and Aftermath.” New Directions in Federal Indian Policy: A Review of the American Indian Policy Review Commission, 115–32. Los Angeles, CA: American Indian Studies Center, University of California Press, 1979. The review commission never had strong support. Early supporters became disillusioned with the tone and direction. When the commission finished its work, Congress and tribes had moved in new directions and the mood of the few supporters had even changed. States wanted to abrogate treaties, environmentalists were fighting tribes, and the Supreme Court had ruled on Oliphant. 885. Stefon, Frederick J. “Significance of the Meriam Report of 1928.” Indian Historian 8 (September 1975): 2–7, 46. The Meriam Report recommended many changes and once Commissioner of Indian Affairs Charles Rhoads received the document, he began to implement them. The report made an impact on future federal tribal legislation, including the IRA. 886. Taylor, Theodore W. American Indian Policy. Mt. Airy, MD: Lomond Publications, 1983. A general survey and reference book concerning recent federal and state Indian programs and involved interest groups, as well as commentary on the Indian policy process. Taylor begins with historical and current case studies illustrating conflict, including Alaska Native and Maine claims, activism, sacred sites controversies and fishing rights disputes. Agency descriptions include the BIA, HUD, IHS, Department of Justice, and other institutions involved in Indian services. Specific Indian interest groups and state organizations are also detailed. 887. Thompson, Mark. “Nurturing the Forked Tree: Conception and Formation of the American Indian Policy

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Commission.” In New Directions in Federal Indian Policy: A Review of the American Indian Policy Review Commission, 5–18. American Indian Studies Center: University of California Press, 1979. Senator James Abourezk and Lloyd Meeds were the congressional forces behind the review commission. Vine Deloria and other tribal leaders supported this review as well. When Congress created the commission, tribal leaders were appointed, but since the selections were made in executive session behind closed doors, the National Tribal Chairman’s Association filed suit. 888. Tullberg, Steve. “Carter, Indian Sovereignty and the Supreme Court: New Twists and Doubletalk?” American Indian Journal of the Institute for the Development of Indian Law, 4 (March 1978): 40–42. The Carter administration opposed the Santa Clara Pueblo in Santa Clara Pueblo v. Martinez. This was not the proper position if the administration was also going to defend tribal self-determination. 889. Turner, Charles C. The Politics of Minor Concerns: American Indian Policy and Congressional Dynamics. Lanham, MD: University Press of America, 2005. Examines roll call votes, committee decisions, and the passage of bills. Among the conclusions are that it is not appropriate to use generalized legislative models to examine Indian legislation; existing scholarship on American Indian politics is inadequate; party affiliation is a primary determinant of how a legislator will vote on Indian bills; and congressional treatment of Indian policy fluctuates over time. 890. Tyler, S. Lyman. Indian Affairs: A Study of the Changes in Policy of the United States Toward Indians. Provo, UT: Institute of American Indian Studies, Brigham Young University, 1964. Discusses the basic ideas and guiding principles behind policy from 1929 to 1961, with special focus on the Secretary of the Interior’s 1961 Task Force Report on Indian Affairs. 891. Washburn, Wilcomb E. The American Indian and the United States: A Documentary History, four volumes. New York: Random House, 1973. Collection of U.S. government-related documents and treaties. The first volume and part of the second are composed of reports of the Commissioners of Indian Affairs. The second also includes congressional debates. The third includes federal acts and the fourth is composed of treaties and key legal decisions. 892. Washburn, Wilcomb E., volume editor. History of Indian White Relations, volume 4, William C. Sturtevant general editor, Handbook of North American Indians. Washington, DC: Smithsonian Institution, 1988.

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Essays by various authors providing overviews of federal Indian policies, military affairs, and political, economic, religious, and conceptual relations. 893. Washburn, Wilcomb E. “Indian Policy since the 1880s.” In The Aggressions of Civilization: Federal Indian Policy since the 1880s, edited by Sandra L. Cadwalader and Vine Deloria Jr., 45–57. Philadelphia: Temple University Press, 1984. Stresses the surprising contrast between assimilation policies and ideology at the beginning of this time span with the demonstrations of tribal autonomy and pride in recent decades.

894. Wunder, John R. “‘Merciless Indian Savages’ and the Declaration of Independence: Native Americans Translate the Ecunnaunuxulgee Document.” American Indian Law Review 25, no. 1 (2000–2001): 65–92. American Indians have translated the Declaration’s language three ways: “as a document of colonialism in the century of its creation; as a document used as a basis for assimilation and the forced alteration of nineteenth-century cultures; and as a twentiethcentury document turned on its head in the fight for the restoration of Native sovereignty.” What the document has meant depends on who is reading it and how it has been used.

Chapter 8 Indian New Deal

Collier’s policies are discussed, including an examination of his bill for reorganization of tribal governments.

895. Barerra, Richard. Constitutional Reform for the San Carlos Apache Tribe, a Report to the Apache Tribe of San Carlos, Arizona. Harvard Project on American Indian Economic Development, John F. Kennedy School of Government, Cambridge, MA: Harvard University, May 1989. Despite its economic development goals, the tribe’s IRA has established a mandatory federal government supervisory role, which has holes for political abuse and discourages good leadership. A government focused on the people will involve the people and focus on their needs, but the current constitution prevents the tribe from reaching this potential.

899. Berkey, Curtis. “The Legislative History of the Indian Reorganization Act.” American Indian Journal of the Institute for the Development of Indian Law 2 (July 1976): 15–22. Discusses congressional amendments to the IRA and includes a section-by-section analysis. 900. Berryhill, Peggy. “Hopi Potskwaniat: The Hopi Pathway to the Future.” Native Americas 15 (Spring 1998): 30–39. Current IRA chairman Wayne Taylor wants the government to work with the communities and to not impose an unwanted system on the villages. This is becoming more difficult as the outside world moves closer to Hopi.

896. Berkey, Curtis. “Federal Administrative Power and Tribal Sovereignty.” American Indian Journal of the Institute for the Development of Indian Law 2 (June 1976): 12–15. For decades, Congress passed laws giving power over tribal lands and funds to the Executive Department. IRA constitutions provide for secretary and superintendent approval, thus inhibiting tribal development. The BIA and courts have many powers over tribal governance.

901. Biolsi, Thomas. “The IRA and the Politics of Acculturation: The Sioux Case.” American Anthropologist 87 (September 1985): 656–59. Disagrees with past scholars’ assessments of the IRA, claiming that there was subtle political involvement by the agency superintendents at Pine Ridge and Rosebud.

897. Berkey, Curtis. “Implementation of the Indian Reorganization Act.” American Indian Journal of the Institute for the Development of Indian Law 2 (August 1976): 2–7. The IRA’s success depended on local Indian Office employees’ willingness to follow the law and the accompanying administrative procedures. The Act’s effects varied according to local conditions. Tribal hostility toward the act culminated in a failed effort to repeal it.

902. Biolsi, Thomas. Organizing the Lakota: The Political Economy of the New Deal on the Pine Ridge and Rosebud Reservations. Tucson: University of Arizona Press, 1992. The IRA did not grant self-rule. Instead, the Office of Indian Affairs remained in power and directed selfrule. This created an imbalance of power between tribal leaders and the federal government. 903. Brown, Ray A. “The United States of America’s New Departure in Dealing with Its Native American Population.” Journal of Comparative Legislation and International Law 18 (February 1936): 29–32.

898. Berkey, Curtis. “John Collier and the Indian Reorganization Act.” American Indian Journal of the Institute for the Development of Indian Law 2 (July 1976): 2–7. 87

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Until recently, the U.S. wanted to assimilate Indians, but the IRA changed this policy. Strides were made under Hoover. Efforts were made to give tribes a great measure of self-rule. 904. Buffalohead, W. Roger. “Self-Rule in the Past and the Future: An Overview.” In Indian Self-Rule: First Hand Accounts of Indian–White Relations from Roosevelt to Reagan, edited by Kenneth R. Philp, 265–77. Salt Lake City, UT: Howe Brothers, 1986. Overview serving as an introduction to multiauthored discussions, offering background on the IRA, and discussing contemporary views of self-determination policy. 905. Cash, Joseph H. and Herbert T. Hoover. “The Indian New Deal and the Years that Followed: Three Interviews.” In The Plains Indians of the Twentieth Century, edited by Peter Iverson 107–32. Norman: University of Oklahoma Press, 1985. Transcribed interviews with Ben Reifel, Antoine Roubideaux, and Alfred DuBray which demonstrate differing Indian opinions about the Indian New Deal. 906. Clark, Carter Blue. “The New Deal for Indians.” In Between Two Worlds: The Survival of Twentieth Century Indians, edited by Arrell Morgan Gibson, 72–83. Oklahoma City, OK: Oklahoma City Historical Society, 1986. Studies the IRA and the subsequent Oklahoma Indian Welfare Act, which applied much of the act’s provisions to the Native people of that state. The IRA and OIWA helped tribes in many ways, but these pieces of legislation still encouraged assimilation through BIAwritten constitutions and corporate organization. 907. Clemmer, Richard O. “Hopis, Western Shoshones, and Southern Utes: Three Different Responses to the Indian Reorganization Act of 1934.” American Indian Culture and Research Journal 10, no. 2 (1986): 15–40. The IRA’s implementation varied significantly among these three tribes, and it was only practical for the Southern Ute. None of these tribes needed the IRA to prevent their dissolution as cultural entities because they were in no such danger before its application. In general, the IRA did not reverse federal Indian policy. While it reversed allotment policy for the Southern Ute, it did not for the other two communities. Nor among the Hopi or Western Shoshone did the act promote tribal solidarity. It instead encouraged capitalism and accelerated modernizing trends. 908. Clow, Richmond L. “The Indian Reorganization Act and the Loss of Tribal Sovereignty: Constitutions on the Rosebud and Pine Ridge Reservations.” Great Plains Quarterly 7 (Spring 1987): 125–34.

Some tribes had begun implementing forms of constitutional government prior to the IRA, as had the Brulé and Oglala Sioux between 1916 and 1933. These constitutional governments provided more tribal autonomy than did the IRA constitutions, which included limiting clauses. 909. Collier, John. “Collier Replies to Mekeel.” American Anthropologist 46 (July–September 1944): 422–26. Rebukes Mekeel’s comment that those tribes who benefited the most from the IRA were nearly assimilated and that the acculturated mixed bloods benefited from the IRA. The Jicarilla Apache have benefited greatly from the IRA and the tribal people worked as a group. Collier does agree with Mekeel’s claim that the IRA voting procedure “was entirely too hurried and forced,” even though the law determined the voting timetable. 910. Collier, John. From Every Zenith: A Memoir and Some Essays on Life and Thought. Denver, CO: Sage Books Co., 1963. Personal memoir including discussion of Collier’s early life as a reformer and thoughts on the Indian New Deal and the IRA. He stresses the importance of community as a guiding principle. He devotes a chapter to discussing Navajo achievements and criticizing the tribal council’s proscribing of the NAC. 911. Collier, John. Indians of the Americas: The Long Hope. New York: New American Library, 1947. Idealizes American Indians as possessing “that passion and reverence for human personality and for the web of life and the earth” which the world has lost. Collier describes his personal experiences and philosophies concerning Indians; surveys Indian history with an emphasis on conquest, perseverance and adaptability; and discusses the Indian New Deal, soil conservation efforts, and experiences with the Navajos. 912. Daily, David W. Battle for the BIA: G. E. E. Lindquist and the Missionary Crusade against John Collier. Tucson: University of Arizona Press, 2004. As Collier began to take on a leadership role in the 1920s Indian crusade, he became the reservation Protestant missionaries’ enemy. As a result, the Home Missions Council of the Federal Council of Churches lobbied against Collier’s reforms, especially the IRA. 913. Deloria, Vine, Jr. The Indian Reorganization Act: Congress and Bills. Norman: University of Oklahoma Press, 2002. Early in the twentieth century, Congress began to consider ways to reform tribal policy and greater home rule was the path. Collier had to sell his bill to the tribal communities, since it was an enabling act. Doc-

Indian New Deal

uments in this volume include the minutes of Indian congresses held across the nation and the IRA bill and law. 914. Dobyns, Henry F. “The Indian Reorganization Act and Federal Withdrawal.” Applied Anthropology: Problems of Human Organization 7 (Spring 1948): 35–44. Despite passage of the IRA, the Navajo Nation, a non-IRA tribe, is moving forward toward self-rule under its own inherent powers. The IRA produced tribal politicians instead of self-governing nations. 915. Downes, Randolph C. “A Crusade for Indian Reform, 1922–1934.” Mississippi Valley Historical Review 32 (December 1945): 331–54. The IRA of 1934 was the culmination of Congress’s efforts to stop a generation of land loss. It reversed the 1887 General Allotment Act and its rugged frontier ideals. 916. Ducheneaux, Frank. “The Indian Reorganization Act and the Cheyenne River Sioux.” American Indian Journal of the Institute for the Development of Indian Law 2 (August 1976): 8–14. A former tribal chairmen and a participant in the IRA discusses the role of the Indian Office, the lack of tribal members’ knowledge of their nation’s sovereign rights, and weaknesses of the IRA on his reservation. 917. Furber, Bradley B. “Two Promises, Two Propositions: The Wheeler–Howard Act as a Reconciliation of the Indian Law Civil War.” University of Puget Sound Law Review 14 (Winter 1991): 211–82. The first promise the U.S. made to tribal governments was the right of self-rule that it subsequently broke; the second promise made to non-Indians was to assimilate quickly tribal Americans after abrogating treaty promises. The tension between these two promises contributed to the current conflict over the extent of tribal governments’ authority over nonmembers. The IRA was the reconciliation between these two promises and would have worked had the original bill been enacted. 918. Green, Elizabeth. “Indian Minorities under the American New Deal.” Pacific Affairs 8 (December 1935): 420–27. The hard-nosed bureaucratic approach to operating tribal affairs has changed because of Roosevelt’s decision to appoint Collier as CIA and his support for passage of the IRA. Green envisions a new policy freeing the Native Americans from moral, political, and economic wardship. Success or failure rests with the tribesmen themselves. 919. Haas, Theodore H. and John E. Jay. “Toward Effective Tribal Government.” American Indian 6 (Summer 1951): 17–25.

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The authors defend the 180 (approximate) IRA constitutions as providing security to tribal reservation governments. On the other hand, the IRA has missed its lofty goals. A unified government was alien to many; a gap existed between constitutions and customs and imposed alien concepts; there was a meagerness of enumerated powers; there are unwieldy amendment processes; there is an inability to hold leaders to the constitutions except through removal during elections; and legal limitations restrict the tribal constitutions. 920. Harlan, E. R. “Mesquakie Indians and the Wheeler– Howard Bill.” Annals of Iowa 20 (July 1936): 381–84. Proponents of the bill should explain it to all tribal voters clearly and use the Mesquakie language in doing so. 921. Hauptman, Laurence M. The Iroquois and the New Deal. Syracuse, NY: Syracuse University Press, 1981. The New Deal created political divisions among the Iroquois. Despite the arbitrary nature of the IRA, tribal arts and culture flourished, making the IRA a more positive influence than a negative one in tribal life. 922. Hauptman, Laurence M. “The Indian Reorganization Act.” In The Aggressions of Civilization: Federal Indian Policy since the 1880s, edited by Sandra L. Cadwalader and Vine Deloria, Jr., 131–48. Philadelphia: Temple University Press, 1984. Surveys historical interpretations of the IRA and argues that many have ignored the fact that the IRA was largely an administrative reorganization that was ironically placed in the hands of the bureau most involved in the mismanagement and policy failures. The IRA was a flawed piece of legislation that “was not designed to recognize tribal sovereignty, nor did its operations encourage it.” 923. Her Many Horses, Danielle. “Oglala Lakota Nation Profile.” Tribal Law Journal 2 (2001–2002): online. http://tlj.unm.edu/articles/ The tiospaye is the foundation of the Lakota family and of pre-reservation Lakota governance and jurisprudence. The development of a written IRA constitution was one instrument that changed the tribe’s fundamental law and removed traditional law and associated institutions. The IRA council is the supreme governing body and there are no checks or balances against the council from either the executive or the courts. The IRA constitution provides district governments to handle local issues. 924. Joranko, Timothy W. and Mark C. Van Norman. “Indian Self-Determination at Bay: Secretarial Authority to Disapprove Tribal Constitutional Amendments.” Gonzaga Law Review 29, no. 1 (1993/94): 81–104.

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Despite the IRA’s rhetoric of tribal home rule, the IRA tribal constitutions contained clauses requiring Secretary of the Interior approval before some tribal ordinances could go into effect. The constitutions also required superintendent approvals in some areas. In 1986, the Coyote Valley Band of Pomo sued the U.S. because the secretary would not approve constitutional elections. In 1988, Congress amended the IRA to diminish secretarial authority. 925. Kelly, Lawrence C. The Assault on Assimilation: John Collier and the Origins of Indian Policy Reform. Albuquerque: University of New Mexico Press, 1983. Studies Collier and the intellectual and philosophical foundations that he used to formulate his New Deal for American Indians. There were many influential people in Collier’s life, but Harold Ickes was one of the most important. 926. Kelly, Lawrence C. “The Indian Reorganization Act: The Dream and the Reality.” Pacific Historical Review 44 (August 1975): 291–312. Points out Collier’s failure to achieve his goals through the IRA, a failure that was ignored in past scholarship because many of the authors were Collier’s personal friends. Kelly credits Collier for his vision, but blames him for failing politically. He is criticized for denying divergent Indian opinions and refusing to accept the limitations placed on the final version of the act. Not all of the blame rests with Collier as his task was made more difficult by western Congressmen who were generally opposed to his vision. 927. Kelly, Lawrence C. The Navajo Indians and Federal Indian Policy, 1900–1953. Tucson: University of Arizona Press, 1983. The era of 1913 to 1935 was pivotal in the tribe’s development as members moved toward tribal unity. Navajo life was not only affected by federal policy, but also Navajo reactions helped shape the larger federal policy. During the New Deal years, the livestock reduction program left Navajos embittered and so they rejected the IRA and Collier’s tribal self-government plans. Discussion also includes efforts to expand the land base and oil development. 928. Kelly, William H., ed. Indian Affairs and the Indian Reorganization Act: The Twenty Year Record. Tucson: University of Arizona Press, 1954. Presentations from a symposium held to discuss the of the IRA’s success. The participants included John Collier, Allen G. Harper, Theodore H. Haas, Clarence Wesley, Joseph R. Garry, and Clyde Kluckhohn. 929. Kersey, Harry A., Jr. The Florida Seminoles and the New Deal: 1933–1942. Boca Raton: Florida Atlantic University Press, 1989.

The New Deal benefited the Seminoles, but did not receive their IRA constitution and corporate charter until 1957. New Deal programs helped them find security, remain in their enclaves, build their cattle economy, move toward self-determination, and prepare for events to come. 930. Kickingbird, Lynn. “Attitudes toward the Indian Reorganization Bill.” American Indian Journal of the Institute for the Development of Indian Law 2 (July 1976): 8–14. John Collier believed he had a reasonable bill for tribal policy reform, but opposition forced him to hold regional conferences and campaign hard. Tribal and non-Indian opposition to the bill are discussed. 931. Krieger, Heinrich. “Principles of the Indian Law and the Act of June 18, 1934.” George Washington Law Review 3 (March 1935): 279–308. The IRA has created an opportunity to re-examine tribal law and tribal relations with the U.S., especially in light of emancipating tribes from federal control. The act is extra-constitutional and must be regarded as racial in nature. 932. La Farge, Oliver, ed. The Changing Indian. Norman: University of Oklahoma Press, 1942. John Collier provides the introduction to this collection of essays by various authors commenting on contemporary Indian status, the problems they face in the future, and the effects of Indian policies. Collier stresses the importance of the IRA and other recent policies in promoting Indian democracy and their connection with the land. Yet Indians face great obstacles, and their fate parallels the Western world’s fate. 933. Lemont, Eric. “Developing Effective Processes of American Indian Constitutional and Governmental Reform: Lessons from the Cherokee Nation of Oklahoma, Hualapai Nation, Navajo Nation, and Northern Cheyenne Tribe.” American Indian Law Review 26, no. 2 (2001–2002): 147–76. IRA constitutions are boilerplate documents that often conflict with tribal traditional governance and thus have weakened tribal government stability. Tribes face significant obstacles in effectively reforming these constitutions. Some tribes have shown how these obstacles can be overcome by relying on tribal institutions and civic education. 934. McNickle, D’Arcy. “The Indian New Deal as Mirror of the Future.” In Political Organization of Native North Americans, Ernest L. Schusky, ed., 107–19. Washington, DC: University Press of America, 1980. The IRA did not free tribal members from federal wardship when the legislation was enacted, but the law opened the door for a better future. Instead of forc-

Indian New Deal

ing tribal members to cling to the past, the IRA permitted Native Americans to move forward. 935. McNickle, D’Arcy. Native American Tribalism: Indian Survivals and Renewals. New York: Oxford University Press, 1973. Short, often revised, book telling the story of tribal America, sometimes with comparisons to Canadian policy. McNickle was one of Collier’s right hand men working to push the IRA in Indian Country, and he defended the New Deal and its goals. 936. McNickle, D’Arcy. They Came Here First: The Epic of the American Indian. Rev. ed. New York: Harper and Row, 1975; first published Philadelphia: J. B. Lippincot Co., 1949. A general historical survey ending with discussion of the IRA. McNickle refers to the act as “the first action by white men in the New World to govern for the benefit of the Indian people.” 937. Mekeel, Scudder. “An Appraisal of the Indian Reorganization Act.” American Anthropologist, New Series, 46, no. 2 (1944): 209–17. Because of Collier’s strong supporters, critics of the IRA and other New Deal policies were few. As a former member of the Anthropology Unit, the author presents the negative aspects of the IRA. The IRA constitutions are foreign instruments to tribal members, especially the Pueblo, and the field staff was not prepared for such an undertaking. There needs to be a review of administrative procedures. 938. O’Neil, Floyd A. “The Indian New Deal: An Overview.” In Indian Self-Rule: First Hand Accounts of Indian–White Relations from Roosevelt to Reagan, edited by Kenneth R. Philp, 30–46. Salt Lake City: Howe Brothers, 1986. Surveys the IRA and Collier’s role as commissioner, and includes O’Neill’s personal recollections. Scholarly critics have often been unfairly harsh in assessing the IRA. 939. Pacheco, Michael M. “Toward a Truer Sense of Sovereignty: Fiduciary Duty in Indian Corporations.” South Dakota Law Review 39, no. 1 (1994): 49–92. Explores the ethical and legal choices that tribal corporate leaders must make. It was decades after the IRA’s passage that tribal governments began to develop medium-to-large corporations and joined the corporate world. 940. Parman, Donald. The Navajos and the New Deal. New Haven, CT: Yale University Press, 1976. The Navajos initially viewed John Collier’s New Deal as a “big giveaway.” Programs, such as the Civilian Conservation Corps, offered aid and employment without asking for sacrifices in return. However, Col-

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lier’s commitment to livestock reduction turned the Navajos against the government and led them to distrust him. He recognized that the Navajo reservation was overgrazed and saw the necessities for stock reduction, but was forced to choose between this program and his goal to restore a sovereign tribal government. He chose the former and crippled his chances to achieve the latter. Collier further lost Navajo trust when he failed to secure passage of the New Mexico Boundary Bill. The book also provides an account of Collier’s implementation of, and tribal resistance to, reform in the Navajo school system. 941. Peterson, Helen L. “American Indian Political Participation.” Annals of the American Academy of Political and Social Science 311 (May 1957): 116–26. The right of tribal self-governance still exists in principle, but was ignored for decades until the passage of the IRA which was intended to restore tribal self-rule. As a result of the IRA and WWII, tribal participation in the local and national political process is increasing. 942. Philp, Kenneth R. John Collier’s Crusade for Indian Reform, 1920–1954. Tucson: University of Arizona Press, 1977. Study of John Collier’s career as a reformer beginning with his work in ethnic relations in Progressive Era New York City and his efforts to find alternatives to a materialistic society as well as to Social Darwinism. As commissioner, his IRA grew from this stress on cultural pluralism. His efforts led to successes, but his idealism also led to failures in relations with Native Americans. The IRA affected tribes positively in numerous ways, but was flawed and unable to aid all tribes. 943. Philp, Kenneth R. “Turmoil at Big Cypress: Seminole Deer and the Florida Tick.” Florida Historical Quarterly 56 (1955): 28–44. Very few Seminoles approved the IRA and they refused to adopt a constitution or charter. When the deer tick epidemic broke, Collier’s hope for cooperation between the U.S.D.A. and the Department of Interior failed. 944. Phinney, Archie M. “Numipu among the White Settlers.” Wicazo Sa Review 17 (Spring 2002): 21–42. Edited version of an article that may have been written in 1936 or 1937. The article discusses the tribe’s history and contemporary situation, with special emphasis on the IRA. The proposed reforms were aimed at “arousing Indians from their morbid lethargy.” 945. Pollack, Floyd A. A Navajo Confrontation and Crisis. Tsalie: Navajo Community College Press, 1984.

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Traces the historic relations between the Navajos and the U.S. during the New Deal. The Navajo government moved toward greater home rule on the reservation and had to create a reservation law and order system, extending their tribal sovereignty. 946. Robbins, Lynn Arnold. “Upper Skagit (Washington) and Gambell (Alaska) Indian Reorganization Act Governments: Struggles with Constraints, Restraints and Power.” American Indian Culture and Research Journal 10, no. 2 (1986): 61–73. Case studies are used to refute Wilcomb Washburn’s “simplistic and misleading interpretations of IRA governments and demonstrate the dominant influence exercised over tribal affairs by federal policies.” 947. Rosier, Paul C. “‘The Old System Is No Success’: The Blackfeet Nation’s Decision to Adopt the Indian Reorganization Act of 1934.” American Indian Culture and Research Journal 23, no. 1 (1999): 1–37. The Blackfeet Nation’s decision to adopt the IRA resulted from a process that was more interactive than coercive, was a collective decision, and was based on the tribe’s belief that the IRA fit their reform agenda and their desire for greater economic and political selfdetermination. Rosier traces the evolution of Blackfeet politics leading up to the IRA, including discussions of Blackfeet responses to land allotment and oil development. 948. Rusco, Elmer R. “Civil Liberties Guarantees under Tribal Law: A Survey of Civil Rights Provisions in Tribal Constitutions.” American Indian Law Review, 14, no. 2 (1986): 269–99. Despite the boilerplate nature of the IRA constitutions, civil liberties were dealt with in different ways in different constitutions. Some provided for civil liberties and others were silent. First Amendment protection is the most commonly stated civil liberty, followed by guarantees of equality, property rights protection, and due process. There is no uniform pattern of civil rights in the 220 constitutions. Rights of non-Indians are a concern.

edited by Eric D. Lemont, 49–82. Austin: University of Texas Press, 2006. The IRA constitutions’ failings were not the result of their being “model” constitutions intended to force tribal assimilation. The IRA intended instead to promote true self-governance. It did not intend to force any organizational structure. The constitutional failings resulted from implementation problems and it is still too early to judge the IRA’s full effect on tribal governance. 951. Sady, Rachel Reese. “The Menominee: Transition from Trusteeship.” Applied Anthropology: Problems of Human Organization 6 (Spring 1947): 1–14. The Menominee were pushing toward self-rule when the IRA was passed. They initially supported a charter, but dropped that idea due to a fear of outside taxation. They believed they would lose more on their own than as wards of the government. 952. Savagian, John. “The Tribal Reorganization of the Stockbridge-Munsee: Essential Conditions in the ReCreation of a Native American Community, 1930–1942.” Wisconsin Magazine of History 77 (Autumn 1993): 39–62. A small group of tribal leaders remained dedicated to reconnecting with their past, and John Collier’s efforts to push tribal reorganization became the leading factor in their revival. Federal New Deal programs provided the tribe with marginal lands to begin rebuilding a land base and the reservation CCC programs provided work. 953. Smith, Michael T. “The Wheeler-Howard Act of 1934: The Indian New Deal.” Journal of the West 10 (July 1971): 521–70. The Indian New Deal was largely successful, encouraging self-government, improvements in conservation and education, and cultural revitalization.

949. Rusco, Elmer R. A Fateful Time: The Background and Legislative History of the Indian Reorganization Act. Reno and Las Vegas: University of Nevada Press, 2000. In seeking to fill a void in the IRA literature, this study examines the pre-IRA period to illuminate its legislative background. A consensus had been reached in the late 1920s to change Indian policy, but there was no agreement about a direction.

954. Stefon, Frederick J. “The Indian Zarathustra: An Investigation into the Philosophical Roots of John Collier’s New Deal Educational and Administrative Policies (Part 1).” Journal of Ethnic Studies 11 (Fall 1984): 1–28; cont. 11 (Winter 1984): 29–45. Collier became a follower of John Dewey, learned the scientific method, and devoted his life to social service working with New York City’s poor. He became cynical about western life and its solitary focus on the individual. He studied education and he discovered the “personality forming communal institutions of the Pueblo Indians.” He tried to implement these ideas as commissioner.

950. Rusco, Elmer. “The Indian Reorganization Act and Indian Self-Government.” In American Indian Constitutional Reform and the Rebuilding of Native Nations,

955. Taylor, Graham D. “Anthropologists, Reformers, and the Indian New Deal.” Prologue 7 (Fall 1975): 151–62.

Indian New Deal

John Collier brought social scientists into the Office of Indian Affairs as policy makers. Some of these social scientists were committed to reform and others focused on academic theories and standards. 956. Taylor, Graham D. The New Deal and American Indian Tribalism: The Administration of the Indian Reorganization Act, 1934–1945. Lincoln: University of Nebraska Press, 1980. The Indian New Deal was internally weakened by overly optimistic claims of tribal restoration that diminished efforts to create economically self-supporting communities. 957. Taylor, Graham D. “The Tribal Alternative to Bureaucracy: The Indian’s New Deal, 1933–1945.” Journal of the West 13 (January 1974): 128–42. The Indian New Deal was flawed by a lack of understanding of differing concepts of community on various reservations. Assimilation policies left many Native communities unprepared to manage their resources effectively and to take full advantage of New Deal opportunities. 958. Tollefson, Kenneth D. and Martin L. Abbott. “Tribal Estates: A Comparative and Case Study.” Ethnology 35 (Fall 1996): 321–39. Case study of Tulalip, an IRA community, the Tlingit and Haida, who lost their civil rights and regained them, and the Duwamish of Oregon who opposed the IRA. The common themes among these three communities are that there is more individual participation in the process when the input has more meaning, delays in reaching goals reduce political participation, and tribal estates continue through kinship ties. 959. “Tribal-Self Government and the Indian Reorganization Act of 1934.” Michigan Law Review 70 (April 1972): 955–86. Considers post-IRA tribal government activities, including drafting legal codes and obtaining charters. Tribal communities are likely to expand their selfgovernance. 960. Tsuk, Dalia. “The New Deal Origins of American Legal Pluralism.” Florida State University Law Review 29 (Fall 2001): 189–268. Federal Policy at the turn of the twentieth century sought assimilation, but Felix Cohen’s employment by the Department of Interior as chief legal counsel brought a new focus on pluralism. Cohen assisted in drafting the IRA, writing the Handbook of Federal Indian Law, and pushing for the ICC. Tsuk places Cohen and his work in the context of national pluralism. He crafted three pluralistic models: socialism (IRA), systematic intellectualism (Handbook of Federal Indian Law), and comparative pluralism (ICC).

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961. Tsuk, Dalia, “Pluralism: The Indian New Deal as a Model.” Margins 1, no. 2 (2001): 393–449. The Indian New Deal was one of several social experiments that shifted the federal policy emphasis from assimilating Native Americans to creating a pluralistic state. The story focuses on Felix Cohen who viewed the IRA and the ICC as two examples of pluralistic experiments. Cohen “naively viewed federal law as a tool for remedying collective trauma” inflicted on tribal America. 962. Tullberg, Steven. “The Creation and Decline of the Hopi Tribal Council.” In Rethinking Indian Law, 29–41. New York: National Lawyers Guild, Committee on Native American Struggles, 1982. The referendum through which the Hopis voted in favor of the Hopi Constitution under the IRA and thus established the Hopi Tribal Council was “a mockery of democracy.” This government went against Hopi tradition and soon declined. 963. Upchurch, O. C. “The Swinomish People and Their State.” Pacific Northwest Quarterly 27 (1936): 283–310. The tribe has decided to establish a corporate form of government under the IRA which “makes possible the interpretation of some of their more easily discoverable cultural traits, sanctions, or taboos, in terms of codified law.” This may “make easy and comfortable the adjustment of individual behavior to the community expectations as expressed in law.” The new government will lead to social and economic progress. 964. Useem, Ruth Hill and Carl K. Eicher. “Rosebud Reservation Economy.” In The Modern Sioux: Social Systems and Reservation Culture, edited by Ethel Nurge, 3–34. Lincoln: University of Nebraska Press, 1975. The IRA was better suited to the Southwest where there was less friction between mixed- and fullbloods. Economically, the IRA increased full-blood dependency on the U.S., made each American a “specialized citizen,” and pushed the mixed-bloods into the modern world. Despite out-migration to find jobs, the economic results were poor. 965. Washburn, Wilcomb E. “A Fifty-Year Perspective on the Indian Reorganization Act.” American Anthropologist 86 (June 1984): 279–89. Defends the IRA and John Collier’s work to implement the act’s provisions on reservations. Tribal governments might not exist today if the IRA had not been passed. 966. Weeks, Charles J. “The Eastern Cherokee and the New Deal.” North Carolina Historical Review 53 (Summer 1976): 303–19.

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The Qualla reservation serves as a case study to explore the New Deal’s effects at the local level. The Eastern Band accepted the IRA in late 1934, but it led to “no profound changes” socially or economically. Mixed-bloods living on lands surrounding the reservation tended to resist the reforms, preferring instead that Collier push for assimilation. Their resistance limited the New Deal’s effects on Qualla. 967. Willard, William. “The Plumed Serpent and the Red Atlantis.” Wicazo Sa Review 4 (Fall 1988): 17–30. American Indian policy in the 1930s was based on John Collier’s observations of tribal peoples during the previous decade. Mable Dodge Luhan influenced

Collier’s learning from her home at the edge of Taos Pueblo. 968. Wright, Peter M. “John Collier and the Oklahoma Indian Welfare Act of 1936.” Chronicles of Oklahoma 50 (Autumn 1972): 347–71. In spite of good intentions and his efforts to consult tribes, Oklahoma Indians, including Creek Joseph Bruner, were suspicious of the IRA and were reluctant to approve any new federal policies. Wright details Collier’s ongoing efforts to meet his goals for these tribes, and Indian reactions to the later act introduced as the Thomas-Rogers bill. The author considers the 1936 act to have been a ray of hope and a source for tribal regeneration.

Chapter 9 Sovereign Status, Termination, and Recognition

969. Ames, David W. and Burton R. Fisher. “The Menominee Termination Crisis: Barriers in the Way of a Rapid Cultural Transition.” Human Organization 18 (Fall 1959): 101–11. Menominee termination was driven by their forest resources, not by any concern for the human needs. As a result, business structures were discussed, but critical issues such as tribal fears about land loss, the bankruptcy of the mill, lack of confidence in their leadership, and timing were overlooked.

termination program and the Menominee’s successful restoration effort. 973. Binney, Allison. “Dilemmas of Federal Recognition: Reforming the BIA Process.” Native Americas 19 (Spring/Summer 2002): 24–27. One of the biggest problems in determining federal recognition as a tribe is the definition of a standard of proof. Taking this petition and recognition process out of the BIA could be the first reform. 974. Bishop, Kathleen and Kenneth C. Hansen. “The Landless Tribes of Western Washington.” American Indian Journal of the Institute for the Development of Indian Law 4 (May 1978): 20–31. Denying tribes a trust land base denies them federal recognition and disqualifies them from receiving federal services. Many recognized tribes oppose the nonrecognized tribes regaining their political status.

970. Anderson, Terry. “Federal Recognition: The Vicious Myth.” American Indian Journal of the Institute for the Development of Indian Law 4 (May 1978): 7–19. There are over 100,000 tribal members from unrecognized tribes for whom termination is the basis for withholding federal services. Only 289 tribes of over 400 receive BIA assistance. The two statutes providing for tribal assistance make no reference to recognized or non-recognized tribes.

975. Bransky, James A. “The Political Status of Indian Tribes in Michigan.” Michigan Bar Journal 65 (May 1986): 444–50. Discusses the recognized tribes in Michigan and the recently acknowledged tribes that successfully completed the acknowledgment process. These tribes’ governmental structures are considered.

971. Barnett, Milton L. and David A. Baerreis. “Some Problems Involved in the Changing Status of the American Indian.” In The Indian in Modern America, edited by David A. Baerreis, 50–70. Madison: State Historical Society of Wisconsin, 1956. Indian integration will not be accomplished through legislation alone but must rely on American society accepting them as equal citizens. It must also be remembered that not all reservation populations are the same.

976. Brophy, William and Sophie Aberle. The Indian: America’s Unfinished Business. Norman: University of Oklahoma Press, 1966. Report of the Commission on the Rights, Liberties, and Responsibilities of the American Indian, with the intent of illuminating Indian issues as they move toward full citizenship. The report provides a historical survey and discusses the status of tribal governments, criminal justice, economic development, health, education and the BIA. Kinds of termination are discussed with examples provided, including the Paiute, Klamath, and Menominee terminations. The report recommends that

972. Beck, David R. M. The Struggle for Self-Determination: History of the Menominee Indians since 1854. Lincoln: University of Nebraska Press, 2005. Account of the tribe’s political and economic struggles to wrest control of their affairs from federal officials bent on defining the Menominee future in nontribal ways. Includes discussion of the federal

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termination proceed only after all involved parties are educated about the likely consequences and after time has been allowed to address legal, political, and social problems. 977. Burt, Larry W. Tribalism in Crisis: Federal Indian Policy, 1953–1961. Albuquerque: University of New Mexico Press, 1982. Provides both the humane arguments for termination and the inhumane results at Menominee, and discusses the near termination of the Salish and Kootenai living on the Flathead Reservation. The BIA was forced to follow the policy’s ideologies. 978. Campisi, Jack. “The New England Tribes and Their Quest for Justice.” In The Pequots in Southern New England: The Fall and Rise of an American Indian Nation, edited by Laurence M. Hauptman and James D. Wherry, 179–93. Norman: University of Oklahoma Press, 1990. Describes how the Gay Head Wampanoag, Houlton Band of Maliseet, Mashantucket Pequot, Passamaquoddy, Penobscot, and Narragansett tribes gained federal recognition during the 1970s and 1980s. Tribes have received little assistance from the BIA in resolving claims and seeking federal acknowledgment, and non-recognized tribes are facing an increasingly uphill climb. 979. Campisi, Jack. “Reflections on the Last Quarter Century of Tribal Recognition.” New England Law Review 37, no. 3 (2002–2003): 505–15. In 1978, with amendments in 1994, the Department of the Interior established criteria for acknowledging non-recognized tribes. The problems that have accompanied the acknowledgment process stem from the vague regulations. These problems can be corrected through the creation of a special commission. 980. Coen, Barbara N. “Tribal Status Decision Making: A Federal Perspective on Acknowledgment.” New England Law Review 37, no. 3 (2002–2003): 491–504. The Branch of Acknowledgment and Research was created to process non-recognized tribal petitions. This process follows an established set of procedures. 981. Cook, Samuel R. “The Monacan Indian Nation: Asserting Tribal Sovereignty in the Absence of Federal Recognition.” Wicazo Sa Review 17 (Spring 2002): 91–116. The Monacan tribe has made great strides in past decades in revitalizing their culture and asserting sovereignty in Virginia. They have also led local tribes in efforts to change state policies and win federal recognition. 982. Cramer, Renée Ann. Cash, Color, and Colonialism: The Politics of Tribal Acknowledgment. Norman: University of Oklahoma Press, 2005.

The Branch of Federal Acknowledgment has a checkered past. Recognized tribes oppose it and nonrecognized tribes support its mission, but often oppose its decisions. Race and dependency complicate the process. Gaming has changed the public’s view of acknowledgment forever. 983. Cypress, Billie. “Preserving Our Seminole Heritage: The Mission of the Ah-Tah-Thi-Ki Museum.” St. Thomas Law Review 14 (Winter 2001): 341–46. The Seminole Tribe chartered a museum in 1989. The tribe’s elders have taken a hard-line position defending tribal culture, thus making their museum a place to learn. 984. Dahl, Kathleen A. “The Battle over Termination on the Colville Indian Reservation.” American Indian Culture and Research Journal 18, no. 1 (1994): 29–53. Beginning in 1956, the Colville Confederated Tribes were pressured to plan for termination. The ensuing debate divided them into several factions, but the tribes eventually rejected the policy. The internal battle is shown to have been based largely on economic and cultural conflict. 985. Debo, Angie. “Termination and the Oklahoma Indians.” American Indian 7 (Spring 1955): 17–23. Tribal affairs in Oklahoma were mostly terminated through tribal dissolution and individual citizenship at the time of statehood. Traces the federal effort to assist tribes in Oklahoma through the passage of welfare legislation and leasing regulations as well as supporting the reconstruction of tribal governments. 986. Delorme, David P. “Emancipation of the Turtle Mountain Chippewas.” American Indian 7 (Spring 1954): 11–20. The community’s large mixed-blood population has falsely led some to assume that the tribe should be terminated. The lack of reservation industries, deteriorating family conditions, and the lack of preparedness make the tribe a poor candidate for termination. 987. Dempsey, Sharon. “To Be Known for Whom We Are: Federal Recognition under the Bush Administration.” Native Americas 20 (Fall 2003): 16–25. The Branch of Acknowledgment and Recognition has followed rules and regulations that often make it difficult for tribes to obtain recognition. The Lumbee have the support of Senator Elizabeth Dole to gain their recognition through congressional legislation and bypass the BIA. 988. Downs, Ernest C. “The Struggle of the Louisiana Tunica Indians for Recognition.” In Southeastern Indians since the Removal Era, edited by Walter L. Williams, 72–89. Athens: University of Georgia Press, 1979.

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History of Tunica–white relations, ending with brief discussion of their ongoing efforts to gain federal recognition. 989. Drinnon, E. E. Richard. Keeper of Concentration Camps: Dillon S. Meyer and American Racism. Berkeley: University of California Press, 1987. Focuses on Meyer and American racism in Japanese relocation and Indian termination. He was an “Indianhater” who “was simply the carrier and instrument of the traditional hostility of white America” to Indian cultural survival. 990. Duthu, Bruce and Hilde Ojibway. “Future Lights or Feu Follet? Louisiana Indians and Federal Recognition.” Southern Exposure 13, no. 6 (1985): 24–32. In 1977, the BIA began the process to acknowledge tribes that had no legal relationship with the U.S. Three requirements must be met in the tribe’s petition process for recognition: historical identification, habitation in a specific area, and tribal authority over members. The Houma have begun this petition work, but find it insulting to do so.

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995. Felsenthal, Steven A. and Joseph F. Preloznik. “The Menominee Struggle to Maintain Their Tribal Assets and Protect Their Treaty Rights Following Termination.” North Dakota Law Review 51 (Fall 1974): 53–71. Overview of Menominee termination and restoration dealing with not only the problems related to tax burdens that were imposed on tribal assets, but also the moral destruction of the Menominee people and their identity crisis after termination. 996. Fey, Harold E. and D’Arcy McNickle. Indians and Other Americans: Two Ways of Life Meet. New York: Harper and Brothers, 1959. Liquidating Indian reservations “means making ‘first-class citizens’ of the Indians by first impoverishing them, then disclaiming any further responsibility for them.” The Klamath termination is considered in detail, the NCAI is discussed, and recommendations made for improving the relocation program.

991. Edgerton, Robert B. “Menominee Termination: Observations on the End of a Tribe.” Human Organization 21 (Spring 1962): 10–16. Discusses the various tribal responses to termination. Many did not understand what was happening and became anti-white or opposed their tribal leadership.

997. Field, Les. “Complications and Collaborations: Anthropologists and the ‘Unacknowledged Tribes’ of California.” Current Anthropology 40, no. 2 (1999): 193–209. Examines contemporary relationships between anthropologists and California’s unrecognized tribes. These two groups collaborate in developing language and cultural retention programs and working toward federal recognition.

992. Emerson, Haven. “Freedom or Exploitation! Is Mr. O. J. K. Armstrong’s Recent Solution of the American Indian Sound?” American Indian 2 (Fall 1945): 3–7. Armstrong wrote an essay in Reader’s Digest arguing that Indians will never be free unless they are independent. If Armstrong’s position becomes policy, independence would deny them aid they need. The cry of setting them free has always resulted in a reduction of the tribal estate.

998. Field, Les. “Unacknowledged Tribes, Dangerous Knowledge: The Muwekma Ohlone and How Indian Identities Are ‘Known.’” Wicazo Sa Review 18 (Fall 2003): 79–94. Field, a cultural anthropologist, attempts to assist the San Francisco Bay Area tribe in gaining federal recognition, whereas earlier generations of anthropologist had a hand in legitimizing their disenfranchisement.

993. Fadden, Stephen. “Massachusetts—Gay Head Wampanoags Denied Federal Status.” Northeast Indian Quarterly 3 (Autumn 1986): 13–14. The Gay Head Wampanoags were denied their federal recognition petition on the grounds that their governing councils had existed intermittently, not continuously.

999. Field, Les, Alan Leventhal, Dolores Sanchez, and Rosemary Cambra. “A Contemporary Ohlone Tribal Revitalization Movement: A Perspective from the Muwekma Costanoan/Ohlone Indians of the San Francisco Bay Area.” California History 71 (Fall 1992): 412–31. This history is written to assist Muwekma Ohlone efforts to revitalize tribal history to help achieve tribal recognition. Muwekma families maintained their connections and undertook a revitalization effort, in spite of the loss of their land base. The 1964 California Indian Claims Settlement played a key role in this process.

994. Fairbanks, Robert Alvin. “A Discussion of the NationState Status of American Indian Tribes: A Case Study of the Cheyenne Nation.” American Indian Journal of the Institute for the Development of Indian Law 3 (October 1977): 2–24. The Cheyenne Nation possesses the attributes of a nation governing territory, a population, and a viable government.

1000. Finger, John. “Termination and the Eastern Band of Cherokees.” American Indian Quarterly 15 (Spring 1991): 153–70.

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Documents the successful efforts of the North Carolina Cherokees to avoid termination. Finger links their success to a variety of factors, including the fact that both the Cherokees and certain local non-Indian groups saw the maintenance of a strong Cherokee identity as crucial to the tribe’s role in local tourism. 1001. Fixico, Donald L. Termination and Relocation: Federal Indian Policy 1945–1960. Albuquerque: University of New Mexico Press, 1986. Termination policy intended to assimilate American Indians. Once this goal had been achieved, federal services to Native Americans would end. Relocation complimented termination policy. Although damaging to Native communities and cultures, these policies failed to assimilate American Indians. 1002. French, Katherine and David French. “The Warm Springs Indian Community: Will It Be Destroyed?” American Indian 7 (Spring 1955): 3–17. Forced assimilation is a form of racial discrimination. It is not reasonable to pursue dissolution of a Warm Springs community that is self-governing and working to solve its own problems. 1003. Greenbaum, Susan. “In Search of Lost Tribes: Anthropology and the Federal Acknowledgment Process.” Human Organization 44 (Winter 1985): 361–67. Congress passed legislation permitting non-recognized tribes to prepare a petition that would be sent to the BIA for potential acknowledgment. This cumbersome process began in 1978. Greater involvement in the process by anthropologists would help the procedure. 1004. Grobsmith, Elizabeth S. and Beth R. Ritter. “The Ponca Tribe of Nebraska: The Process of Restoration of a Federally Terminated Tribe.” Human Organization 51 (Spring 1992): 1–16. Congress terminated the Ponca in 1962. In 1990, they were restored by congressional legislation. 1005. Gunter, Dan. “The Technology of Tribalism: The Lemhi Indians, Federal Recognition, and the Creation of Tribal Identity.” Idaho Law Review 35, no. 1 (1998): 85–123. The Lemhi Shoshone have faced difficulty gaining federal recognition. The specific element approach should be rejected in favor of a multifactor approach where evidence could be extensive. 1006. Hart, E. Richard. “Federal Recognition of Native American Tribes: The Case of California’s Amah Mutsun.” Western Legal History 16 (Winter/Spring 2003): 39–84. The Amah Mutsun lived in Mission San Juan Bautista, but they were never assigned a reservation

by the U.S., and now must go though the long federal acknowledgment process. 1007. Hauptman, Laurence M. “Learning the Lessons of History: The Oneidas of Wisconsin Reject Termination.” Journal of Ethnic Studies 14 (Fall 1986): 53–85. P.L. 280 affected the Wisconsin Oneida. Also a termination plan was prepared for them. With astute leadership, they rejected termination in 1956 and maintained their political autonomy. 1008. Hauptman, Laurence M. “The Seneca–Cayugas Reject Termination.” In Between Two Worlds: The Survival of Twentieth Century Indians, edited by Arrell Morgan Gibson, 184–204. Oklahoma City: Oklahoma Historical Society, 1986. This northeastern Oklahoma tribe thwarted termination because of the strength they drew from their Iroquois culture and history, and also thanks to the 1788 Cayuga Treaty. Chief Peter Buck proved a crucial player during a 1958 showdown meeting. 1009. Hauptman, Laurence M. and Jack Campisi. “The Voice of Eastern Indians: The American Indian Chicago Conference of 1961 and the Movement for Federal Recognition.” Proceedings of the American Philosophical Society 132 (December 1988): 316–29. Within Indian Country, there is a debate between federally and non-federally recognized tribes over their legal standing. The authors examine this conflict during the 1961 American Indian Chicago Conference. The conference organizers were not aware of the debate, but the participants were. The conference gave hope to the eastern unrecognized tribes. 1010. Haynal, Patrick. “Termination and Tribal Survival: The Klamath Tribes of Oregon.” Oregon Historical Quarterly 101 (Fall 2000): 270–301. Account of Klamath termination and its effects. Also comments on tribal factionalism during the termination debate, and on the positive gains the tribe has made toward retribalizing since restoration. 1011. Henderson, Eric. “United States v. Washington II: Toward a Judicial Standard of Tribal Status.” Arizona Law Review 24, no. 1 (1982): 179–94. After United States v. Washington, several northwest tribes remained unrecognized by the federal government, but were they entitled to a portion of the salmon fishery? Five tribes whose ancestors signed treaties with the U.S. sought an answer. The district court ruled that the tribes had recognized fishing rights. On appeal, the Ninth Circuit Court of Appeals held that recognition was not necessary, but elements

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had to be present to have fishing rights, including tribal ancestry, control over tribal members, participation in tribal activities, political control over territory, and historical continuity. Judge Canby dissented, arguing that some elements may be more important than others and stating that new determinations of fact were necessary to define a tribal unit. 1012. Herzberg, Stephen J. “The Menominee Indians: From Treaty to Termination.” Wisconsin Magazine of History 60 (Summer 1977): 267–329. The termination experience was ugly for the Menominees, making it important that the state and national leaders become more sensitive to individual tribal needs and goals. 1013. Herzberg, Stephen J. “The Menominee Indians: Termination to Restoration.” American Indian Law Review 6, no. 1 (1978): 143–86. Discusses the events leading to the termination and disastrous aftermath. The Menominee felt the double sting of termination and P.L. 280. This resulted in contraction of their prosperity and the destruction of the reservation health care system. 1014. Hoebel, E. Adamson. “To End Their Status.” In The Indian in Modern America, edited by David A. Baerreis, 1–15. Madison: State Historical Society of Wisconsin, 1956. Comments on H.C.R. 108 and P.L. 280 and the nature of tribal sovereignty. Congress errantly assumes that Native Americans are not already full U.S. citizens. In some cases extension of state jurisdiction will benefit tribes, in others it will not. These situations need to be carefully studied but Congress chooses to be hasty. 1015. Hood, Susan R. “Termination of the Klamath Indian Tribe of Oregon.” Ethnohistory 19 (Autumn, 1972): 379–92. In 1954, Congress passed P.L. 587 that eventually terminated the Klamath reservation and the tribe’s trust relationship with the U.S. Hood examines how this termination act has affected Klamaths. 1016. Houser, Nicholas P. “The Tigua Setttlement of Ysleta del Sur.” Kiva 36 (Winter 1970): 23–39. The settlement was initially established in 1681 for refugee Tiguas. They retained an identity through the centuries and gained U.S. federal recognition as a Texas tribe in 1968 after tribal leaders testified in Washington. 1017. Hutchins, Francis G. Mashpee, The Story of Cape Cod’s Indian Town. West Franklin, NH: Armata Press, 1979. Many non-Natives were unaware of their presence until the 1976 federal suit claming title to town lands.

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Their suit ended in failure in 1979, raising questions about the nature of Mashpee identity and the importance of federal recognition. Hutchins considers ways tribes can preserve their identity in the absence of federal recognition. 1018. Johansen, Bruce E. “The New Terminators: The AntiIndian Movement Resurfaces.” Native Americas 17 (Fall 2000): 42–53. By 2000, new terminationists were introducing legislation in Congress and state legislatures to restrict tribal authority. They want to exclude tribal hunting and fishing rights. 1019. Kawashima, Yasuhide. “Indians and Southern Colonial Statutes.” Indian Historian 7 (Winter 1974): 10–16. Indian–white experiences were outside English common law, forcing legislatures to enact more laws in this area than in any other. In Virginia, they were deemed independent nations, non-tribal Indians, and tributary Indians based on their status. While Georgia, a buffer from tribes and the Spanish, described tribes as independent nations. 1020. Kersey, Harry A., Jr. An Assumption of Sovereignty: Social and Political Transformation among the Florida Seminoles, 1953–1979. Lincoln: University of Nebraska Press, 1996. The tribe survived termination policy, established a formal tribal government, and emerged in a strong position to benefit as a federally recognized tribe. 1021. Kersey, Harry A., Jr. “The Havana Connection: Buffalo Tiger, Fidel Castro, and the Origin of Miccosukee Tribal Sovereignty, 1959–1962.” American Indian Quarterly 25 (Fall 2001): 491–507. When the Seminole leaders traveled to Havana after Castro’s take-over, the State Department was concerned about world opinion and supported the tribal vote on a constitution exerting tribal sovereignty. 1022. Ketcham, Frank S. “Terminating the Klamaths.” American Indian 8 (Spring 1958): 10–19. Pursuant to H.C.R. 108, Congress passed the wide-ranging P.L. 587 in 1954 that placed the Klamaths on the road to termination. Three years later, Congress realized that P.L. 587 “would destroy the Klamath tribe and would also ruin the entire lumber industry of Oregon.” This crisis makes it clear that tribes are not ready for termination, and that stop-gap measures to solve the Klamath forest problem will not solve the human issues. 1023. Kickingbird, Kirke. “A Tour on the Prairies, or Washington Irving and ‘The Horseless Headman’: A Stroll with Congress, the Court, and Indian Nations at the

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Turn of the Century.” St. Thomas Law Review 9 (Fall 1996): 125–48. Examines failed termination efforts and urges Congress to take another tour of the tribal prairie homes and witness tribal courts in action. Tribal governments survived termination’s worst attempts to end tribalism. 1024. Kimball, Solon T. “The New Crisis in Indian Affairs.” American Indian 7 (Spring 1954): 21–28. Termination legislation will not solve the Indian problem, but will rather lead to outsider exploitation of Indians. 1025. La Farge, Oliver. “To Be Free and Equal.” American Indian 7 (Spring 1956): 5–14. Focuses primarily on New Mexico’s treatment of Native Americans and criticizes termination policy for being detrimental to Indian freedom and equality. 1026. La Farge, Oliver. “Termination of Federal Supervision: Disintegration and the American Indians.” Annals of the American Academy of Political and Social Science 311 (May 1957): 41–46. Argues against terminationist efforts. 1027. Laverty, Philip. “The Ohlone/Costanoan–Esselen Nation of Monterey, California: Dispossession, Federal Neglect, and the Bitter Irony of the Federal Acknowledgment Process.” Wicazo Sa Review 18 (Fall 2003): 41–77. Coastal tribes were denied reservation status in the early era of U.S. control because they were already considered domesticated and economically incorporated. Past dispossessions, cultural assaults and threatening relations that encouraged Native people to publicly deny their identity work against current tribal efforts to gain recognition under the current standards. 1028. Lerch, Patricia Barker. “State-Recognized Indians of North Carolina, Including a History of the Waccamaw Sioux.” In Indians of the Southeastern United States in the Late 20th Century, edited by Anthony J. Paredes, 44–71. Tuscaloosa: University of Alabama Press, 1992. Only the Eastern Cherokee enjoy federal status. The federal government officially notes the Lumbees, but they do not have access to BIA services. Others, including the Waccamaw Sioux, have statelevel recognition and deal with the North Carolina Commission of Indian Affairs. Still others lack any form of recognition. 1029. Liljeblad, Sven. “Epilogue: Indian Policy and the Fort Hall Reservation.” Idaho Yesterdays 2 (Summer 1958): 14–19.

Federal Indian policy summary ending with a statement of support for the ideal of Indian integration, but urging policy-makers not to terminate Indian tribal status hastily. 1030. Lurie, Nancy Oestreich. “Menominee Termination or Can the White Man Ever Overcome a Cultural Lag and Learn to Progress with the Indians?” Indian Historian 4 (Winter 1971): 33–45. Briefly discusses Menominee Termination and then tells the story of the early efforts of the Menominee corporation, Menominee Enterprises, Inc. The local white community wants the Menominee to move forward while the Menominee want to change the corporation. 1031. Lurie, Nancy Oestreich. “Menominee Termination: From Reservation to Colony.” Human Organization 31 (Fall 1972): 257–70. Termination took tribal indirect self-rule and gave it to the outsiders, thus creating a classic colonial system. Menominee Enterprises, Inc. was to operate tribal assets and DRUMS, a group opposing MEI, sought restoration. 1032. McClure, Kade. “Termination: Interpreting Legislative Intent—DeCoteau v. District County Court.” American Indian Law Review 3, no. 2 (1975): 489–96. Congress’s 1891 act diminished the exterior boundaries of the Sisseton and Wahpeton Reservation in northeast South Dakota. This represents a trend away from preserving the integrity of reservations. 1033. McCulloch, Anne Merline and David E. Wilkins. “‘Constructing’ Nations within States: The Quest for Federal Recognition by the Catawba and Lumbee Tribes.” American Indian Quarterly 19 (Summer 1995): 361–88. The successful effort on the part of the Catawbas to gain recognition is contrasted with the failed efforts of the Lumbees. The Lumbees’s failure, despite their possession of more resources than the Catawbas, is attributed to the fact that the federal government did not see a defined Lumbee social construction. 1034. Martin, Kallen. “Under His Authority: Senator Slade Gorton and the New Terminators.” Native Americas 13 (Fall 1996): 22–29. The 104th Congress made a Contract with America. Examining this legislation illustrates that a new group wanted to terminate tribes through bills that would have imposed tax payments of 34 percent and given the states more power in tribal gaming issues. The legislation failed despite Washington Senator

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Slade Gorton’s best efforts, but points toward a new direction in reducing tribal sovereignty.

preted the federal regulations in such a way that denied Houma recognition.

1035. Metcalf, Warren R. Termination’s Legacy: The Discarded Indians of Utah. Lincoln: University of Nebraska Press, 2002. The Ute Partitioning Act of 1954 led to a division of tribal resources based on blood quantum, and led to the direct termination of those designated as mixed-bloods. Arthur Watkins’s Mormon beliefs in the inevitability and desirability of American Indian assimilation were the true foundations for his terminationist fervor.

1040. Myers, Mark D. “Federal Recognition of Indian Tribes in the United States.” Stanford Law and Policy Review 12 (Spring 2001): 271–300. The enactment of a federal acknowledgment process for unrecognized tribes has upset most and pleased few. The process means that as more tribes are recognized fewer dollars will be available for all. The entire system should be modified.

1036. Meyer, Roy W. “The Prairie Island Community: A Remnant of Minnesota Sioux.” Minnesota History 37 (September 1961): 271–82. History of a Minnesota band of Mdewakanton Sioux who returned home to Prairie Island and gained official federal recognition after being twice removed. They were initially removed to a reservation following the treaty of Mendota in 1851 and were then moved to Nebraska following the 1862 Sioux Uprising. The band used the IRA to incorporate in 1937. The federal government made land purchases for the tribe at Prairie Island in 1887, 1937, and 1938. 1037. Miller, Bruce G. “After the F.A.P.: Tribal Reorganization after Federal Recognition.” Journal of Ethnic Studies 17 (Summer 1989): 89–100. Congress created the Federal Acknowledgment Program in 1978. The Upper Skagit in Washington gained recognition and that forced widely separated families to unite for political purposes. Miller examines the tribal resources, such as fishing rights, and the tribal population’s solutions for dealing with these tribal resource issues. 1038. Miller, Mark Edwin. Forgotten Tribes: Unrecognized Indians and the Federal Acknowledgment Process. Lincoln: University of Nebraska Press, 2004. The federal acknowledgment process is one of the most important, ambiguous, politicized, and contentious developments in Indian policy since World War II. Miller explains its origins and procedures and focuses on the efforts undertaken by the Pascua Yaquis, Death Valley Timbisha Shoshones, United Houma Nation, and Tiquas. 1039. Morgan, Megan. “A History of the Houma Indians and Their Story of Federal Nonrecognition.” American Indian Journal of the Institute for the Development of Indian Law 5 (February 1979): 8–28. The Houma tribe, living in the Louisiana delta country, sought federal recognition. The BIA inter-

1041. Nielson, Parker M. The Dispossessed: Cultural Genocide of the Mixed-Blood Utes. Norman: University of Oklahoma Press, 1998. Parker litigated the rights of the terminated mixedblood Utes who lost their Indian status during the termination era. This group and others were victimized by termination. 1042. Officer, James E. “Termination as Federal Policy: An Overview.” In Indian Self-Rule: First Hand Accounts of Indian–White Relations from Roosevelt to Reagan, edited by Kenneth R. Philp, 114–28. Salt Lake City, UT: Howe Brothers, 1986. Overview serving as an introduction to a series of multi-authored discussions related to Termination policy. The policy must be viewed in a historical context that is not simply limited to the 1950s. H.R. 108 was “the culmination of a long and determined effort” beginning with the Indian Claims Commission Act. Its passage did not create the policy and its repeal would not necessarily end it. 1043. Orfield, Gary. A Study of the Termination Policy. Denver: National Congress of American Indians, 1960. Attempts to make sense of termination policy by presenting the relationship among governmental entities—the federal, state, county, and tribal governments—with a specific focus on Wisconsin’s government and the Menominee. 1044. Padget, Cindy D. “The Lost Indians of the Lost Colony: A Critical Legal Study of the Lumbee Indians of North Carolina.” American Indian Law Review 21, no. 2 (1997): 391–424. Describes the various theories behind the Lumbee’s origins, their ties to other tribes in the area, congressional legislation to recognize them as Indians and their failure to obtain recognition. 1045. Paredes, J. Anthony. “Federal Recognition and the Poarch Creek Indians.” In Indians of the Southeastern United States in the Late 20th Century, edited by J. Anthony Paredes, 120–39. Tuscaloosa: University of Alabama Press, 1992.

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Surveys recent economic, political, and public relations developments among this community residing in Alabama. They received federal recognition in 1984, their lands were taken into trust and they adopted a constitution in 1985. This was a particularly important and satisfying development. Soon after, the tribe initiated a bingo operation. 1046. Paschal, Rachael. “The Imprimatur of Recognition: American Indian Tribes and the Federal Acknowledgment Process.” Washington Law Review 66 (January 1991): 209–28. Describes the 1978 BIA program enabling unrecognized tribes to gain federal recognition. Tribes must prepare a petition that is staff-reviewed. The process is too rigid and should be restructured. 1047. Peroff, Nicholas C. Menominee Drums: Tribal Termination and Restoration, 1954–1974. Norman: University of Oklahoma Press, 1982. The ill-fated termination policy made it difficult for terminated tribes to survive as their political sovereignty was destroyed. The Menominee local movement was organized and called DRUMS, to push for tribal restoration of their political standing. This terminationist past may be repeated. 1048. Perry, Richard Warren. “The Logic of the Modern Nation-State and the Legal Construction of Native American Tribal Identity.” Indiana Law Review 28, no. 3 (1995): 549–74. A critical examination of the federal rules for tribal recognition, which place great burdens on tribal petitioners. The process becomes a semantics game that marginalizes the process and hurts non-recognized tribes. 1049. Philp, Kenneth R. Termination Revisited: American Indians on the Trail to Self-Determination, 1933–1953. Lincoln: University of Nebraska Press, 1999. Native Americans were proactive during the postwar era, led by strong groups such as the NCAI. These groups did not always agree on what actions should be taken. Their actions “made the uniform national policy of termination an outmoded concept” and “marked the beginning of a Native American movement for increased self-determination.” 1050. Porter, Frank W., III. “Nonrecognized American Indian Tribes in the Eastern United States: An Historical Overview.” In Strategies for Survival: American Indians in the Eastern United States, edited by Frank W. Porter, III, 1–42. New York: Greenwood Press, 1986. Provides historical background to explain why many tribes failed to receive federal recognition,

briefly discusses pre-1978 and current efforts to gain recognition, and stresses that these Native Americans and their cultures have endured. 1051. Porter, Frank W., III. “In Search of Recognition: Federal Indian Policy and the Landless Tribes of Western Washington.” American Indian Quarterly 14 (Spring 1990): 113–32. As late as the 1960s, the U.S. government justified denying recognition to landless tribes, and federal services and treaty rights as well, because they lacked trust holdings. Without a federal procedure to gain recognition, these tribes are left in a legal “no man’s land.” 1052. Porter, Frank W., III. “Without Reservation: Federal Indian Policy and the Landless Tribes of Washington.” In State and Reservation: New Perspectives on Federal Indian Policy, edited by George Pierre Castile and Robert L. Bee, 110–35. Tucson: University of Arizona Press, 1992. The BIA has not recognized these landless tribes. In 1914, the Northwest Federation of American Indians was created to assert treaty claims for unallotted and unattached Indians. It was eventually replaced by the Inter-Tribal Council of Western Washington Indians. 1053. Quinn, William W., Jr. “Federal Acknowledgment of American Indian Tribes: Authority, Judicial Interposition, and 25 C.F.R. § 83.” American Indian Law Review 17, no. 1 (1992): 37–69. The tribal acknowledgment process was defined in 1978 when a systemic method was developed for tribes to employ. This was the result of American Indian Policy Review Commission criticism, the case United States v. Washington, and the Maine Indian land claims. 1054. Quinn, William W., Jr. “Federal Acknowledgment of American Indian Tribes: The Historical Development of a Legal Concept.” American Journal of Legal History 34 (October 1990): 331–63. Traces the changing history of acknowledgment by dividing recognition into three phases ending in 1979, when the BIA published a list of federally recognized tribes. Discusses the problem tribes face in trying to get on the list. Felix Cohen understood the problem and developed five criteria for the Department of the Interior to follow. Compounding this issue is the successful unrecognized Passamaquoddy’s case for recovery of lands and the creation of a BIA acknowledgment office. 1055. Ragsdale, John W., Jr. “The United Tribe of Shawnee Indians: The Battle for Recognition.” UMKC Law Review 69 (Winter 2000): 311–61.

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Describes the legal twists and turns that the United Tribe of Shawnee Indians encountered in their quest for additional lands and federal recognition. 1056. Ragsdale, John W., Jr. “The United Tribe of Shawnee Indians: Resurrection in the Twentieth Century.” UMKC Law Review 68 (Spring 2000): 351–88. Lot 206 was part of the 1854 Shawnee Treaty. Jimmie D. Oyler attempted to consolidate ownership. In theory he “and his extended family could claim the right to exercise a form of sovereign governmental power” that gave rise to the Shawnee Tribe of Kansas, known as the United Tribe of Shawnee Indians. 1057. Ray, Verne R. “The Klamath Oppose Liquidation.” American Indian 4 (Winter 1948): 14–22. Tribal liquidation deeply divided the Klamath during the 1947 council vote. Those favoring termination viewed it as getting out of jail. The opponents issued strong points against the bill, claiming that Congress cannot abrogate the 1864 treaty without tribal consent and claims still must be paid. 1058. St. Clair, James D. and William F. Lee. “Defense of Nonintercourse Act Claims: The Requirement of Tribal Existence.” Maine Law Review 31, no. 1 (1979): 91–113. Unlike many tribal nations living in the western U.S., the eastern tribes have remained hidden and outside of federal government special trust recognition. It is important after the Passamquoddy case for eastern tribes to establish their identity by asserting a common cultural heritage to assist them in determining their tribal status, as is required by the Trade and Intercourse Acts. 1059. Schifter, E. E. Richard. “Indian Title to Land.” American Indian 7 (Spring 1954): 37–47. Discussion of the evolution of tribal land-holding practices written to counter termination. 1060. Schulze, Jeffrey M. “The Rediscovery of the Tiguas: Federal Recognition and Indianness in the Twentieth Century.” Southwestern Historical Quarterly 105 (January 2001): 14–39. The tribe began an ultimately successful struggle to gain federal recognition in the mid-1960s before that federal decision-making process was firmly in place. The tribe was at first interested only in a taxation issue and regaining a small parcel of land. But their successful effort “became a battle for political, cultural, and ethnic legitimacy in the eyes of the community of El Paso, the state of Texas, the federal government, and perhaps even within the tribe itself.”

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1061. Shames, Deborah, ed. Freedom with Reservation: The Menominee Struggle to Save Their Land and People. Madison, WI: National Committee to Save the Menominee People and Forests, 1972. Shames leads an editorial committee advocating tribal restoration. They describe the history of Menominee termination, its devastating consequences, and the work of DRUMS in response. 1062. Sider, Gerald. Lumbee Indian Histories: Race, Ethnicity, and Indian Identity in the Southern United States. New York: Cambridge University Press, 1993. Studies the development of Lumbee perceptions of their history and identity over time and with attention to present divisiveness between Lumbees and those who have emerged from them and claim to be Tuscarora. Sider also considers Lumbee efforts to gain federal recognition. 1063. “The Siletz Restoration Bill.” American Indian Journal of the Institute for the Development of Indian Law 1 (November 1975): 11–13. Considers one of the terminated tribes of western Oregon that sought to have their political status recognized again in the 1970s. 1064. Slagle, Al Logan. “Unfinished Justice: Completing the Restoration and Acknowledgment of California Indian Tribes.” American Indian Quarterly 13 (Fall 1989): 325–45. Details the special problems that California tribes have in meeting the current federal standards for recognition. The great disruptions caused by the killing and dispersal of California Natives have made it difficult to provide the consistent documentation required by federal acknowledgment standards. 1065. Sockbeson, Henry, “Reflections on a Flawed System.” New England Law Review 37, no. 3 (2002–2003): 483–90. Determining who or what is a tribe is difficult. The IRA represented Congress’s first attempt to recognize tribes since only recognized tribes could organize. The advent of eastern tribal land claims and gaming questions have revealed a lack of consistency. 1066. Starna, William A. “We’ll All Be Together Again: The Federal Acknowledgment of the Wampanoag Tribe of Gay Head.” Northeast Anthropology 51 (Spring 1996): 3–12. The Gay Head embarked on a ten-year journey to become a federally recognized tribe. In 1987, Ross Swimmer approved their petition, enabling the tribe to protect their land base and their cultural identity. Federal acknowledgment diverted internal divisions toward new focuses.

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1067. Stefon, Frederick J. “The Irony of Termination: 1943–1958.” Indian Historian 11 (Summer 1978): 3–14. Six out of ten termination bills passed Congress during these years. Despite the end of termination under Secretary of the Interior Seaton, the psychological fear remained and impaired tribal morale. 1068. Strong, John A. “Who Says the Montauk Tribe is Extinct? Judge Abel Blackmar’s Decision in Wyandank v. Benson (1909).” American Indian Culture and Research Journal 16, no. 1 (1992): 1–22. Judge Blackmar, of the New York Supreme Court, ruled that the Montauk of Long Island had lost their residence and hunting rights because they had mixed racially and lost their culture to the point that they were no longer a tribe. Blackmar judged the degree of culture loss among the Montauk with little knowledge of their past traditions. 1069. Sweeney, Rosemary. “Federal Acknowledgment of Indian Tribes: Current BIA Interpretations of the Federal Criteria for Acknowledgment with Respect to Several Northwest Tribes.” American Indian Law Review 26, no. 2 (2001–2002): 203–31. Explains the process through which the federal government determines which tribes to acknowledge and offers examples of how certain tribes (Samish, Cowlitz, and Duwamish) dealt with it. Federal standards are excessive and unevenly applied, and decisions are made without adequate historical information. 1070. Tollefson, Kenneth D. “The Political Survival of Landless Puget Sound Indians.” American Indian Quarterly 16 (Spring 1992): 213–35. A paucity of ethnographic data, and the decisions of the Judge Boldt court of 1979 and the Ninth Circuit Court of 1981, have led to the erroneous assumption that the Duwamish and Snoqualmie are assimilated tribes. To the contrary, these tribes have retained a remarkable level of cultural and political continuity, in part because they have survived in relative obscurity as small economic communities. 1071. Ulmer, Mark. “Tribal Property: Defining the Parameters of the Federal Trust Relationship under the NonIntercourse Act: Catawba Indian Tribe v. South Carolina.” American Indian Law Review 12, no. 1 (1984): 101–45. Though Congress terminated the tribe in the 1959 Catawba Division of Assets Act and revoked the tribe’s constitution, they retained a 630-acre stateowned tract. This case involved the tribe’s right to sue South Carolina under the 1790 Trade and Intercourse Act.

1072. “The Unilateral Termination of Tribal Status: Mashpee Tribe v. New Seabury Corp.” Maine Law Review 31, no. 1 (1979): 153–70. This was the first case where a jury in federal trial court determined that the Mashpee were once a tribe. Now the Mashpee must show they are a tribe within the meaning of the Trade and Intercourse Acts. It is unfair to make a tribe meet such high standards when the U.S. and states have pushed assimilation. 1073. Valandra, Edward C. Not without Our Consent: Lakota Resistance to Termination, 1950–1959. Urbana: University of Illinois Press, 2006. In non-P.L. states, the federal government provided those state legislatures with the option of assuming jurisdiction over reservation law and order through state legislation. In 1957, the South Dakota legislature passed legislation accepting that option, providing tribal communities voted to accept state control over reservation law and order. 1074. Valandra, Edward C. “U.S. Citizenship: The American Policy to Extinguish the Principle of Lakota Political Consent.” Wicazo Sa Review 8 (Fall 1992): 24–29. H.C.R. 108 and P.L. 280 were the modern foundation legislation for eliminating Lakota consent on laws that would affect Lakota reservation governance. This would break decades of efforts to incorporate the Lakota into the dominant society. 1075. Verhoeven, Charles K. “South Carolina v. Catawba Indian Tribe: Terminating Federal Protection with ‘Plain’ Statements.” Iowa Law Review 72 (May 1987): 1117–46. The Nonintercourse Act prohibits transactions between tribes and other American entities without congressional approval. The Catawba entered into an agreement with the U.S. in 1943, declaring that when South Carolina provided them a small reservation the Catawba were assured that they did not waive any sovereign immunity, thus enabling them to pursue claims against the state. The Supreme Court struck down the Catawba’s plea. In doing so it did not follow Indian cannons of construction and “failed to demonstrate that the Termination Act clearly provides for the application of statutes of limitation.” 1076. Walch, Michael C. “Terminating the Indian Termination Policy.” Stanford Law Review 35 (July 1983): 1181–1215. Despite the passage of legislation reversing past termination legislation, the policy’s effects are still evident on reservations. Congress must assist these tribes to build greater autonomy, improve economic conditions, and restore tribal communities.

Sovereign Status, Termination, and Recognition

1077. Watkins, Arthur. “Termination of Federal Supervision: The Removal of Restrictions over Indian Property and Person.” Annals of the American Academy of Political and Social Science 311 (1957): 47–55. The Indian should now be thought of as a “fellow American” with the rights of citizenship. The notion of terminating federal supervision is not “novel,” but a natural progression in federal policy. Senator Watkins explains how termination policy developed during the terms of the 83d and 84th Congresses. 1078. Weatherhead, L. R. “What Is an “Indian Tribe”?— The Question of Tribal Existence.” American Indian Law Review 8, no. 1 (1980): 1–47. As litigation involving tribes increases, the courts will need to define what is a tribe so the federal government can fulfill its trust duties. After Congress passed the Snyder Act in 1922, the Department of the Interior declared that the legislation applied to all tribal members, even if they belonged to a non-recognized tribe. 1079. Wetmore, Ruth Y. “The Role of the Indian in North Carolina History.” North Carolina Historical Review 56 (Spring 1979): 162–76.

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Overview that ends with a brief section on tribal name changes and contemporary federal and state recognition statuses. 1080. Wilkins, David E. “Breaking Into the Intergovernmental Matrix: The Lumbee Tribe’s Efforts to Secure Federal Acknowledgment.” Publius, Journal of Federalism 23 (Autumn 1993): 123–42. Most of the Lumbee live in Robeson County, North Carolina. The seven Lumbee groups each want their own recognition, and they initiated petitions in the 1980s. They are the largest nonrecognized tribe within the U.S. Acknowledgment will have tremendous ramifications on the tribe’s relations not only with the U.S., but also North Carolina. 1081. Wilkinson, Charles F. and Eric R. Briggs. “The Evolution of the Termination Policy.” American Indian Law Review 5, no. 1 (1977): 139–84. Termination Policy was an outgrowth of the previous policies that reached back over 150 years. Past policy failures played an important role in the development of the post-WWII termination era.

Chapter 10 Self-Determination and Tribal Assumption of Federal Programs

1082. Campbell, Senator Ben Nighthorse. “Ensuring the Federal Commitment: The Goals are Tribal SelfDetermination and Self-Sufficiency.” Native Americas 17 (Fall 2000): 30–31. The best way to help tribes is to return power to the local community.

doing something meaningful for Indians, but it took some time for Congress to respond. 1086. Clarkin, Thomas. Federal Indian Policy in the Kennedy and Johnson Administrations, 1961–1969. Albuquerque: University of New Mexico Press, 2001. This era in Indian policy has received scant scholarly attention because it marked the shift in rhetoric toward self-determination policy, but there were few pieces of specific Indian affairs legislation in that vein. These two Democratic administrations’ approaches mirrored the New Deal efforts to expand Indian opportunities and respect their cultures, but also continued the earlier paternalism. Western senators still dedicated to termination, restricted federal Indian initiatives, but they could not prevent application of War on Poverty programs to Indians. Discussion includes Indian activism and the Indian Resources Development Act.

1083. Carmack, William. “A New Approach to Indian Affairs.” In Between Two Worlds: The Survival of Twentieth Century Indians, edited by Arrell Morgan Gibson, 205–35. Oklahoma City: Oklahoma Historical Society, 1986. Studies the philosophical origins, historical context, current functioning, and future potential of selfdetermination policy. The analysis focuses on the strengths and weaknesses of the contracting process. Grants are preferable to contracts. 1084. Castile, George Pierre. Taking Charge: Native American Self-Determination and Federal Indian Policy, 1975–1993. Tucson: University of Arizona Press, 2006. Follow-up to To Show Heart tracing the story through the Carter, Reagan, and Bush administrations. Self-determination policy became official federal policy with bipartisan support during this era, but there was not a consensus as to its true definition and the policy proved difficult to translate into reality.

1087. Danzinger, Edmund J., Jr. “A New Beginning or the Last Hurrah: American Indian Response to Reform Legislation of the 1970s.” American Indian Culture and Research Journal 7, no. 4 (1983): 69–84. Looks at Indian responses to major legislation focused on self-determination, including the Indian Self-Determination and Education Assistance Act and Indian Health Care Improvement Act. Negative responses include complaints about bureaucratic complications and underfunding. But tribes also have seen the potential for meaningful positive change in health care, education, and self-governance and have taken advantage of these opportunities.

1085. Castile, George Pierre. To Show Heart: Native American Self-Determination and Federal Indian Policy, 1960–1975. Tucson: University of Arizona Press, 1998. Traces the development of self-determination policy as a counterpoint to the assimilation-minded termination policy. Termination policy “ran out of political steam” in the 1960s and was driven by Western parochial interests until Johnson’s administration promoted Indian Community Action. Nixon needed “to show heart,” currying favor with minorities by

1088. Dean, S. Bobo. “The Consent of the Governed—A New Concept in Indian Affairs?” North Dakota Law Review 48 (Summer 1974): 533–50. Most tribal leaders did not support S. 1573, dealing with tribal administration of federal programs, 107

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due to the lack of input, and instead supported S. 3157. One of S. 1573’s great drawbacks is the lack of federal financial resources. The Miccosukee of Florida, however, did embrace this bill. 1089. Dean, S. Bobo and Joseph H. Webster. “Contract Support Funding and the Federal Policy of Indian Tribal Self-Determination.” Tulsa Law Journal 36 (Winter 2000): 349–79. The authors are optimistic that the high degree of support for tribal self-determination will translate into greater funding for tribal contract support. 1090. DeLaCruz, Joe. “From Self-Determination to SelfGovernment.” In Indian Self-Governance: Perspectives on the Political Status of Indian Nations in the United States of America, edited by Carol J. Minugh, Glenn T. Morris, and Rudolph C. Ryser, 1–14. Kenmore, WA: Center for World Indigenous Studies, 1989. The president of the Quinault Indian Nation stresses that his tribe and their neighboring tribes have worked actively to attain self-governance. The U.S. government continues to assert control over tribal governments in spite of its self-determination policy. Tribal efforts to advance the Indian Self-Governance Demonstration Project have shown promise. 1091. Deloria, Philip S. “The Era of Indian Self-Determination: An Overview.” In Indian Self-Rule: First Hand Accounts of Indian–White Relations from Roosevelt to Reagan, edited by Kenneth R. Philp, 191–207. Salt Lake City, UT: Howe Brothers, 1986. Overview serving as an introduction to a series of multi-authored discussions related to self-determination. The shift from termination to self-determination “reflects only a tactical shift in the fundamental commitment of the society to bring Indians into the mainstream, not a movement toward a true recognition of a permanent tribal right to exist.” 1092. Durham, Jessie Huff. “Responsible Sovereignty: How Tribes Can Use Protections Provided in P.L. 93638 and P.L. 101-152 to Their Advantage without Taking Advantage.” Tulsa Law Journal 35 (Fall 1999): 55–62. Because of the complex nature of claims against tribes under P.L. 93-638, tribes should handle these claims as responsible sovereigns, or, at the very least, assist the federal government in handing claims stemming from this statute. 1093. Eguiguren, A. R. Legalized Racism: Federal Indian Policy and the End of Equal Rights for All Americans. Heathsville, VA: Sun and Earth, 1999. Federal Self-determination policy promotes the racial fragmentation of America and is unconstitu-

tional legalized racism. A small minority of sovereignty nationalists dominate tribal politics, but most Indians do not want different legal treatment. In 1990, the Mille Lacs Ojibwe Band of Chippewa filed suit against Minnesota demanding different legal treatment, and arguing that an 1837 treaty had precedence over the 14th amendment. 1094. Esber, George S., Jr. “Shortcomings of the Indian Self-Determination Policy.” In State and Reservation: New Perspectives on Federal Indian Policy, edited by George Pierre Castile and Robert L. Bee, 212–23. Tucson: University of Arizona Press, 1992. The Indian Self-Determination and Education Assistance Act and self-determination policy are not aimed at promoting true tribal self-determination. One of the policy’s effects “has been the creation or intensification of divisiveness and the favoring of factions in tribal organizations that pattern their actions after an assimilationist model.” The federal government has only offered the illusion of tribal self-empowerment because it retains final decisionmaking power and is still seeking to terminate its special relationship with tribes. 1095. Forbes, Jack D. Native Americans and Nixon: Presidential Politics and Minority Self-Determination. Los Angeles: American Indian Studies Center, University of California, 1981. Examines Nixon’s first administration and its role “in manipulating and/or creating schisms within the Indian world.” Forbes stresses exploitation of tribal natural resources and efforts to quell Indian activism. Roxanne Dunbar Ortiz provides a foreword also criticizing Nixon’s motives and actions, including his opposition to affirmative action. 1096. Gross, Emma, R. Contemporary Federal Indian Policy toward American Indians. New York: Greenwood Press, 1989. Examines reasons for the federal government’s shift toward self-determination policy in the 1970s by focusing on the policy-making process and key legislation of that decade. Gross stresses the importance of Indian efforts to influence policy and rising government liberalism. 1097. Gross, Michael P. “Indian Self-Determination and Tribal Sovereignty: An Analysis of Recent Federal Indian Policy.” Texas Law Review 56 (August 1978): 1195–1244. Describes the marriage of economic development and educational reform in the Indian Self-Determination and Education Assistance Act of 1975. The cycle of patronage will end and tribes will work more with the private sector. Nevertheless, the legislation still

Self-Determination and Tribal Assumption of Federal Programs

suffers from the contradiction of assimilation through public schools. 1098. McClellan, E. Fletcher. “Implementation and Policy Reformulation of Title I of the Indian Self-Determination and Education Assistance Act of 1975–80.” Wicazo Sa Review 6 (Spring 1990): 45–55. Examines the passage and subsequent amendments made to Title I of the Indian SelfDetermination and Education Assistance Act that provided tribal governments greater control over their own destinies, with the addition of block grants being awarded to twenty tribes. 1099. McKee, Jesse O. “The Choctaw: Self-Determination and Socioeconomic Development.” In A Cultural Geography of North American Indians, edited by Thomas E. Ross and Tyrel G. Moore, 173–87. Boulder, CO: Westview Press, 1987. Self-determination policy has enabled the Mississippi Choctaw to make positive advancements socioeconomically and to consolidate their political power. 1100. Robbins, Rebecca L. “The Forgotten American: A Foundation for Contemporary Indian Self-Determination.” Wicazo Sa Review 6 (Spring 1990): 27–33. President Johnson set the foundation for Indian self-determination in a speech to Congress on March 6, 1968 even though President Nixon will receive the credit. Tribal leaders had a role in this historic speech, reminding the administration that tribal communities had been excluded from the federal legislation designed to fight the war against

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poverty. The inclusion of tribal people in this program helped set the stage for future selfdetermination legislation. 1101. Stuart, Paul H. “Financing Self-Determination: Federal Indian Expenditures, 1975–1988.” American Indian Culture and Research Journal 14, no. 2 (1990): 1–18. Considers problems with the implementation of the Self-Determination policy, which Stuart categorizes as procedural, fiscal, or fundamental. Lack of federal funding is viewed as a primary roadblock for tribal self-determination, and a temporary “selfdetermination trust fund” could be a means to promote true tribal sovereignty. 1102. Stull, Donald D., Jerry A. Schultz, and Ken Cadue, Sr. “Rights without Resources: The Rise and Fall of the Kansas Kickapoo.” American Indian Culture and Research Journal 10, no. 2 (1986): 41–59. P.L. 93-638 is “fraught with paradoxical elements” that impede the successful implementation of this self-determination legislation. The Kansas Kickapoos found that self-determination policy made them more dependent on the federal government because federal agencies controlled funding. Programs became means to provide jobs to tribal members, and political capital for tribal leaders, rather than wellplanned means to pursue long-term developmental goals. The tribal government and tribal employees paid a price when federal funds were subsequently cut in the 1980s. There need to be “bottom up” policy formulation approaches.

Chapter 11 Twentieth-Century Activists and Reformers

1103. Anderson, Gary C. “LaDonna Harris (Comanche).” In The New Warriors: Native American Leaders since 1900, edited by R. David Edmunds, 123–44. Lincoln: University of Nebraska Press, 2001. Traces her career through her failed vice presidential run. Harris has an enduring legacy in Oklahoma through the Oklahomans for Indian Opportunity and Americans for Indian Opportunity, and she continues to draw from her political experiences in Washington to help Native Americans.

they did not mesh with the government’s current policies. 1107. Berthrong, Donald J. The American Indian: From Pacifism to Activism. St. Louis, MO: Forum Press, 1973. Brief chronological survey of U.S. Indian policy and the rise of Indian activism. Indians will continue to follow the activist path in the immediate future. 1108. Blend, Benay. “The American Indian Federation.” In Between Two Worlds: The Survival of Twentieth Century Indians, edited by Arrell Morgan Gibson, 84–104. Oklahoma City: Oklahoma Historical Society, 1986. Joseph Bruner and other assimilated Indians who formed the AIF opposed John Collier’s agenda. The AIF was not a viable organization but presaged the later pan-Indian movement.

1104. Bacigal, Ronald J. “Judicial Reflections upon the 1973 Uprising at Wounded Knee.” Journal of Contemporary Legal Issues 2 (Fall 1988): 1–12. Discusses tribal judge Robert R. Merhige, Jr.’s role on the bench in Pierre, South Dakota. He presided over the Wounded Knee trials at that location following the trial of Dennis Banks and Russell Means in Minneapolis.

1109. Blue Cloud, Peter, ed. Alcatraz Is Not an Island. Berkeley, CA: Wingbow Press, 1972. Primary documents and thoughts from members of Indians of All Tribes. Blue Cloud writes that the occupation was done for everyone and asks the readers to join them in their ongoing efforts.

1105. Banks, Dennis and Richard Erdoes. Ojibwa Warrior: Dennis Banks and the Rise of the American Indian Movement. Norman: University of Oklahoma Press, 2004. Autobiography includes discussion of his participation in AIM and protests during the 1970s, including the siege at Wounded Knee.

1110. Bolt, Christine. American Indian Policy and American Reform. London: Allen & Unwin, 1987. Indian reform “both proceeded in parallel with other liberal reform movements in America, and in certain respects followed an organization and momentum of its own.” Paradoxically U.S. efforts to assimilate Indians impeded assimilation. The final chapter studies pan-Indian protest groups.

1106. Berens, John F. “Old Campaigners, New Realities: Indian Policy Reform in the Progressive Era, 1900–1912.” Mid-America: An Historical Review 59, no. 1 (1977): 51–54. The Progressive Era reformers were holdovers from the previous century’s “Friends of the Indian” group. Albert Smiley and Merrill Gates were often described as the leaders. They campaigned to reform the Indian and the Indian Office. The Indian Office commissioners accepted those reform ideas that were realistic and rejected the old reformers’ plans when

1111. Burnette, Robert and John Koster. The Road to Wounded Knee: The Passionate Life, Death and Rebirth of the American Indian. New York: Bantam Books, 1974. Reviews the events leading to Wounded Knee, 1973. Tribal government was one culprit, as well as 111

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the federal government and its long history of broken treaties. 1112. Carlson, David J. Sovereign Selves: American Indian Autobiography and the Law. Urbana: University of Illinois Press, 2006. Study of the intersection of law and literature focusing on the writing of William Apes and Charles Eastman. Their resistance to assimilation created a foundation for legal change at different times in American tribal history. 1113. Castile, George Pierre. “Who Speaks for the People?” Wassaja/ Indian Historian 13 (June 1980): 33–37. Criticizes current organizations that say too much or too little for tribal people and seeks a new organization that has the power to force consultation with the tribes and stop legislation that harms tribal interests. 1114. Castillo, Edward D. “Twentieth-Century Secular Movements.” In volume 8, California, edited by Robert F. Heizer. In Handbook of North American Indians, general editor William C. Sturtevant. 713–17. Washington, DC: Smithsonian Institution, GPO 1978. A variety of secular movements were established in California around 1900. These organizations contributed to the rise of Indian nationalism and pan-Indianism. The Sequoya League, Indian Board of Cooperation, Society of Northern California Indians, Mission Indian Federation and California Indian Brotherhood are included. White organizations interested in Indian welfare had considerable influence in the policy-making of pan-Indian groups until such groups rejected their influence, focusing on self-determination in the later twentieth century. 1115. Cheatham, Kae. Dennis Banks: Native American Activist. Springfield, NJ: Enslow Publishers, 1997. Brief biography emphasizing the importance of tradition in guiding Banks’s life since 1968. 1116. Churchill, Ward. “The Bloody Wake of Alcatraz: Political Repression of the American Indian Movement during the 1970s.” In American Nations: Encounters in Indian Country, 1850 to the Present, edited by Frederick E. Hoxie, Peter C. Mancall, and James H. Merrell, 375–409. New York: Routledge, 2001. The official repression of the movement was unparalleled “in its virulence and lethal effects” compared to the repression of other North American movements. This repression focused specifically on AIM and was led by the FBI. 1117. Churchill, Ward. “Death Squads in the United States: Confessions of a Government Terrorist.” In From a Na-

tive Son: Selected Essays on Indigenism, 1985–1995, by Ward Churchill, 107–46. Boston, MA: South End Press, 1996. The U.S. government attempted to destroy AIM in an effort to maintain its control over Indian Country and its resources. The article focuses on the events on Pine Ridge in the mid-1970s. Duane Brewer served the BIA police and his statements reveal that the U.S.-sponsored repression included the use of death squads. 1118. Churchill, Ward and Jim Vander. Agents of Repression: The FBI’s Secret Wars against the Black Panther Party and the American Indian Movement. Cambridge, MA: South End Press, 1988. The FBI’s true purpose is to disrupt political movements and protect the status quo, as is exemplified by its actions against AIM on Pine Ridge during the 1970s. Its anti-AIM effort built on previous experience and was its most virulent to date. 1119. Cohen, Fay G. “The Indian Patrol in Minneapolis: Social Control and Social Change in an Urban Context.” Law & Society Review 7 (Summer 1973): 779–86. Focuses on the citizen Indian Patrol of Minneapolis. AIM sponsored this citizen patrol that began operating in August 1968 with mainly urban Chippewas walking East Franklin Avenue to monitor street activity. The patrol was a symbol of AIM’s social change philosophy and was not a vigilante patrol. 1120. Cowger, Thomas W. “‘The Crossroads of Destiny’: The NCAI’s Landmark Struggle to Thwart Coercive Termination.” American Indian Culture and Research Journal 20, no. 4 (1996): 121–44. Account of the NCAI’s often-successful attempts to deal with diverse tribal opinions about termination, propose alternatives to the policy, and struggle against its compulsory application. This process helped change the nature and leadership of the NCAI, and demonstrated the power of using the vote and media. 1121. Cowger, Thomas W. The National Congress of American Indians: The Founding Years. Lincoln: University of Nebraska Press, 1999. Created in Denver in 1944, the NCAI became the most important tribal lobbying group in the twentieth century. Their early successes included supporting the ICC and opposing termination. 1122. Coyne, Randall. “Defending the Despised: William Moses Kunstler.” American Indian Law Review 20, no. 1 (1995–96): 257–79. Overview of the historic and emotional Peltier case.

Twentieth-Century Activists and Reformers

1123. Crow Dog, Leonard and Richard Erdoes. Crow Dog: Four Generations of Sioux Medicine Men. New York: HarperCollins, 1995. Autobiography discussing Lakota history, religious oppression, Crow Dog’s role as AIM’s spiritual leader, and experiences at the 1973 siege of Wounded Knee. 1124. Day, Robert C. “The Emergence of Activism as a Social Movement.” In Native Americans Today: Sociological Perspectives, edited by Howard M. Bahr, Bruce A. Chadwick, and Robert C. Day, 506–32. New York: Harper & Row, 1972. Describes the development of the Red Power movement between 1960 and 1970, from the fish-ins to President Nixon’s message to Congress. Leaders have built momentum and acquired the skills necessary for success. 1125. Deloria, Philip J. “Vine V. Deloria, Sr. (Dakota).” In The New Warriors: Native American Leaders since 1900, edited by R. David Edmunds, 79–95. Lincoln: University of Nebraska Press, 2001. Deloria, Sr. had to negotiate change though a “complex set of cultural frames—Dakota culture, a Dakota-inflected Christianity, an Indian Political culture turning to American governing institutions, and an Episcopal Church vexed by issues of power, race, and politics.” His was a cross-cultural form of leadership. He lobbied in Washington against termination 1126. Deloria, Vine, Jr. “The Indian Rights Association: An Appraisal.” In The Aggressions of Civilization: Federal Indian Policy since the 1880s, edited by Sandra L. Cadwalader and Vine Deloria, Jr., 3–18. Philadelphia: Temple University Press, 1984. Analyzes shifting IRA strategies over the years. The long-lived organization has accomplished much and changed its focus from promoting assimilation to protecting Native legal rights. The organization’s staff benefits from its long experience, enabling it to avoid errors that its counterparts have made. 1127. Deloria, Vine, Jr. We Talk, You Listen: New Tribes, New Turf. New York: Macmillan Company, 1970 Commentary on American society, white-minority relations, the shortcomings of social movements, and the lessons American Indians can teach. The white man, to survive, should “adopt a total Indian way of life.” 1128. DeLuca, Richard. “‘We Hold the Rock’—The Indian Attempt to Reclaim Alcatraz Island.” California History 62 (Spring 1983): 2–23. Rather than being an isolated event, the occupation grew out of California’s history of Indian land claims disputes with the U.S. The takeover contributed to

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the federal shift toward self-determination policy, the establishment of Deganawida–Quetzalcoatl University, and subsequent “Red Power” actions. 1129. Ellis, Richard N. “Luther Standing Bear: ‘I would raise him to be an Indian.’” In Indian Lives: Essays on Nineteenth- and Twentieth-Century Native American Leaders, edited by L. G. Moses and Raymond Wilson, 139–57. Albuquerque: University of New Mexico Press, 1985 (second printing 1993). Standing Bear was ahead of his time in championing both western education and instruction in traditional Native ways. 1130. Forbes, Jack. “Alcatraz: Symbol and Reality.” California History 62 (Spring 1983): 24–25. The Alcatraz occupation probably did not fundamentally alter the Indian movement, but did capture media attention, served as a symbol of Native American struggles, created a new sense of pride for some, and was a useful learning experience for those taking part. On the other hand, it may have led some to focus too much on high-profile media events. 1131. Fortunate Eagle, Adam. Alcatraz! Alcatraz!: The Indian Occupation of 1969–1971. Berkeley: Heyday Books, 1992. Personal account by a local Chippewa businessman of his decision to join the occupation and the ensuing events. 1132. Fortunate Eagle, Adam. “The Legal Adventures of Fortunate Eagle: The Activist Formerly Known as Adam Nordwall.” St. Thomas Law Review 10 (Fall 1997): 53–77. The tribal occupation of Alcatraz Island was the most important event in tribal activism. 1133. Fortunate Eagle, Adam with Tim Findley. Heart of the Rock: The Indian Invasion of Alcatraz. Norman: University of Oklahoma Press, 2002. Narrative account of the Alcatraz occupation stressing its power as a unifying force. 1134. Fritz, Henry E. “The Last Hurrah of Christian Humanitarian Indian Reform: The Board of Indian Commissioners, 1909–1918.” Western Historical Quarterly 16 (April 1985): 147–62. The Board of Indian Commissioners once again was influential in federal Indian policy during the Progressive Era. It became less enthusiastic about land allotment, instead focusing on preserving the Native land base and promoting improvements in health care. The board criticized the Burke Act and attempted to slow the allotment process. It took steps toward the Indian New Deal reforms.

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1135. Gill, E. Ann. “An Analysis of the 1868 Oglala Sioux Treaty and the Wounded Knee Trial.” Columbia Journal of Transnational Law 14, no. 1 (1975): 119–46. There were four parties at Wounded Knee II: the residents of Pine Ridge who requested AIM’s help, AIM, the tribal government led by Richard Wilson, and federal agents. The 1868 treaty became a focal point in this four-way struggle as the anti-Wilson group wanted to use the treaty to rid themselves of his regime. 1136. Guillemin, Jeanne. “American Indian Resistance and Protest.” In Violence in America: Historical and Comparative Perspectives, revised edition, edited by Hugh Davis Graham and Ted Robert Gurr, 287–306. Beverly Hills, CA: Sage Publications, 1979. Indian resistance is divided into three phases that were determined by the growth of centralized authority: the colonial era in the Northeast, westward expansion in the nineteenth century, and the modern phase characterized by the growth of large-scale bureaucracies. 1137. Hafen, P. Jane. “Gertrude Simmons Bonnin: For the Indian Cause.” In Sifters: Native American Women’s Lives, edited by Theda Perdue, 127–40. Oxford: Oxford University Press, 2001. Bonnin became a teacher, writer, Indian advocate and member of the SAI. She once opposed assimilation policy but came to support many aspects of it. She was an important voice in opposition to the peyote religion and later helped found the NCAI. 1138. Hagan, William T. “Civil Service Commissioner Theodore Roosevelt and the Indian Rights Association.” Pacific Historical Review 44 (May 1975): 187–200. Modifies negative images about Roosevelt’s relationship with American Indians by stressing his role in improving the Indian Office. Roosevelt did not, however, take exceptional interest in Indian affairs and he was a proponent of Indian assimilation. 1139. Hagan, William T. The Indian Rights Association: The Herbert Welsh Years, 1882–1904. Tucson: University of Arizona Press, 1985. The IRA advocated federal assimilation policies including boarding schools, land allotment, and Christianization. Hagan highlights the IRA’s and Welsh’s innovations in contrast to other reform groups and stresses their tirelessness. 1140. Harmon, Alexandra. “When Is an Indian Not an Indian? ‘Friends of the Indian’ and the Problems of Indian Identity.” Journal of Ethnic Studies 18 (Summer 1990): 95–124.

The individuals who gathered at Lake Mohonk wanted society to eliminate tribal political and social status. Despite their easy rhetoric, the assimilation campaign forced these reformers to understand that “racial identity was a complex and enduring phenomenon.” 1141. Harris, LaDonna, edited by H. Henrietta Stockel. LaDonna Harris: A Comanche Life. Lincoln: University of Nebraska Press, 2000. Harris founded the Oklahomans for Indian Opportunity, which grew into Americans for Indian Opportunity, served on the National Indian Opportunities Council and ran as a U.S. vice-presidential candidate in 1980 for the environmentalist/Citizen’s Party. She believes firmly in Comanche values. 1142. Hauptman, Laurence M. “Alice Jemison: Seneca Political Activist, 1901–1964.” Indian Historian 12 (Spring 1979): 15–22, 60–62. Jemison spent most of her adult life as an activist for tribal issues. Her main concern was to push for tribal self-determination. 1143. Hauptman, Laurence M. “Alice Lee Jemison: A Modern ‘Mother of the Nation.’” In Sifters: Native American Women’s Lives, edited by Theda Perdue, 175–86. Oxford: Oxford University Press, 2001. An important journalist, Jemison fought for Seneca sovereignty and treaty rights in the twentieth century. Accused of being a radical, she had strong Seneca roots. 1144. Hauptman, Laurence M. “The American Indian Federation and the Indian New Deal: A Reinterpretation.” Pacific Historical Review 52 (November 1983): 378–402. The AIF stood as the primary Indian organization in opposition to federal policy during the New Deal, opposing the IRA, pushing for Collier’s removal, and arguing for the abolition of the BIA. Although supported by non-Indians who had their own motives, the AIF was an organization of diverse membership that legitimately represented many Native Americans. It helped pave the way for termination policy. 1145. Hauptman, Laurence M. “Designing Woman: Minnie Kellogg, Iroquois Leader.” In Indian Lives: Essays on Nineteenth- and Twentieth-Century Native American Leaders, edited by L. G. Moses and Raymond Wilson, 159–86. Albuquerque: University of New Mexico Press, 1985 (second printing 1993). An Oneida, Kellogg helped found the SAI, was involved with the Iroquois land-claims movement, and supported the maintenance of tribal traditions. She had extraordinary talents, but her questionable ethics made her controversial and tragic.

Twentieth-Century Activists and Reformers

1146. Hecht, Robert A. Oliver LaFarge and the American Indian: A Biography. Metuchen, NJ: Scarecrow Press, 1991. A reformer, author, and president of the Association on American Indian Affairs, LaFarge fought for Indian welfare and preservation of Indian identity and culture, but he was “periodically wracked by self-doubts and frustrations.” 1147. Hertzberg, Hazel W. The Search for American Indian Identity: Modern Pan-Indian Movements. Syracuse, NY: Syracuse University Press, 1971. Compares different types of pan-Indian movements during the first third of the twentieth century. Pan-Indian movements arose during the Progressive Era, expressing hope for the future, focusing on common Indian interests, and “stressing Indian accommodation to the dominant society.” The SAI and NAC are among the groups whose histories are described and whose goals and organizational structures are analyzed. 1148. Hertzberg, Hazel W. “Indian Rights Movement, 1887–1973.” In History of Indian–White Relations, volume 4, edited by Wilcomb E. Washburn, Handbook of North American Indians, general editor William C. Sturtevant, 305–23. Washington, DC: Smithsonian Institution, 1988. Describes the common developmental pattern through which organizations have influenced federal Indian policy, including organization creation, the forging of consensus, and mobilization of public support. A variety of organizations have composed the movement, and discussion ranges from the IRA to AIM. 1149. Hodgson, Dorothy. “Introduction: Comparative Perspectives on the Indigenous Rights Movement in Africa and the Americas.” American Anthropologist 104, no. 3 (2002): 1037–49. Compares these indigenous rights movements that are similar but employ different strategies. 1150. Holm, Tom. “The ‘Red Progressives’.” In Between Two Worlds: The Survival of Twentieth Century Indians, edited by Arrell Morgan Gibson, 16–30. Oklahoma City: Oklahoma Historical Society, 1986. Indians seeking the benefits of Western education but still asserting tribal identities made up this group and became “the first marginal people of the new century.” They represent the failures of assimilation policy and the strengths of Indian culture. They helped destroy the policy of which they were products. 1151. Hoxie, Frederick E. “Exploring a Cultural Borderland: Native American Journeys of Discovery in the

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Early Twentieth Century.” Journal of American History 79 (December 1992): 969–95. An entry from a Salishan woman’s autobiography serves to exemplify a generation of American Indians who found ways to adapt to the transition from the pre-reservation world to this new era. They had to bridge the divide between their traditional kinsmen and the non-Indian world. Discussion includes Charles A. Eastman, Zitkala-Sa (Gertrude Bonnin), Luther Standing Bear, development of the NAC, the Alaska Native Brotherhood, and the NCAI. 1152. Iverson, Peter. “Carlos Montezuma.” In American Indian Leaders: Studies in Diversity, edited by R. David Edmunds, 206–20. Lincoln: University of Nebraska Press, 1980. Abbreviated version of Iverson’s book-length biography of the Yavapai physician and reformer. 1153. Iverson, Peter. Carlos Montezuma and the Changing World of American Indians. Albuquerque: University of New Mexico Press, 1982. Montezuma was a Yavapai physician who once worked for the BIA but became a critic. He helped found the SAI, worked with water rights, served as an advocate for the Fort McDowell reservation and published the newsletter Wassaja. He called for the abolition of the BIA and criticized reservation policy. He believed that American Indians had to adapt to change, but could do so without sacrificing their Native heritage. 1154. Johansen, Bruce E. “The New Terminators: A Guide to the Antitreaty Movement.” In Enduring Legacies, Native American Treaties and Contemporary Controversies, edited by Bruce E. Johansen, 305–32. Westport, CT: Praeger, 2004. The “newest wave of termination advocates,” like John Fleming, are “reservation landowners who complain that they are being treated as an oppressed minority.” Johansen traces the recent development of this movement and criticizes a number of contemporary anti-sovereignty groups. 1155. Johansen, Bruce E. and Roberto Maestas. Wasi’chu: The Continuing Indian Wars. New York: Monthly Review Press, 1979. Powerful whites are having to intensify their exploitation of Native peoples and their lands and resources because “the economic, cultural, and political forces which propelled mercantile colonialism across the Atlantic are now in retreat.” Recent Native activism, including AIM actions, and FBI repression are highlighted.

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1156. Johnson, N.B. “The National Congress of American Indians.” Chronicles of Oklahoma 30 (Summer 1952): 140–48. Tribes need a champion and the NCAI has worked on their behalf. Johnson, a Cherokee attorney, judge, and NCAI president, concludes with a plea to right past wrongs and help Indians, and the assertion that Indians wish to become fully absorbed American citizens. 1157. Johnson, Troy R. Indian Self-Determination and the Rise of Indian Activism: The Occupation of Alcatraz Island. Urbana: University of Illinois Press, 1996. The occupation successfully engaged American public opinion and made clear the need for selfdetermination, and this is more significant than any failures to secure specifically stated objectives. 1158. Johnson, Troy, Joane Nagel, and Duane Champagne, eds. American Indian Activism: Alcatraz to the Longest Walk. Urbana: University of Illinois Press, 1997. Sixteen essays by various authors, including participants in the 1969 occupation. The authors stress the symbolic importance of Alcatraz in the developing American Indian protest movement. Karren Baird-Olson asks whether participation in AIM protests was worth it and concludes that, in spite of great personal costs, it was. 1159. Katz, Jane B., ed. Let Me Be a Free Man: A Documentary History of Indian Resistance. Minneapolis, MN: Lerner Publications Co., 1975. Includes excerpted statements by twentiethcentury American Indian activists. 1160. Kidwell, Clara Sue. “Ada Deer (Menominee).” In The New Warriors: Native American Leaders since 1900, edited by R. David Edmunds, 239–60. Lincoln: University of Nebraska Press, 2001. Deer led the effort to reverse Menominee termination and was the first American Indian woman to serve as the assistant secretary of Indian Affairs. She has been an effective leader with a strong sense of purpose who has advocated tribal sovereignty and self-governance. 1161. Kotlowski, Dean J. “Alcatraz, Wounded Knee, and Beyond: The Nixon and Ford Administrations Respond to Native American Protest.” Pacific Historical Review 72 (May 2003): 201–27. Activism and grassroots actions led to meaningful change in federal Indian policy, pushing Nixon and Ford to act on Native concerns. Both administrations supported self-determination and “responded patiently to unrest.”

1162. Krieger, Albert J. “Wounded Knee Revisited: The Personal Reflections of a Defense Attorney upon a Water-Shed Life Experience.” St. Thomas Law Review 10 (Fall 1997): 45–51. An attorney who represented the defendants offers a personal account of the Wounded Knee trials held in Sioux Falls, South Dakota. 1163. Kunstler, William. “By Hook or By Crook.” Hamline Law Review 8 (October 1985): 611–24. Kunstler represented AIM leaders in the Minneapolis trials against federal charges. He remarks on the trial and the lengths that the federal government was willing to go to for prosecution in this high profile case. 1164. Kunstler, William. “Remarks on the Leonard Peltier Case.” American Indian Law Review 20, no. 1 (1995– 1996): 281–82. Peltier’s appellate attorney provides commentary. 1165. Landsman, Gail H. Sovereignty and Symbol: Indian–White Conflict at Ganienkeh. Albuquerque: University of New Mexico Press, 1988. In 1974, Mohawks seized 612 acres in upstate New York and established a permanent home. Landsman examines the takeover and the ensuing political negotiations. 1166. Lindsley, Sheryl L., Charles A. Braithwaite, and Kristin L. Ahlberg. “Mending the Sacred Hoop: Identity Enactment and the Occupation of Wounded Knee.” Great Plains Quarterly 22 (Spring 2002): 115–26. The 1973 occupation may be deemed a rhetorical failure as evidenced by negative media coverage, but it was successful in affirming a Native American identity and gaining “national attention in their struggle against becoming the ‘vanishing’ peoples.” 1167. Lurie, Nancy Oestreich. “Ada Deer: Champion of Tribal Sovereignty.” In Sifters: Native American Women’s Lives, edited by Theda Perdue, 223–41. Oxford: Oxford University Press, 2001. Deer’s successful effort to repeal her tribe’s termination made her an advocate for all tribes. Lurie details the history of Menominee termination, its effects, and DRUMS’ efforts. 1168. McMillen, Christian. “The Birth of an Activist: Fred Mahone and the Politicization of the Hualapai, 1918 to 1923.” American Indian Culture and Research Journal 27, no. 1 (2003): 33–60. Fred Mahone, after returning from boarding school, led Hualapai efforts to expel ranchers and the railroad from tribal land. He rejected the “antimodernism” of groups like the SAI and helped create

Twentieth-Century Activists and Reformers

a modern brand of activism based on “reservationspecific” issues. 1169. McNickle, D’Arcy. “Private Intervention.” Human Organization 20 (Winter 1961–1962): 208–15. In the face of a common history of colonization, both Canada and the U.S. have had a good record of private organizations forcing both governments to consider the rights of tribal communities. 1170. Mason, W. Dale. “‘You Can Only Kick So Long . . .’ American Indian Movement Leadership in Nebraska 1972–1979.” Journal of the West 23 (July 1984): 21–31. Looks at an AIM occupation of Fort Robinson State Park in protest of the loss of that land guaranteed to the Lakota by the 1868 Fort Laramie Treaty, and also AIM efforts to curb police abuses of Native people in Gordon, Nebraska. 1171. Mathes, Valerie Sherer. “Dr. Susan LaFlesche Picotte: The Reformed and the Reformer.” In Indian Lives: Essays on Nineteenth- and Twentieth-Century Native American Leaders, edited by L. G. Moses and Raymond Wilson, 61–89. Albuquerque: University of New Mexico Press, 1985 (second printing, 1993). An Omaha physician and late nineteenth- early twentieth-century reformer, Picotte served as an advocate for her people, helping win them the right to rent and lease allotted lands. She also took action on health and alcohol-related causes. Unlike other Christian reformers, she did not attack traditional ways. 1172. Matthiessen, Peter. In the Spirit of Crazy Horse. New York: Viking Press, 1983. Publicly popular account of the “ruthless persecution” of Leonard Peltier and the events leading up to and following the violence at Pine Ridge, his trial, and conviction.

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1175. Meyer, William. Native Americans: The New Indian Resistance. New York: International Publishers, 1971. Colonization of American Indians continues today and is carried out by many groups. Chapters focus on BIA “social genocide,” land and water rights, hunting and fishing rights, and self-determination. Indian resistance to colonization continues today in dynamic new and subtle ways. 1176. Mihesuah, Devon A. “Anna Mae Pictou-Aquash: An American Indian Activist.” In Sifters: Native American Women’s Lives, edited by Theda Perdue, 204–22. Oxford: Oxford University Press, 2001. She advocated American Indian and Native women’s rights as an AIM leader, and was involved in the tensions on Pine Ridge during the 1970s. Mihesuah considers the sources of animosity between her and other AIM members, especially males, and how “feminism” has differing definitions. 1177. Nagel, Joane. “The Political Mobilization of Native Americans.” Social Science Journal 19 (July 1982): 37–45. “Tribal,” “pan-tribal,” and “pan-Indian” are all terms describing AIM’s organization. Congressional policy and corporate appropriation of tribal resources are the reasons behind these divisions. This threelevel division has at times reinforced and diminished collective tribal interests. 1178. Nagel, Joane and Troy Johnson, eds. “Alcatraz Revisited: The 25th Anniversary of the Occupation, 1969–1971.” American Indian Culture and Research Journal 18, no. 4 (1994): 1–253. Participants, observers, and students of the tribal occupation of Alcatraz reflect on the take-over and its importance in history. Authors include Vine Deloria, Jr., Steve Talbot, and George Horse Capture.

1173. Means, Russell. Where White Men Fear to Tread: The Autobiography of Russell Means. New York: St. Martin’s Press, 1995. Includes accounts of involvement in AIM, the siege at Wounded Knee, and his trial. Means wishes to be remembered “as a fighter and as a patriot who never feared controversy—and not just for Indians.”

1179. Parker, Dorothy R. “D’Arcy McNickle (MétisFlathead).” In The New Warriors: Native American Leaders since 1900, edited by R. David Edmunds, 97–121. Lincoln: University of Nebraska Press, 2001. McNickle, an anthropologist, teacher, novelist, and administrator, worked for the survival of American Indians and was one of the century’s most influential Native leaders.

1174. Messerschmidt, Jim. The Trial of Leonard Peltier. Boston, MA: South End Press, 1983. Peltier was wrongly convicted for murdering two FBI agents and is being held as a political prisoner. The trial is recounted, as are the preceding events on Pine Ridge involving AIM, the FBI and Chairman Dick Wilson.

1180. Peltier, Leonard. “Betrayal, Hope, and the American Judicial System.” New York University Review of Law & Social Change 20, no. 2 (1993): 199–201. Peltier describes his views on treaties and AIM. He also provides his personal experiences before the U.S. courts as an accused criminal. Peltier is very critical of the American system of justice.

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1181. Peltier, Leonard. Prison Writings: My Life Is My Sundance. New York: St. Martin’s Press, 1999. Collection of writings and poems, including recollections of his involvement in AIM, the events at Pine Ridge, and the aftermath of the violence there. 1182. Porter, Joy. To Be Indian: The Life of Iroquois– Seneca Arthur Caswell Parker. Norman: University of Oklahoma Press, 2001. This anthropologist and Indian spokesperson was criticized by many for his assimilationist views, but Iroquois people view him positively. He struggled amid Indian stereotypes to be an Indian. He helped found the SAI. 1183. Priest, Loring B. Uncle Sam’s Stepchildren: The Reformation of United States Indian Policy, 1865–1887. Lincoln: University of Nebraska Press, 1975; first published by Rutgers University Press, 1942. A drastic change in federal Indian policy occurred between the Civil War and passage of the Dawes Act, driven by reformers with good intentions, but they were not cautious. The Severalty Act failed to spell out a detailed course of action. 1184. Prucha, Francis Paul. American Indian Policy in Crisis: Christian Reformers and the Indian, 1865–1900. Norman: University of Oklahoma Press, 1976. White reformers emphasized the importance of individualism and pushed for policy actions such as land allotment, law, education, and efficient administration. The reformers had the best of intentions and believed that they had accomplished their goals by the end of the century, but they did not succeed in assimilating American Indians. 1185. Prucha, Francis Paul, ed. Americanizing the American Indians: Writings by the “Friends of the Indian,” 1880–1900. Cambridge, MA: Harvard University Press, 1973. Volume of reprinted writings by these reformers organized into chapters on policy reform, land in severalty, law, and education. Prucha criticizes the reformers for their ethnocentrism and stresses their failures. 1186. Record, Ian and Anne Pearse Hocker. “A Fire That Burns: The Legacy of Wounded Knee.” Native Americas 15 (Spring 1998): 14–25. The Lakota Student Alliance organized 1973 Wounded Knee’s silver anniversary to commemorate the reasons why AIM staged the take over. Despite the publicity, the people of Pine Ridge face a daily struggle for survival that threatens their ability to preserve language and culture.

1187. Ronney, Rachael A. “The Role of AIM Leaders in Indian Nationalism.” American Indian Quarterly 3 (Autumn 1977): 209–24. Using Milton Gordon’s model of identity, describes tribal nationalism in the recent period. AIM first claims an Indian identity and then their tribal affiliation. 1188. Roos, Philip D., Dowell H. Smith, Stephen Langley, and James McDonald. “The Impact of the American Indian Movement on the Pine Ridge Indian Reservation.” Phylon 41 (March 1980): 89–99. Several years after Wounded Knee, the reservation had returned to poverty, high unemployment, and despair. AIM’s intervention created a more divisive community. 1189. Sanchez, John, Mary E. Stuckey, and Richard Morris. “Rhetorical Exclusion: The Government’s Case against American Indian Activists, AIM, and Leonard Peltier.” American Indian Culture and Research Journal 23, no. 2 (1999): 27–52. Peltier’s case serves as an example of rhetorical exclusion, which the authors define as a tactic where the government portrays those who question its authority as inherently guilty of crimes against the polity. The tactic also creates “legal masks” that obscure any “antidemocratic” consequences of its actions. 1190. Sayer, John William. Ghost Dancing the Law: The Wounded Knee Trials. Cambridge, MA: Harvard University Press, 1997. AIM prevailed in most of the trials against its members and was able to use the Means and Banks trial as a political forum. The government decision to prosecute, however, “played a significant role in curtailing the Indian movement in the mid-1970s . . . by forcing the political struggle into the courtroom.” 1191. Skenandore, Francis. “William Skenandore.” In The Oneida Indian Experience: Two Perspectives, edited by Jack Campisi and Laurence M. Hauptman, 126–30. Syracuse, NY: Syracuse University Press, 1988. Their “self-styled attorney” helped “set the groundwork for much of the Oneida’s contemporary legal concerns, including the pursuit of the Oneida Indian land claim in New York State.” 1192. Smith, Paul Chaat and Robert Allen Warrior, Like a Hurricane: The Indian Movement from Alcatraz to Wounded Knee. New York: New Press, 1996. Narrative account of Native American activists and reform organizations that depicts their courage, innovations, and successes, but also analyzes the movement’s shortcomings. Federal harassment pri-

Twentieth-Century Activists and Reformers

marily impeded the Indian Movement, but so too did internal personality disputes and organizational miscalculations. 1193. Speroff, Leon. Carlos Montezuma, M.D.: A Yavapai American Hero: The Life and Times of an American Indian, 1866–1923. Portland, OR: Arnica Publishing, 2003. Narrative biography of the physician and reformer who shifted from his pro-assimilationist advocacy to efforts to help his tribe regain their land and water rights. 1194. Stern, Kenneth S. Loud Hawk: The United States versus the American Indian Movement. Norman: University of Oklahoma Press, 1994. Kenneth Loud Hawk was one of six AIM members placed on trial in 1975 for arms possession in Portland. The case ended thirteen years later still in pre-trial, making it the longest pretrial case in U.S. legal history. 1195. Strausfeld, David M. “Reformers in Conflict: The Pueblo Dance Controversy.” In The Aggressions of Civilization: Federal Indian Policy since the 1880s, edited by Sandra L. Cadwalader and Vine Deloria, Jr., 19–43. Philadelphia: Temple University Press, 1984. John Collier and the Indian Rights Association, led by Herbert Welsh, clashed during the 1920s over Pueblo rights to practice their traditional rituals. Strausfeld discusses Collier’s conflicts and compromises with the IRA, including over disagreements about the Wheeler-Howard Act. Both Collier and the IRA fell short in efforts to serve Indians because of their egos and ideologies. 1196. Svensson, Frances. The Ethnics in American Politics: American Indians. Minneapolis, MN: Burgess Publishing, 1973. In politics, determining Indian identity is not just racial or cultural, but is a complex interaction of these factors. Reviews U.S. Indian policies from the Commerce Clause to P.L. 280 and ends with discussion of the Red Power movement. 1197. Szasz, Margaret Connell. “Indian Reform in a Decade of Prosperity.” Montana: Magazine of Western History 20 (January 1970): 16–27. As the Progressives turned inward and the Lost Generation left, reform did not cease. Instead, the Bursum Bill invigorated reformers to contrast the plight of the Indian with the American standard of living and seek change for tribes. 1198. Talbot, Steve. “Free Alcatraz: The Culture of Native American Liberation.” Journal of Ethnic Studies 6 (Fall 1978): 83–96.

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Discusses tribal activism, such as the 1937 Navajo boundary war to gain land for landless Navajos, and the Pyramid Lake Paiute ousting of illegal white squatters and tribal dissenters during WWII. 1199. Tilsen, Kenneth E. “U.S. Courts and Native Americans at Wounded Knee.” Guild Practitioner 31 (Spring 1974): 61–69. Places the blame for Wounded Knee 1973 on the nation’s policy of genocide and documents the arrests of over 500 persons, many of whom were charged with conspiracy. The government’s highhanded prosecution faltered when their undercover activities were revealed and felony charges were dropped. 1200. Treat, James. “Intertribal Traditionalism and the Religious Roots of Red Power.” In Native American Spirituality: A Critical Reader, edited by Lee Irwin, 270–94. Lincoln: University of Nebraska Press, 2000. Documents the influence that traditionalists have had on activist movements and intertribal cooperation. This traditional movement “was intertribal and transnational, nationalistic and populist, intergenerational and prophetic.” The “Red Power” movement was able to build on this foundation. 1201. Warrior, Robert. “Intellectual Sovereignty and the Struggle for an American Indian Future.” Wicazo Sa Review 8 (Spring 1992): 1–20. Tribal governments must govern while authors must eliminate the colonialism of the past by writing their own literature. Tribal America has to understand the role of activism and what was gained and lost in the 1970s. 1202. Washburn, Kevin K. “Lara, Lawrence, Supreme Court Litigation, and Lessons from Social Movements.” Tulsa Law Review 40 (Fall 2004): 25–45. The Lara case had great ramifications for tribal sovereignty. Several states opposed Congress’s Duro fix, thus forcing the NCAI to join with the NARF to create the Supreme Court Project to coordinate information on this case and potential actions. Eighteen tribes joined the effort that produced three amicus briefs. Based on this success, tribes need to identify social movements outside of tribal affairs and look to them for support and ideas. 1203. Welch, Deborah. “Gertrude Simmons Bonnin (Zitkala-·Sˇa) (Dakota).” In The New Warriors: Native American Leaders since 1900, edited by R. David Edmunds, 35–53. Lincoln: University of Nebraska Press, 2001.

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Bonnin was one of the first American Indian women who sought a national leadership role in shaping U.S. Indian policy. She played a large role in maintaining the concept of pan-Indian political organization between the decline of the SAI and creation of the NCAI, was a leading advocate for the protection of Indian lands and natural resources, and spoke on behalf of Indians off, as well as on, reservations. 1204. Weyler, Rex. Blood of the Land: The U.S. Government and Corporate War against the American Indian Movement. New York: Everest House, 1982. Personal experiences and commentary related to the Trail of Broken Treaties, AIM, Wounded Knee 1973, destructive mining on the Hopi and Navajo reservations, FBI harassment, and Leonard Peltier’s prosectution. 1205. Wilson, Raymond. “Dr. Charles A. Eastman, Early Twentieth-Century Reformer.” Journal of the West 23 (July 1984): 7–12. A biographical sketch that includes some references to Eastman’s stances on sovereignty issues, in-

cluding his support for the Dawes Act and the granting of Indian citizenship, and his opposition to peyote rights for Native Americans. 1206. Wilson, Raymond. “Russell Means (Lakota).” In The New Warriors: Native American Leaders since 1900, edited by R. David Edmunds, 147–69. Lincoln: University of Nebraska Press, 2001. Despite shortcomings, Means’s efforts have forced national attention to Indian issues and helped instill Native American pride. The militancy he advocated through AIM often drew attention to the violent acts themselves rather than the issues. Discussion includes recent rifts between AIM leaders. 1207. Wood, Harlington, Jr. “Footnote to History: A Personal Account of a Segment of Wounded Knee 1973 Told for Lauren and Alex.” University of Illinois Law Review, no. 1 (1995): 30–92. In 1973, Wood was assistant attorney general in charge of the Civil Division of the Department of Justice and he promoted peaceful negotiations.

Chapter 12 Trust Status, Guardianship, and Trust Funds

1208. Adamson, Rebecca. “Land Rich and Dirt Poor: The Story of Native Assets.” Native Americas 20 (Summer 2003): 26–37. The government’s failed trust responsibility effectively denied tribal people control over their lands and resources.

pursue money damages in the Court of Claims in keeping with Congress’s policy of self-determination. 1212. Chambers, Reid Peyton. “Judicial Enforcement of the Federal Trust Responsibility to Indians.” Stanford Law Review 27 (May 1975): 1213–48. Questions the basic role of the courts in enforcing the nation’s trust responsibility to tribes. Congress is the final arbitrator and the executive must follow the rigid principles of the law.

1209. Aitken, Janice. “The Trust Doctrine in Federal Indian Law: A Look at Its Development and How Its Analysis under Social Contract Theory Might Expand Its Scope.” Northern Illinois University Law Review 18 (Fall 1997): 115–55. The trust doctrine, established in Cherokee Nation, created a relationship where Congress had nearly absolute power on one hand and tribal self-rule was upheld on the other. Treaties are implied social contracts between people and governments and the U.S. should be limited in its authority over tribes.

1213. Cook, Jessee. “Navajo Nation v. United States: Determining When Native American Tribes Can Sue the United States within a Trust Relationship.” Great Plains Natural Resources Journal 7 (Fall 2002–03): 233–43. This Court of Appeals decision permits a tribe “to recover monetary damages for a government breach of implied responsibilities,” based on the improper actions of Secretary of Interior Hodel in violation of the Indian Mineral Leasing Act. The court should not have awarded the Navajo monetary damages for proving that a trust relationship existed; the court should have demanded that a specific trust duty was breached.

1210. Carpenter, Leah J. “Policy Analysis of the Land into Trust Acquisition Provisions of the Indian Reorganization Act: Tribal Opportunities, Obstacles, and Opposition.” Wicazo Sa Review 15 (Spring 2000): 29–47. To convert non-trust into trust lands, tribes must be very careful to follow regulations and keenly listen to their non-Indian neighbors who may oppose or support the tribe’s decision. Opposition has created more problems than was intended by the IRA.

1214. Cook-Lynn, Elizabeth. “Editor’s Commentary.” Wicazo Sa Review 12 (Spring 1997): 5–7. Registers her discouragement about the continuing assault on sovereignty as evidenced by a recent Eighth Circuit Court of Appeals decision (South Dakota v. United States Department of the Interior), declaring the Secretary of the Interior’s acts of acquiring and placing lands in tribal trust illegal.

1211. Cave, Rodina. “Simplifying the Indian Trust Responsibility.” Arizona State Law Journal 32 (Winter 2000): 1399–1422. The traditional definition of the trust relationship between tribes and the U.S. is based on a paternalistic guardian–ward relationship dating to the Cherokee cases. It was not until 1965 that Congress permitted tribes to sue without the government doing it for them. Is this a special relationship or one of trust? If it is the latter, then tribes should have the right to

1215. Cross, Raymond. “The Federal Trust Duty in an Age of Indian Self-Determination: An Epitaph for a Dying Doctrine.” Tulsa Law Review 39 (Winter 2003): 369–97. 121

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Critical of United States v. Navajo because it continues the two-plane approach to trust doctrine issues. Cross urges a return to the Marshall-era decisions wherein the trust doctrine, with accompanying treaties, “asserts the federal trusts duty as a means to ensure the continued cultural and social survival of the Indian peoples.” 1216. Fine, Adele. “Off-Reservation Enforcement of the Federal–Indian Trust Responsibility.” Public Land Law Review 7 (Spring 1986): 117–33. Over the years, the courts have taken different legal paths to address the extent of federal trust responsibility for actions taken off the reservation that may affect tribal reservation communities. In the area of environmental statutes, the courts have the opportunity to strengthen the off-reservation trust responsibility. 1217. Fitzpatrick, Jeremy R. “The Competent Ward.” American Indian Law Review 28, no. 1 (2003–2004): 189–202. Neither the federal government nor tribes have benefited from the trust relationship. The federal government has mismanaged Indian lands and resources held in trust. Tribes should assume full management of these lands and resources and demand that the federal government serve only a supporting role. 1218. Fletcher, Carrie E. “Duties of the Federal Government as Trustee of Individual Indian Money Accounts.” George Washington Law Review 70 (April 2002): 453–58. In United States v. Mitchell, the Supreme Court decided the U.S. was liable for trust violations to tribal people. After Mitchell and Mitchell II, Congress passed the 1994 Indian Trust Management Reform Act to list congressional duties. In the Cobell case, the District of Columbia Circuit Court determined that the U.S. had a clear fiduciary responsibility to account for all monies in these accounts as part of its duties as trustee. 1219. Gibeaut, John. “Another Broken Trust.” ABA Journal 85 (September 1999): 40–47, 98–99. Elouise C. Cobell’s parents told her stories that the federal government owed them money from revenues earned on their trust property. Seeking justice, she filed a class action claim for loss of past revenues. 1220. Green, L. C. “North America’s Indians and the Trusteeship Concept.” Anglo-American Law Review 4 (April–June 1975): 137–62. Studies the origin, evolution, and application of the U.S. and Canadian trust relationships to tribal

peoples. John Marshall’s 1831 ruling developed the American trust concept while Canada looks to Kinlock v. Secretary of State for India (1895). 1221. Hall, Gilbert L. Duty of Protection: The Federal– Indian Trust Relationship. Washington, DC: Institute for the Development of Indian Law, 1979. Guide intended to assist tribal governments’ work within the borders of this relationship. 1222. Hamilton, James T. “Progressing Back: A Tribal Solution for a Federal Morass.” American Indian Law Review 27, no. 2 (2002–2003): 375–97. Cobell claims in Cobell v. Babbit that the federal government is in breach of its trust responsibility because it has mismanaged individual and tribal trust accounts. Hamilton argues that courts will not be able to solve this problem because the root causes of the “mess” are “the pernicious and discredited federal laws of allotment.” Tribes should be allowed to control their assets and decide how to compensate individuals. 1223. Harjo, Suzan Shown. “A Matter of Trust: The Trust Funds Case and How Two Native Lawyers See It.” Native Americas 18 (Fall/Winter 2001): 48–51. Plaintiff attorney Keith Harper views the Cobell case solely as a trust case. Kevin Gover believes that tribal people are going to have their “ship come in” and get wealthy. 1224. Harmon, George D. “The Indian Trust Funds, 1797–1865.” Mississippi Valley Historical Review 21 (June 1934): 23–30. When drafting treaties with tribal nations during these years, the U.S. often included provisions that established a trust relationship with tribal nations as payment for their land sales. Several instruments composed these trust funds including state and federal bonds. Tribes lost money when these funds were devalued. 1225. Indian Wardship. Revised edition. New York: Home Missions Council of North America, 1944. Small pamphlet describing tribal member wardship, the growth of wardship, citizenship, treaties, land and property rights, social security, and public opinion and wardship. Terminating wardship is the tone of this study. 1226. Johansen, Bruce E. “The BIA as Banker: “Trust” Is Hard When Billions Disappear.” Native Americas 14 (Spring 1997): 14–23. More than 300,000 individual Native Americans have IIM accounts and the tribes have 2,965 separate accounts held in trust with the U.S. as of 1992. In 1994, the BIA began its own investigation and discovered that many of these accounts had been

Trust Status, Guardianship, and Trust Funds

mismanaged. This mismanagement may account for $450 million dollars in the IIM accounts and $2.4 billion in tribal funds. NARF filed suit on behalf of the individuals making this the largest single mismanagement suit in federal history. 1227. Johansen, Bruce E. “The Trust Fund Mess: Where Has All The Money Gone?” Native Americas 21 (Fall and Winter 2004): 26–33. The Cobell trust fund accounting case has hit Native Americans hard. The monetary cost of trust fund mismanagement has escalated to extraordinary amounts. It is still not clear where the money went. 1228. Leventhal, Larry B. “American Indians—The Trust Responsibility: An Overview.” Hamline Law Review 8 (October 1985): 625–70. The trust responsibility of the federal government to tribal governments and people is the cornerstone of tribal nations’ relationship to the federal government. This responsibility originates in treaty, statute, or intent statements, but congressional intent must be specifically stated. Therefore, “courts will largely consider such matters on a case by case basis.” 1229. McAuliffe, Billee Elliott. “Forcing Action: Seeking to “Clean Up” The Indian Trust Fund: Cobell v. Babbitt.” Southern Illinois University Law Journal 25 (Spring 2001): 647–77. This lawsuit may open a new era of Indian law by using equitable relief to force the government to fulfill treaties, statutes and its trust responsibilities to allottees and heirs. 1230. McCoy, Padraic I. “The Land Must Hold the People: Native Modes of Territoriality and Contemporary Tribal Justifications for Placing Land into Trust Through 25 C.F.R. Part 151.” American Indian Law Review 27, no. 2 (2002–2003): 421–502. In 1980, 25 C.F.R. Part 151 established regulations governing the Secretary of the Interior’s power, established by the IRA, to convert lands into tribal and individual Indian trust lands. McCoy explains the land-into-trust concept and outlines the reasons why modern tribal communities aspire to have lands placed into trust. The Mesa Grande Band of Mission Indians in California serves as a case study. 1231. Monette, Richard A. “Governing Private Property in Indian Country: The Double-Edged Sword of the Trust Relationship and the Trust Responsibility Arising Out of Early Supreme Court Opinions and the General Allotment Act.” New Mexico Law Review 25 (Winter 1995): 35–64. The evolution of tribal law has created tension between “political-based “Trust Relationship” and property-based “Trust Responsibility.”

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1232. Nash, Douglas. “Remedies for a Breach of the Government–Indian Trust Duties.” New Mexico Law Review 1 (January 1971): 321–34. To eliminate the old pattern of Native Americans seeking justice from trust violations by appealing to the BIA, tribes can pursue avenues available in the courts. Statutes and court actions will put the individual tribal member in a better position for redress. 1233. Newton, Nell Jessup. “Indian Tribal Trust Funds.” Hastings Law Journal 27 (November 1975): 519–43. Manchester Band of Pomo Indians, Inc. v. United States and Te-Moak Bands of Western Shoshone Indians v. United States are two cases that offer alternative proposals on managing tribal funds. 1234. Newton, Nell Jessup. “Introduction.” Tulsa Law Review 39 (Winter 2003): 237–46. Discusses the importance of understanding the trust doctrine. There are several legal perspectives regarding study of this doctrine. 1235. “Rethinking the Trust Doctrine in Federal Indian Law.” Harvard Law Review 98 (December 1984): 422–40. Chief Justice John Marshall articulated the trust doctrine with no guidelines in 1831. Since then, courts have applied the flawed superior culture theory of taking care of others, thus permitting the U.S. to control tribal property. Four moral concepts are proposed—self-determination, promise keeping, the liberal freedom ideal, and public freedom—to redefine the trust doctrine to conform to other legal concepts. 1236. O’Brien, Sharon. “The Government–Government and Trust Relationships: Conflicts and Inconsistencies.” American Indian Culture and Research Journal 10, no. 4 (1986): 57–80. By alternately stressing either the federal–tribal government–government relationship or the later developed guardianship doctrine, federal Indian policy makers have been able to shift back and forth between support of tribal sovereignty and assimilation efforts. The guardianship doctrine should be viewed as an aspect of the government–government relationship, and cannot be emphasized separately. The federal government’s protectorate relationship with tribes did not imply a loss of tribal sovereignty. 1237. O’Brien, Sharon. “Tribes and Indians: With Whom Does the United States Maintain a Relationship.” Notre Dame Law Review 66, no. 5 (1991): 1461–94. The U.S. has treaty defined trust relationships and legislatively defined individual trust relationships. The U.S. has a trust responsibility but there is a contradiction since the tribes are “quasi sovereign.” To

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end inconsistencies, the U.S. must treat tribal people as indigenous people. 1238. Paterson, John M. R. and Roseman, David. “A Reexamination of Passamaquoddy v. Morton.” Maine Law Review 31, no. 1 (1979): 115–52. In 1975, the U.S. Court of Appeals ruled in Passamaquoddy that the U.S. had a trust relationship with this tribe, reasoning that the Trade and Intercourse Acts applied to all Indians. Congress intended these acts to apply only to Indian Country and not to outside tribal nations. The courts did not examine the large body of historical literature available on the Trade and Intercourse Acts when making its determination. 1239. Phipps, Eugenia Allison. “Feds 200, Indians 0: The Burden of Proof in the Federal/Indian Fiduciary Relationship.” Vanderbilt Law Review 53 (October 2000): 1637–85. In the post-Mitchell II era, the Supreme Court made a strong statement on maintaining the nation’s fiduciary responsibility to tribal America, but in subsequent lower court decisions, the courts have placed the entire burden of proof on the tribes for trust violations. 1240. Pierce, Richard J., Jr. “Judge Lamberth’s Reign of Terror at the Department of Interior.” Administrative Law Review 56 (Spring 2004): 235–62. Filed in 1996, Cobell v. Norton, concerning IIM accounts, includes a number of firsts. Judge Lamberth’s actions have hindered the Department of the Interior from conducting its duties. Pierce offers remedies to curb these excessive and abusive actions. 1241. Ragsdale, John W., Jr. “Indian Reservations and the Preservation of Tribal Culture: Beyond Wardship to Stewardship.” UMKC Law Review 59 (Spring 1991): 503–54. Tribes still need federal protection against outside encroachment, often from states. This protection could take place on a long moving scale using the goals of stewardship and allowing for the level of protection to be based on tribal need. 1242. Scrivner, Larry E. “Acquiring Land into Trust for Indian Tribes.” New England Law Review 37, no. 3 (2002–2003): 603–17. The acting Director of the BIA’s Office of Trust Responsibilities explains the involved procedure. Lands may be returned to trust to fulfill several federal obligations including supporting tribal selfdetermination, economic development, and providing tribal housing.

1243. Sheppard, Mary Jane. “Taking Indian Land into Trust.” South Dakota Law Review 44, no. 3 (1998–1999): 681–98. This is a guide for tribes on the Department of Interior’s regulatory process for placing lands into trust. This has become an important issue as tribes move to place lands into trust for gaming operations. South Dakota, opposing the spread of gaming outside the existing reservation boundaries, challenged Section 5 of the IRA. 1244. Sisk, Gregory C. “Yesterday and Today: Of Indians, Breach of Trust, Money, and Sovereign Immunity.” Tulsa Law Review 39 (Winter 2003): 313–53. The Mitchell decision, both I where the court rejected a breach of trust, and II where the court recognized the government’s responsibilities to tribal resource management, set the stage for contemporary trust doctrine cases. Two decades later, the Supreme Court used the same logic in United States v. Navajo Nation and United States v. White Mountain Apache. 1245. Skibine, Alex Tallchief. “Integrating the Indian Trust Doctrine into the Constitution.” Tulsa Law Review 39 (Winter 2003): 247–70. The trust doctrine has been ignored of late when litigating tribal interests in court. As a result, much of the legislation that reduces tribal sovereignty would be found unconstitutional if courts followed the Commerce Clause. This would eliminate legislation that was detrimental to tribal sovereignty. Congress’s plenary power should be restricted to the protection of tribal self-rule. 1246. Sterling, Everett W. “The Indian Reservation System.” Montana: Magazine of Western History 14 (April 1964): 92–100. Discusses the categorization of tribal people as wards of the federal government and the importance of the Indian agents in local politics, as well as reservation politics. 1247. Taliman, Valerie. “Standing Strong: Elouise Cobell’s Seige of Interior.” Native Americas 18 (Fall/Winter 2001): 52–55. Elouise Cobell has filed a class action lawsuit for BIA mismanagement of tribal trust funds. As a banker, Cobell knows the right and wrong way to handle tribal accounts. She wants an accurate accounting of the IIM accounts. 1248. Torgerson, Ray. “Sword Wielding and Shield Bearing: An Idealistic Assessment of the Federal Trust Doctrine in American Indian Law.” Texas Forum on Civil Liberties & Civil Rights 2 (Summer 1996): 165–94.

Trust Status, Guardianship, and Trust Funds

Considers the trust doctrine and the interplay with plenary powers of Congress. Discusses the trust doctrine’s importance in light of the growing shift from federal to state authority in the era of new federalism. New trust doctrine models could be developed. 1249. Torres, Gerald. “Indians, Natural Resources, and the Trust Responsibility.” Journal of Energy, Natural Resources & Environmental Law 14, no. 2 (1994): 279–94. Short history of the evolving trust relationship between the U.S. and tribal nations. 1250. Tsosie, Rebecca. “The Conflict between the “Public Trust” and the “Indian Trust” Doctrines: Federal Public Land Policy and Native Nations.” Tulsa Law Review 39 (Winter 2003): 271–311. There is a contradiction between the “Indian trust” and the “pubic trust” when these two doctrines collide on public lands. This is demonstrated in the court decisions involving the Free Exercise Clause where courts have failed to protect tribal trust interests in favor of the public’s trust relegating tribal trust to an equal footing with other American citizens. Sovereign tribes are treated as an interest group. Tsosie proposes several solutions to correct this conflict. 1251. Wilkins, David. “Convoluted Essence: Indian Rights and the Federal Trust Doctrine.” Native Americas 14 (Spring 1997): 24–31. The U.S. has a unique relationship with tribes known as the trust relationship that is intended to protect tribal sovereignty. The problem is that no consistent definition exists defining the boundaries of that trust relationship to insure that the U.S. is acting in the tribes’ best interests. 1252. Wilkins, David E. “‘With the Greatest Respect and Fidelity:’A Cherokee Vision of the ‘Trust Doctrine.’” Social Science Journal 34, no. 4 (1997): 495–510.

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The Cherokee cases articulated that trust relationship between the Cherokee and other tribes and the U.S. The Cherokees have developed strategies to perpetuate that trust relationship, as well as strategies to ward off U.S. attempts to eliminate their political and cultural standing. 1253. Wood, Mary Christina. “Indian Land and the Promise of Native Sovereignty: The Trust Doctrine Revisited.” Utah Law Review, no. 4 (1994): 1471–1596. The federal government continues to circumvent its trust responsibility to tribal peoples and their lands. At the same time tribal governments often give in to outside pressure to turn over their land-base resources for outside exploitation in the name of tribal self-determination. The major modern case in defining the government’s trust relationship is Mitchell I and II, both of which Wood analyzes. 1254. Wood, Mary Christina. “The Indian Trust Responsibility: Protecting Tribal Lands and Resources through Claims of Injunctive Relief against Federal Agencies.” Tulsa Law Review 39 (Winter 2003): 355–68. Trust doctrine claims fall under federal common law, not statutory claims. If courts continue to use the statutory approach to decide environmental claims, tribal peoples’ unique land relationships will be eliminated while broad powers are vested in administrative officials. 1255. Wood, Mary Christina. “Protecting the Attributes of Native Sovereignty: A New Trust Paradigm for Federal Actions Affecting Tribal Lands and Resources.” Utah Law Review, no. 1 (1995): 109–237. In the face of modern threats, the trust doctrine holds the potential to protect tribal lands, but it must incorporate the attributes necessary for the tribal community, including land, a tribal economy, selfrule, and cultural growth since all assist in preserving tribal uniqueness and separation.

Chapter 13 Federal Plenary Power

1256. Aleinikoff, T. Alexander. “Securing Tribal Sovereignty: A Theory for Overturning Lone Wolf.” Tulsa Law Review 38 (Fall 2002): 57–71. The tribal right to self-government is constitutionally protected. At the same time, “constitutive arrangements that are the product of deliberate processes and tribal popular approval” should be protected against “congressional alteration.” This approach would help limit congressional plenary power.

though the Constitution does not provide Congress with this power. 1260. Clark, Blue. Lone Wolf v. Hitchcock: Treaty Rights and Indian Law at the End of the Nineteenth Century. Lincoln: University of Nebraska Press, 1995. Lone Wolf was a critical moment in tribal legal history. The 1903 Supreme Court decision opened the door to greater federal plenary power over tribal affairs, including the congressional right to legislate tribal land decisions without tribal consent. Discussion includes the Jerome Agreement and the role of the Supreme Court.

1257. Anaya, S. James. “Brief of Lone Wolf, Principle Chief of the Kiowas, to the Supreme Court of the American Indian Nations.” Kansas Journal of Law and Public Policy 7 (Winter 1997): 117–45. In this moot trial brief for the tribes, Anaya finds “Congress . . . is legally incapable of releasing the United States from its obligations under the Medicine Lodge Treaty, and that the Court should find that the United States has violated the treaty.”

1261. Cleveland, Sarah H. “Powers Inherent in Sovereignty: Indians, Aliens, Territories, and the Nineteenth Century Origins of Plenary Power over Foreign Affairs.” Texas Law Review 81 (November 2002): 1–284. When Marshall wrote Johnson v. McIntosh, he reasoned that tribal rights inherently arose from international law, but he applied an extra constitutional logic to gain U.S. control based on discovery, a concept that had long been in disfavor. Treaties continued to erode tribal sovereignty and the courts began to use the Commerce Clause to justify federal authority over tribal nations. At the beginning of the twentieth century Lone Wolf completed the decline of the inherent doctrine powers in tribal America.

1258. Berkey, Curtis G. “United States–Indian Relations: The Constitutional Basis.” In Exiled in the Land of the Free: Democracy, Indian Nations, and the U.S. Constitution, edited by Oren Lyons, et al., 190–225. Santa Fe, NM: Clear Light Publishers, 1992. Studies the Constitution’s language to determine the framers’ true intent regarding constitutional federal authority over tribes. They intended to give the national government exclusive authority without state interference and recognized tribal inherent sovereignty. The later concept of congressional plenary power diverges from the Constitution’s intent.

1262. Clinton, Robert N. “There Is No Federal Supremacy Clause for Indian Tribes.” Arizona State Law Journal 34 (Spring 2002): 113–260. The federal Indian plenary doctrine “is nothing more than a raw assertion of naked colonial power ostensibly cloaked with an aura of constitutional legitimacy by mere judicial fiat.”

1259. Clark, Blue. “Lone Wolf v. Hitchcock: Implications for Federal Indian Law at the Start of the Twentieth Century.” Western Legal History 5 (Winter/Spring 1992): 1–12. The Supreme Court decided that Congress could abrogate treaties with tribes based on wardship even

1263. Estin, Ann Laquer. “Lone Wolf v. Hitchcock: The Long Shadow.” In The Aggressions of Civilization: 127

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Federal Indian Policy since the 1880s, edited by Sandra L. Cadwalader and Vine Deloria, Jr., 215–45. Philadelphia: Temple University Press, 1984. Narrative account of the Jerome Agreement and allotment process on the Kiowa, Comanche, and Kiowa–Apache reservation, and the Lone Wolf case. Tribes cannot rely on courts to protect their lands and governments from Congress. 1264. “Federal Plenary Powers in Indian Affairs after Weeks and Sioux Nation.” University of Pennsylvania Law Review 131 (November 1982): 235–70. As a court decision, Lone Wolf has “vague and extraordinarily unexamined foundations” as “courts have accepted without question the proposition that Congress has the constitutional authority to manage internal tribal affairs” and define relationships among sovereigns. The court developed a two-part test to ensure that Congress protect tribal interests. First, the court must determine if Congress enacted legislation for the trustee and if the legislation is beneficial or detrimental to tribal interests. Second, the court must examine whether Congress acted within its authority. 1265. Frickey, Philip. “Doctrine, Context, Institutional Relationships, and Commentary: The Malaise of Federal Indian Law through the Lens of Lone Wolf.” Tulsa Law Review 38 (Fall 2002): 5–36. Racism, subjugation, and the uncontrolled will of Congress describe Lone Wolf wherein the Supreme Court decided that Congress could abrogate an Indian treaty. 1266. Guhin, John P. “Brief of Ethan A. Hitchcock, Secretary of the Interior, to the Supreme Court of the American Indian Nations.” Kansas Journal of Law & Public Policy 7 (Winter 1997): 146–69. Tribal rights were not violated in this moot trial because Congress invoked its due process rights from its guardian position in making a decision for the ward. 1267. Harvey, Irene K. “Constitutional Law: Congressional Plenary Power Over Indian Affairs—A Doctrine Rooted in Prejudice.” American Indian Law Review 10, no. 1 (1982): 117–50 There is no constitutional source for plenary power over tribal affairs, but it is found in the Supreme Court’s interpretation that Indians were inferior and needed protection. The plenary doctrine emerged from prejudice and has since encouraged prejudicial attitudes toward tribal America. 1268. Hauptman, Laurence M. “Congress, Plenary Power, and the American Indian, 1870–1992.” In Exiled in the Land of the Free: Democracy, Indian Nations, and the

U.S. Constitution, edited by Oren Lyons, et al., 318–36. Santa Fe, NM: Clear Light Publishers, 1992. Discusses the history of plenary power and surveys twentieth-century federal Indian policies. The federal–tribal relationship must be altered to foster true self-determination and end paternalism. 1269. Laurence, Robert. “Learning to Live with the Plenary Power of Congress over the Indians Nations: An Essay in Reaction to Professor Williams.” Arizona Law Review 30, no. 3 (1988): 413–37. Robert A. Williams, Jr. assumed that plenary power is absolute when it is “without subject-matter limitation.” Unlike Williams, Laurence has some faith that Congress and the courts will use a delicate hand with plenary power. Both authors dislike Oliphant, but for different reasons, Laurence because ICRA was not applied and Williams because of its historical origins. 1270. “Lone Wolf v. Hitchcock 187 U.S. 553 (1903).” Kansas Journal of Law and Public Policy 7 (Winter 1997): 108–16. A reprint of the Supreme Court decision on this case. 1271. Newton, Nell Jessup. “Federal Power over Indians: Its Sources, Scope, and Limitations.” University of Pennsylvania Law Review 132 (January 1984): 195–288. The courts have deferred to congressional legislation pertaining to tribes. Choate v. Trapp, which involved an individual property right, not a tribal property right, provides one of the only judicial exceptions. John Marshall started building Congress’s plenary power in the discovery doctrine in 1823 and refined it through the Commerce Clause in 1832. From there, Congress became bolder and the courts upheld legislative actions. Congress passed the Major Crimes Act in 1885, and the next year the high court decided in Kagama that Congress had the power to legislate for the tribes. This trend reached its zenith with Lone Wolf in 1903. 1272. Pommersheim, Frank. “Lone Wolf v. Hitchcock: A Little Haiku Essay on a Missed Constitutional Moment.” Tulsa Law Review 38 (Fall 2002): 49–55. Examines the Supreme Court’s decision to expand Congress’s plenary power over tribal affairs in Lone Wolf, and compares that decision with the high court’s recent actions where the court is keeping the plenary power for itself. 1273. Prakash, Saikrishna. “Against Tribal Fungibility.” Cornell Law Review 89 (July 2004): 1069–1120. Congress’s plenary power lumps all tribes together, but each tribe must be understood on a case-

Federal Plenary Power

by-case basis. Some tribes may be under congressional plenary power, others fall under the Apportionment Clause, and more still find themselves under the territory and property clause that does not give the U.S. power over Indians. 1274. Prygoski, Philip J. “War as the Prevailing Metaphor in Federal Indian Law Jurisprudence: An Exercise in Judicial Activism.” Thomas M. Cooley Law Review 14, no. 3 (1997): 491–531. The plenary power doctrine, has its source in Congress’s war powers, is still the driving force in federal Indian law.

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investment change. This plenary power went beyond the Constitution and violates treaties. 1278. Wildenthal, Bryan H. “Fighting the Lone Wolf Mentality: Twenty-first Century Reflections on the Paradoxical State of American Indian Law.” Tulsa Law Review 38 (Fall 2002): 113–45. The Lone Wolf attitudes continue to influence the Supreme Court’s decisions. Wildenthal examines this ongoing trend and argues that government-togovernment relations are a better way to settle conflicts.

1276. Russell, Steve. “Honor, Lone Wolf, and Talking to the Wind.” Tulsa Law Review 38 (Fall 2002): 147–57. The Lone Wolf court took a colonialist approach and the sad aspect of this story is that there were other avenues available for the court to follow.

1279. Wilkins, David E. “The U.S. Supreme Court’s Explication of ‘Federal Plenary Power’: An Analysis of Case Law Affecting Tribal Sovereignty, 1886–1914.” American Indian Quarterly 18 (Summer 1994): 349–68. Traces the historical development and provides definitions of “federal plenary power” and “tribal sovereignty.” Determining the definition of plenary power to be used determines whether tribal sovereignty will be positively or adversely affected by court decisions. The last eighty years witnessed increasingly radical definitions of plenary power that were detrimental to tribal sovereignty.

1277. Singer, Joseph William, “Lone Wolf, or How to Take Property by Calling It a ‘Mere Change in the Form of Investment.’” Tulsa Law Review 38 (Fall 2002): 37–48. The allotment acts in question that were at the heart of the Lone Wolf decision altered relationships governing tribal–federal relations. Then the Supreme Court added more fuel to the fire, deciding that Congress, without tribal consent, can abrogate treaties, and that the land in question was not a taking, but an

1280. Williams, Robert A., Jr. “Learning Not to Live with Eurocentric Myopia: A Reply to Professor Laurence’s Learning to Live with the Plenary Power of Congress over the Indian Nations.” Arizona Law Review 30, no. 3 (1988): 439–547. In his reply to Laurence, Williams argues that lawyers must free themselves from the ethnocentric and cultural biases that tie them to the dominant society’s values. This is essential for tribal people to experience self-rule again.

1275. Royster, Judith V. “Forward: Look Back in Anger.” Tulsa Law Review 38 (Fall 2002): 1–3. Lone Wolf continues to cast a long shadow over tribal affairs and, despite the influence of this decision, there is little scholarly consensus about it.

Chapter 14 Tribal Governance, Constitutions, and Leadership

ing that there was no infringement to force a tribal retailer to collect a state tax.

1281. Agnew, Brad. “Wilma Mankiller (Cherokee).” In The New Warriors: Native American Leaders since 1900, edited by R. David Edmunds, 211–36. Lincoln: University of Nebraska Press, 2001. Scholars have focused too little on Mankiller’s years as tribal deputy chief and chief. She emphasized social assistance for her people, which led to criticisms that she did too little to promote economic development. She earned national attention as a strong tribal leader, and her leadership style stressed cooperation, not confrontation.

1285. Barsh, Russel Lawrence and Ronald R. Tropser. “Title I of the Indian Self-Determination and Education Assistance Act of 1975.” American Indian Law Review 3, no. 2 (1975): 361–95. Examines the strengths and weaknesses of the 1975 legislation, especially compacting. The best way for tribal Americans to control their destiny is to add an amendment to the Constitution insuring that tribal governments will remain forever parts of the federal system and that real self-determination will eliminate executive discretion in federal funds allocation.

1282. American Indian Lawyer Training Program. Indian Tribes as Governments. Oakland, CA: American Indian Lawyer Training Program, 1982. Examines the structure of tribal councils, tribal courts, tribal economic development, governing of tribal services, relationships with the BIA, and ICRA. Tribal governments’ success lay in the strengthening of their component institutions.

1286. Basehart, Harry W. and Tom T. Sasaki. “Changing Political Organization in Jicarilla Apache.” Human Organization 23 (Winter 1964): 283–89. The tribe ratified a constitution in 1937, and in 1960, the tribe amended it to incorporate provisions providing for greater self-rule. Instead of geographical representation, popular at-large elections were mandated and that changed the composition of the council. Now, younger members are elected at the expense of older members.

1283. Barreiro, José, ed. Indian Roots of American Democracy. Ithaca, NY: Akwe:kon Press, 1992. Essays by various authors taken from a 1987 conference at Cornell University asking about the Iroquois Great Law of Peace’s affects on American political philosophy and about the historical validity of oral tradition.

1287. Becker, Bidtah N. and Paul Spruhan. “Profile of the Law of the Navajo Nation.” Tribal Law Journal 2 (2001–2002): online. http://tlj.unm.edu/articles/ As a non-IRA tribe, the Navajo have no written constitution, but the tribal written code outlines the duties of the tribal executive, the council and the judiciary. 110 chapters are the local governing units and they form the council. The Local Governance Act of 1998 defined the relationship between the chapter officials and members. The Navajo code emphasizes traditional Navajo law.

1284. Barsh, Russel Lawrence. “The Omen: Three Affiliated Tribes v. Moe and the Future of Tribal SelfGovernment.” American Indian Law Review 5, no. 1 (1977): 1–73. Tribes were relying on federal litigation since Williams established a tribal sovereignty infringement test against state encroachment and that gave a false illusion of defeating state efforts to make reservation inroads. The Montana court turned a corner that tribal lawyers were not expecting in Moe, decid-

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1288. Bee, Robert L. “To Get Something for the People: The Predicament of the American Indian Leader.” Human Organization 38 (Fall 1979): 239–47. The Quechan chairman must manipulate a variety of political connections to get resources to bolster the tribe’s small financial standing. The people expect both universal and specific things from the chairman. 1289. Bee, Robert L. “Predicament of the Native American Leader: A Second Look.” Human Organization 49 (Spring 1990): 56–63. The first female tribal president at Quechan (Fort Yuma) survived a recall election. She was the victim of the get-mad-and-get-even political forum, and recall was the weapon of choice. A tribal leader must find jobs and other perks for tribal members to survive a term in office. To oust leaders is to make them learn what they did wrong and let them return. 1290. Bee, Robert L. “The Washington Connection: American Indian Leaders and American Indian Policy.” Indian Historian 12 (Winter 1979): 2–11. Good leaders establish as many contacts with federal agencies as they can to help their reservation communities. They network with BIA, Congress, and individual members of Congress as best they can despite the constraints that occur when their goals clash with the BIA’s. 1291. Benson, Bruce L. “Customary Indian Law: Two Case studies.” In Property Rights and Indian Economies, edited by Terry L. Anderson, 27–39. Lanham, MD: Rowman and Littlefield, 1992. Modern government and justice systems clash with traditional tribal law in that traditional law favored decentralization, it evolved in response to “demands for law and justice by members of small groups,” and was customary rather than authoritarian. Reciprocity and mutual benefit were key. Yurok and Comanche law serve as case studies. Modern tribal governments should “reconsider decentralized systems that emphasize individual rights, customary law, and decentralized mechanisms for defining and enforcing property rights.” 1292. Berkey, Curtis. “The Inherent Powers of Tribal Governments.” American Indian Journal of the Institute for the Development of Indian Law 2 (May 1976): 15–18. Discusses the wide range and extensive inherent powers of tribes, and urges tribal governments to use their powers and not permit the U.S. to take over tribal functions. 1293. Berthrong, Donald J. “Struggle for Power: The Impact of Southern Cheyenne and Arapaho ‘School-

boys’ on Tribal Politics.” American Indian Quarterly 16 (Winter 1992): 1–24. The late 1920s saw a younger group of educated tribal men move into positions of greater prestige and begin to share political power with the older leaders. These younger men contributed to divisiveness within tribal governance between 1928 and 1937. Berthrong also discusses the factional debate over the 1929 and 1937 tribal constitutions. 1294. Biolsi, Thomas. “Imagined Geographies: Sovereignty, Indigenous Space, and American Indian Struggle.” American Ethnologist 32 (May 2005): 239–59. Describes “modular” forms of tribal politics that explain tribal political struggles against the U.S. These forms include tribal reservation sovereignty, comanagement with state and federal agencies, national rights beyond the reservation, and dual rights as tribal and U.S. citizens. 1295. Black, Sherry Salway. “The People, Our People, are Our Greatest Asset.” Native Americas 19 (Fall/Winter 2002): 35–38. Stresses the importance of tribal self-governance. 1296. Blanchard, Rosemary Ann. “Developing Nation Models for American Indian Nation Building—Educating the Young Leaders of Our Internal Developing Nations.” Social Science Journal 34, no. 4 (1997): 423–35. Tribal government courses are central to tribal students’ economic, social, and political world. To make these courses more relevant, non-Western developing governments from outside the U.S. should be included as illustrations that former colonized people worldwide are developing for their own governments. 1297. Bonnifield, Paul. “The Choctaw Nation on the Eve of the Civil War.” Journal of the West 12 (July 1973): 386–402. Considers Choctaw efforts to gain U.S. and then C.S.A. statehood, debates over acceptance of the Skullyville Constitution and the Constitution of 1860, and the formation of increasingly harsh tribal slave codes. Such events indicated that the Choctaws “had succumbed to the dominant culture of the white man.” 1298. Borgman, Francis, O. F. M. “Henry Chee Dodge: The Last Chief of the Navaho Indians.” New Mexico Historical Review 23 (April 1948): 81–93. Biographical account written a year after Dodge’s death, memorializing the tribal leader as a great man and praising his bravery and conciliatory leadership. Any apparent inconsistencies in his governing are attributable to his desire to please both the U.S. gov-

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ernment and his tribe, as he attempted to do during the livestock reduction. 1299. Broome, Benjamin J. “Collective Design of the Future: Structural Analysis of Tribal Vision Statements.” American Indian Quarterly 19 (Spring 1995): 205–27. Structural analysis of vision statements made by various tribes at a series of workshops in 1991 and 1992. Commonly stressed themes included the need to encourage active involvement in politics, give tribal members a greater sense of ownership of their governments, and encourage individuals to meet their obligations to the tribe. Tribes were also particularly concerned about the need to improve the quality of life for their people and to preserve tribal identity. 1300. Brown, Kenny L. “A Progressive from Oklahoma: Senator Robert Latham Owen, Jr.” Chronicles of Oklahoma 62 (Fall 1984): 232–65. Biography of a mixed-blood Cherokee attorney who was an Indian agent and Oklahoma Senator. The article focuses on his national and international progressivism. 1301. Browne, William P. and Michael Davis. “Community Control and the Reservation: Self-Interest as a Factor Limiting Reform.” Ethnicity 3 (December 1976): 368–77. The leadership supports self-determination on the Isabella Reservation in Michigan. However, community control threatens the leaders’ self-interests. 1302. Brugge, David M. “Henry Chee Dodge: From the Long Walk to Self-Determination.” In Indian Lives: Essays on Nineteenth- and Twentieth-Century Native American Leaders, edited by L. G. Moses and Raymond Wilson, 91–110. Albuquerque: University of New Mexico Press, 1985. A tribal interpreter who became the first Navajo tribal council chairman, Dodge oversaw the tribe’s transition from isolation to involvement in the larger world. He walked, and acted as a mediator, between the traditional and non-Indian worlds. 1303. Burge, Moris. “Papago Self-Government.” American Indian 5, no. 2 (1949): 23–28. Their 1937 constitution delegates to the council two levels of authority, those actions that require secretary approval and those that do not. Burge describes the water and land pressures that the tribal council faces, as well the tribe’s decision to enter the leasing business after WWII. He is optimistic about the future of the tribal government, but its ultimate success depends on the willingness of the people to accept it.

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1304. Burnette, Robert. The Tortured Americans. Englewood Cliffs: Prentice-Hall, 1971. Burnette was a major political figure on the Rosebud Reservation in 1950s and 1960s. This former Marine returned to Rosebud and sought to instill a new sense of pride and tribal sovereignty, but instead found himself in battles with BIA officials and other tribal leaders representing different views. Burnette is very critical of the Tribal Land Enterprise and its role in keeping some tribal members from gaining lands for ranching. Tribal political campaigns and elections are also discussed. 1305. Carroll, Ahnawake. “Cherokee Nation Tribal Profile.” Tribal Law Journal 3 (2002–2003): online. http://tlj.unm.edu/articles/ Without a reservation, the Cherokee homeland today is a jurisdictional service area. Historically, the tribe did not have a centralized government structure, but they segregated into war and peace towns. Outside influence modified Cherokee law and by 1839 they had a centralized constitution. In 1975, they accepted a new constitution divided into a council, executive, and judiciary. The nation’s laws also became codified. 1306. Caywood, Elzie Ronald. “The Administration of William C. Rogers, Principal Chief of the Cherokee Nation, 1903–1907.” Chronicles of Oklahoma 30 (Spring 1952): 29–37. Rogers held the office in the last years of the Cherokee Nation prior to Oklahoma statehood. He served the tribe well and continued in a semi-official status as chief until 1917. 1307. Champagne, Duane. “The Crisis for Native Governments in the Twenty-first Century.” In The Future of Indigenous Peoples: Strategies for Survival and Development, edited by Duane Champagne and Isma’il Abu-Sa’ad, 205–18. Los Angeles: UCLA American Indian Studies Center, 2003. Discusses continuing obstacles facing tribal governments in their pursuance of self-determination and economic development. Flaws of the IRA and other models of governance are considered. Tribes must deal with how to “retain culture and selfdetermination within increasingly globalized market, political, and cultural relations.” 1308. Champagne, Duane. “Remaking Tribal Constitutions: Meeting the Challenges of Tradition, Colonialism, and Globalization.” In American Indian Constitutional Reform and the Rebuilding of Native Nations, edited by Eric D. Lemont, 11–34. Austin: University of Texas Press, 2006. Many tribes realize that they cannot successfully pursue economic development, assert their sovereignty,

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and preserve their cultures with existing constitutional governments. Reformed tribal governments should combine the elements of traditional, IRA, and U.S. forms of government. 1309. Champagne, Duane. Social Order and Political Change: Constitutional Governments among the Cherokee, the Choctaw, the Chickasaw, and the Creek. Palo Alto, CA: Stanford University Press, 1992. These tribes developed their constitutional governments at different times, thus providing the opportunity to analyze the conditions that allow the formation of stable governments. The Cherokee built a strong sense of national solidarity, while the other three tribal nations experienced less initial stability. 1310. Cheyfitz, Eric. “The Colonial Double Bind: Sovereignty and Civil Rights in Indian Country.” University of Pennsylvania Journal of Constitutional Law 5 (January 2003): 223–40 American Indian law is rooted in tribal sovereignty, under Congress’s plenary power. It departs from the civil rights of the individual found in the Lockean concepts of property, creating colonized communities in the forty-eight states and fostering tension between individual tribal civil rights and tribal sovereignty. This was the result of Congress forcing tribes to shift to a centralized government structure. 1311. Churchill, Ward. “American Indian Self-Governance: Fact, Fantasy, and Prospects for the Future.” In American Indian Policy: Self-Governance and Economic Development, edited by Lyman H. Legters and Fremont J. Lyden, 37–53. Westport, CT: Greenwood Press, 1994. A bleak assessment of IRA-style governance as true tribal self-governance, with the “final liquidation of Native America” being a real possibility. AIM has pointed to better alternatives including Russell Means’s TREATY platform from his 1984 campaign for Pine Ridge tribal presidency. 1312. Clifton, James A. “Factional Conflict and the Indian Community: The Prairie Potawatomi Case.” In The American Indian Today, edited by Stuart Levine and Nancy Oestreich Lurie, 184–211. Baltimore, MD: Penguin Books, Inc., 1970. Conservatives and progressives have vied for political control. Conservative resistance led the tribe to reject the IRA, giving the progressives an issue to rally around and encouraging a progressive–BIA alliance. Outside interference and court involvement have failed to resolve the ongoing split. 1313. Clute, James. “The New York Indians’ Right to SelfDetermination.” Buffalo Law Review 22 (Spring 1973): 985–1019.

It is easier today for tribes to work toward greater self-determination. Clute provides suggestions for the New York tribes to improve their government so that they can improve their relationships with each other and with the state. Some suggestions include government inventory functions, improved peacemaker court decree enforcement, recording the laws, and constitutional adoption. 1314. Cohen, Felix. “Indian Self-Government.” American Indian 5, no. 2 (1949): 3–12. Discusses the history of western philosophical support for tribal self-governance, but after 422 years of discussion, “there is so little Indian self government.” The reason is that despite the duty of the federal government to protect tribal self-rule, so little is being done to insure that the tribal states exist within the nation. This issue goes beyond tribal self-rule; it is an issue that strikes the future of American liberty. 1315. The Constitutions and Laws of the American Indian Tribes. Wilmington, DE: Scholarly Resources, 1975 This multi-volume series reproduces governing documents of different tribes. 1316. Coodey, Tiffany. “William Shorey Coodey: The Cherokee Statesman.” Chronicles of Oklahoma 75 (Fall 1997): 320–31. This “hero” understood that his tribe had to adjust to a U.S. legal and political system to retain its identity. He is credited with writing the Cherokee Constitution and he became the first president of the National Committee of the Cherokee Nation. 1317. Cornell, Stephen. Accountability, Legitimacy, and the Foundations of Native Self-Governance. Harvard Project on American Indian Economic Development, John F. Kennedy School of Government, Cambridge, MA: Harvard University, January 1993. Tribal governments must be accountable to their citizens and the federal government. The governing structures can range from a council to a general council, and different governments have differing amounts of conflict. To improve accountability, some tribes are implementing new institutions. 1318. Cornell, Stephen and Joseph P. Kalt. Where Does Constitutional Rule Really Come From? Constitutional Rule among the Modern Sioux and Apache. Harvard Project on American Indian Economic Development, John F. Kennedy School of Government, Cambridge, MA: Harvard University, July 1993. The Fort Apache and Pine Ridge people have similar IRA constitutions, but the Apache have moved forward while the Lakota have languished. The Apache constitution closely represents the pre-reservation government, while the Lakota constitution

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does not. Extra constitutional agreement is important in economic success. 1319. Cornell, Stephen and Joseph P. Kalt. “Where Does Economic Development Really Come From? Constitutional Rule among the Contemporary Sioux and Apache.” Economic Inquiry 33 (July 1995): 402–26. Seeks to explain the tie between economic development and contemporary tribal governance. The Apache political system is very close to the past government structure. On the other hand, the Lakota political system is the opposite of their indigenous government. The result is the Lakota government is economically counter-productive, while the Apache are making progress. 1320. Cox, Thomas R. “Tribal Leadership in Transition: Chief Peter Moctelme of the Coeur D’Alenes.” Idaho Yesterdays 23 (Spring 1979): 2–9, 25–31. Comments on the effects that land allotment and the Wheeler-Howard Act had regarding tribal land use and political leadership. Moctelme opposed these policies and was the last chief who led along traditional lines. Although tribal government functioned differently after the tribe’s eventual acceptance of Wheeler-Howard, modern leaders still share many characteristics of their predecessors. 1321. Debo, Angie. The Rise and Fall of the Choctaw Republic. Norman: University of Oklahoma Press, 1934. Tribal study of the post–Civil War era and the difficulty the tribe had maintaining its laws and government in the midst of increased white encroachment. The account continues through the 1893 Dawes Commission and the Atoka Agreement in 1898 in which they gave up their governing institutions and accepted allotment. 1322. Debo, Angie. The Road to Disappearance. Norman: University of Oklahoma Press, 1941. Similar to her work on the Choctaws, this book studies post–Civil War Creek history through the Dawes Commission and “the end of the tribe.” 1323. Denson, Andrew. Demanding the Cherokee Nation: Indian Autonomy and American Indian Culture, 1830–1900. Lincoln: University of Nebraska Press, 2004. Studies Cherokee political rhetoric after removal and tribal efforts to remodel their relationships with the U.S. These leaders were willing to adapt but they believed in Cherokee autonomy and nationhood. Discussion includes their views on railroad development and land allotment. 1324. Dewes, W., A. Laird, A. Martinez, and C. O’Hara. Managing Organizational Change: A Report to the

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Crow Tribe of Montana. Harvard Project on American Indian Economic Development, John F. Kennedy School of Government, Cambridge, MA: Harvard University, May 1988. The Crow Nation is on the verge of change that is based on the tribe’s awareness of its natural resource potential. The tribe lacks a plan to achieve these objectives. 1325. DuChateau, Andre Paul. “The Creek Nation on the Eve of the Civil War.” Chronicles of Oklahoma 52 (Fall 1974): 290–315. Includes discussion of developments in tribal governance and law such as legal codes related to slavery. Creeks were able to stay united in this era because of their open and tolerant attitudes toward each other and alien tribes, but the pressures of impending war would break that unity. 1326. Edmunds, R. David, ed. The New Warriors: Native American Leaders since 1900. Lincoln: University of Nebraska Press, 2001. Essays by various authors, each focusing on a specific activist and/or leader, most of whom worked to expand tribal sovereignty. 1327. Endreson, Douglas B. L. “Improving the Legislative Process in Indian Country through Use of Tribal Legislative Fora.” Stanford Law and Policy Review 12 (Spring 2001): 267–70. These are productive times for tribes as demonstrated by the tribal passage and enforcement of laws. It is also an unpredictable time as courts and Congress continue their attacks on tribal sovereignty. Strengthening tribal legislative actions is necessary for improving tribal sovereignty. 1328. Faber, William O. “Representative Government: Application to the Sioux.” In The Modern Sioux: Social Systems and Reservation Culture, edited by Ethel Nurge, 123–39. Lincoln: University of Nebraska Press, 1975. Tribal governments in Sioux country represent a blend of “inherited, imitated, and imposed organizational arrangements that have much in common with local governments in the underdeveloped nations.” Election procedures are often vague, often because pre-reservation governments had different election processes. 1329. Favor, Lesli J. The Iroquois Constitution: A Primary Source Investigation of the Law of the Iroquois. New York: Rosen Publishing Group, 2003. The Great Law of Peace was the Iroquois fundamental law and it bound the member nations together in a confederacy. Scholars have debated the influence this document had on American

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constitutional development. The Great Law of Peace is published in the appendix. 1330. Fay, George E., compiler and editor. Charters, Constitutions and By-Laws of the Indian Tribes of North America. Occasional Publications in Anthropology. Greeley, CO: Museum of Anthropology, University of Northern Colorado, 1967–1981. Series reprinting these tribal materials and divided into regionally focused volumes. 1331. Ferguson, T. J., E. Richard Hart, and Calbert Seciwa. “Twentieth Century Zuni Political and Economic Development in Relation to Federal Indian Policy.” In Public Policy Impacts on American Indian Economic Development, edited C. Matthew Snipp, 113–44. Albuquerque: Native American Studies Institute for Native American Development, University of New Mexico, 1988. Studies how Zunis developed their political institutions in relation to federal policy and how those institutions contributed to tribal economic development. Land has been a central political issue. The tribe has developed a qualified staff and the tribal government “has become economically as well as politically important in the lives of the Zuni people.” 1332. Ferrara, Peter J. The Choctaw Revolution: Lessons for Federal Indian Policy. Washington, DC: Americans for Tax Reform Foundation, 1998. Chief Phillip Martin provides the introduction to Ferrara’s story of the Mississippi Choctaw tribal government’s successes and their miraculous economic revival. Martin’s leadership was instrumental in the quest for self-determination and economic selfreliance. The tribe’s success should serve as “an excellent foundation on which to base a new vision of U.S. government Indian policy.” Specific federal reforms are outlined and the Choctaw economy and tribal government are described in detail. 1333. Fikes, Jay C. Reuben Snake, Your Humble Serpent: Indian Visionary and Activist. Santa Fe, NM: Clear Light Publishers, 1996. Snake comments on his service as Ho Chunk (Winnebago) tribal chairman (beginning in 1977), a Green Beret, an ordained NAC Roadman, president of the NCAI, National Co-Chairman of the Trail of Broken Treaties, and AIM National Chairman. In 1970, he led efforts, culminating in successful lawsuits, to prevent the U.S. Army Corps of Engineers from condemning tribal lands on the Missouri River waterfront. He was a strong proponent of tribal economic development and education. Snake took action after Smith to defend NAC religious freedoms and helped win passage of P.L. 103-344 in 1994.

1334. Fixico, Donald L. “Ben Nighthorse Campbell (Northern Cheyenne).” In The New Warriors: Native American Leaders since 1900, edited by R. David Edmunds, 263–79. Lincoln: University of Nebraska Press, 2001. The U.S. senator from Colorado stands by his convictions and has demonstrated “true Native American leadership.” As a legislator, he has expressed concern about reliance on gaming and has addressed bankruptcy reform and environmental issues. 1335. Fowler, Loretta. Arapahoe Politics, 1851–1978: Symbols in Crisis of Authority. Lincoln: University of Nebraska Press, 1982. Arapahoe leaders developed strategies to remake their political culture. As different federal laws were passed, such as allotment and the IRA, they remained united by interpreting symbols in new ways. They portrayed themselves as progressive early in the reservation life, and became more aggressive as the IRA and the ICC opened the door to legal representation. 1336. Fowler, Loretta. “Political Middlemen and the Headman Tradition among the Twentieth-Century Gros Ventres of Fort Belknap Reservation.” Journal of the West 23 (July 1984): 54–63. While the Gros Ventres can be considered “progressive” for their support of land allotment and the IRA, these actions were in fact, taken by a traditional government. This headman tradition, however, ended in the 1950s, and the councils of the 1960s therefore lacked the legitimacy and prestige of the earlier government. 1337. Fowler, Loretta. “Politics.” In A Companion to the Anthropology of American Indians, edited by Thomas Biolsi, 69–94. Malden, MA: Blackwell Publishing, 2004. Reviews the history of anthropological study of tribal politics, beginning with Lewis H. Morgan’s Iroquois work in 1851. Examinations of “systematic” anthropological treatments of the IRA and ANCSA are also discussed. Regional and cross-cultural studies are needed to understand how tribal governments have fared during colonialism. 1338. Fowler, Loretta. Tribal Sovereignty and the Historical Imagination: Cheyenne–Arapaho Politics. Lincoln: University of Nebraska Press, 2002. Successful economic development has not created greater sovereignty for the Southern Cheyenne and Arapaho. The relationship between the colonizer and the tribes has been marked by both domination and resistance. Among the issues considered are community and authority, land sales, and the New Deal.

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1339. Fowler, Loretta. “Wind River Reservation Political Process: An Analysis of the Symbols of Consensus.” American Ethnologist 5 (November 1978): 748–69. Contrary to the standard interpretations of northern plains reservation politics, Northern Arapahoe politics are a culture of conflict, but they have checks on their political leaders to curb political abuses, thus creating a political community of consensus. 1340. Friedlander-Shelby, Velda. “Racisim on the Flathead Reservation: A Correlation of the Confederated Salish and Kootenai Tribes’ Ability to Effectively SelfGovern.” In Indian Self-Governance: Perspectives on the Political Status of Indian Nations in the United States of America, edited by Carol J. Minugh, Glenn T. Morris, and Rudolph C. Ryser, 71–77. Kenmore, WA: Center for World Indigenous Studies, 1989. Racist opposition increases as the tribal government becomes more assertive, but the tribes seek to protect their own cultural identities and political integrity, not threaten their white neighbors. 1341. Garry, John. Saving the Reservation: Joe Garry and the Battle to be Indian. Seattle: University of Washington Press, 2001. Joseph R. Garry was born on the Coeur d’Alene Reservation in 1910 and died in 1975. He became tribal chairman, President of the Affiliated Tribes of the Northwest Indians, served six terms as chairman of the NCAI, and later became the first tribal leader to serve in the Idaho state house and senate. He served as the NCAI president during the termination years and pushed tribal leaders to participate in the American system, an idea that is growing today. 1342. Getches, David H. “Negotiated Sovereignty: Intergovernmental Agreements with American Indian Tribes as Models for Expanding First Nations SelfGovernment.” Review of Constitutional Studies 1, no. 1 (1993): 120–70. The use of inter-governmental negotiated agreements is one way to preserve tribal sovereignty and reduce conflicts that often end in litigation with other sovereigns. The essay examines negotiated hunting and fishing compacts, zoning regulations, and law enforcement. 1343. Gibson, Arrell M. “Constitutional Experiences of the Five Civilized Tribes.” American Indian Law Review 2 (Winter 1974): 17–45. Describes the nineteenth-century constitutional evolution of the Five Civilized Tribes. 1344. Goldberg-Ambrose, Carole. “Of Native American and Tribal Members: The Impact of Law on Indian Group Life.” Law & Society Review 28, no. 5 (1994): 1123–48.

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Western law has influenced tribal life and the development of Pan-Indian extra-tribal legal organizations. Today, tribal life is a mix of traditional norms, federal policies, and adaptation. Tribal members have understood the importance of defending tribal autonomy and eliminating state authority, but they do not always agree what direction to take. Members will often defend tribal government even if they disagree because of the greater threat to identity that states pose. 1345. Goldberg-Ambrose, Carole. “Tribal Governments and the Encounter.” In The Unheard Voices: American Indian Responses to the Columbian Quincentenarty, 1492–1992, edited by Carole M. Gentry and Donald A. Grinde, Jr., 157–64. Native Voices on the Columbian Quincentenary (1492–1992) Conference held at UCLA, October 9–10, 1992. Los Angeles: American Indian Studies Center, 1994. Robert Williams and others employing the Critical Legal Studies model argue that American law conflicts with tribal cultures and political/legal structures. Felix Cohen and Charles Wilkinson, in contrast to Williams, emphasize court decisions favorable to tribes. Goldberg-Ambrose concludes that the “war for tribal sovereignty will be won or lost on the ground, based on the grassroots success of tribal governments in exercising those powers,” rather than resting on Supreme Court decisions. 1346. Grinde, Donald A., Jr. “Iroquoian Political Concept and the Genesis of American Government.” In Indian Roots of American Democracy, edited by José Barreiro, 47–66. Ithaca, NY: Akwe:kon Press, 1992. Reasserts arguments made in his earlier book on the subject and criticizes those holding a different opinion as trying to stop the “de-Europeanizing” of U.S. history. 1347. Grinde, Donald A., Jr. The Iroquois and the Founding of the American Nation. San Francisco, CA: Indian Historian Press, 1979. In rebelling against the inequities of the parliamentary system, Benjamin Franklin, Thomas Jefferson, and other American founders were inspired by the Iroquois, in addition to past European political thinkers. 1348. Grinde, Donald A., Jr. “Iroquois Political Theory and the Roots of American Democracy.” In Exiled in the Land of the Free: Democracy, Indian Nations, and the U.S. Constitution, edited by Oren Lyons et al., 228–80. Santa Fe, NM: Clear Light Publishers, 1992. Ethnocentric historians have ignored Iroquois past influence upon European political theory, American governance, and their persistent influence today.

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Concludes, “American democracy is a synthesis of Native American and European political theories.”

in the state. Tribes have taken important steps toward self-sufficiency and self-governance.

1349. Haas, Theodore H. “Administration and Self-Government.” American Indian 5, no. 3 (1950): 40–47. Discusses how Indian Bureau administrative factors aid or hamper Indian self-government and recommends reforms to advance self-government.

1355. Helton, Taiawagi. “Nation Building in Indian Country: The Blackfoot Constitutional Review.” Kansas Journal of Law & Public Policy 13 (Fall 2003): 1–57. Based on a grass roots movement, the Blackfoot Nation drafted its own constitution based on international law, tribal sovereignty, and past precedents.

1350. Haberfield, Steven. “The Process of Constitutional Reform.” In American Indian Constitutional Reform and the Rebuilding of Native Nations, edited by Eric D. Lemont, 252–71. Austin: University of Texas Press, 2006. Discusses how tribal constitutional reforms should proceed by studying examples of success and failure and pointing out potential approaches and mistakes. Tribal members expect the process to be democratic, open and fair. 1351. Hagan, William T. Quanah Parker, Comanche Chief. Norman: University of Oklahoma Press, 1993. Parker was a political and economic progressive, a middleman, who simultaneously respected and worked to preserve Comanche culture. Parker’s involvement with cattle ranching, advocacy of the peyote religion, criticism of the Ghost Dance, and efforts to slow the land allotment process are covered. 1352. Hannah, D. Jay. “The 1999 Constitutional Convention of the Cherokee Nation.” Arizona State Law Journal 35 (Spring 2003): 1–19. The Cherokee have had several written constitutions and a strong sense of tribal self-rule. In 1999, the Cherokee Nation held a constitutional convention free from BIA control and drafted a new document for the people to ratify. 1353. Hargrett, Lester. A Bibliography of the Constitutions and Laws of the American Indians. Cambridge, MA: Harvard University Press, 1947. Locates printed tribal constitutions from mainly the nineteenth century. The Nez Percé wrote a document in 1842 and Winnebagos also drafted a constitution and even a law code in 1856 and 1868. This work dispels the myth of Indian constitutions being written only in the twentieth century except by the Five Civilized Tribes. 1354. Harris, Fred R., and LaDonna Harris. “American Indians and Tribal Governments.” In New Mexico Government, 3rd ed., edited by Paul L. Hain, F. Chris Garcia, and Gilbert K. St. Clair, 187–206. Albuquerque: University of New Mexico Press, 1994. Brief overviews of dual citizenship status, federal Indian policy, and New Mexico tribal history precede a topical overview of the nature of tribal governance

1356. Hill, Richard. “Continuity of Haudenosaunee Government.” In Indian Roots of American Democracy, edited by José Barreiro, 166–75. Ithaca, NY: Akwekon Press, 1992. They continue today to fight for their separate status and to follow the Great Law. 1357. Holm, Tom. “The Crisis in Tribal Government.” In American Indian Policy in the Twentieth Century, edited by Vine Deloria, Jr., 135–54. Norman: University of Oklahoma Press, 1985. Modern elected tribal governments often contrast with traditional concepts. The crisis “could very well be a produce of political centralization in response to colonialism and consequent economic problems.” Holm’s analysis focuses on the Oglalas of Pine Ridge and the Creeks of Oklahoma. 1358. Hoover, Herbert T. “Yankton Sioux Experience in the ‘Great Indian Depression,’ 1900–1930.” In The American West: Essays in Honor of W. Eugene Hollon, edited by Ronald Lora, 53–71. Toledo, OH: University of Toledo, 1980. The tribe’s depressed condition during these years is most attributable to the federal agents’ assault on the chiefs’ and headmen’s governing authority. This lack of leadership compounded problems with allotment and the sale of surplus lands. 1359. Hoxie, Frederick E. “Crow Leadership Amidst Reservation Opposition.” State and Reservation: New Perspectives on Federal Indian Policy, edited by George Pierre Castile and Robert L. Bee, 38–60. Tucson: University of Arizona Press, 1992. The Crow are used as a representative example of how tribes survived as political and cultural entities despite the oppressive reservation system. They did so from the 1880s to the 1930s by adapting their traditional structures in ways that allowed them to defend their traditions. Tribal leaders courted internal support while attempting to satisfy federal government expectations. 1360. Hoxie, Frederick E. “The History of American Indian Leadership: An Introduction.” American Indian Quarterly 10 (Winter 1986): 1–3.

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Introduction to articles in a special issue stressing that it is necessary to study the intricacies of tribal political and social life before attempting to interpret tribal political actions or institutions. 1361. Hoxie, Frederick E. and Tim Bernardis. “Robert Yellowtail (Crow).” In The New Warriors: Native American Leaders since 1900, edited by R. David Edmunds, 55–77. Lincoln: University of Nebraska Press, 2001. The Crow tribal chairman and agency superintendent proved a strong defender of tribal interests against those of unfriendly ranchers, senators and presidents. He was the first successful Crow leader who had not gained his influence in physical battle. He had good bicultural skills, as well as personal characteristics that helped him gain influence and promote tribal sovereignty. 1362. Idleman, Scott C. “Multiculturalism and the Future of Tribal Sovereignty.” Columbia Human Rights Law Review 35 (Summer 2004): 589–660. Tribal leaders should not align themselves too clearly with the multicultural movement. This movement may promise many things, but in the end will undermine tribal legal standing. 1363. “An Interview with Peter MacDonald.” American Indian Journal of the Institute for the Development of Indian Law 5 (June 1979): 11–18. This interview took place after MacDonald was elected to an unprecedented third term as chairman of the Navajo Nation. MacDonald discusses federal and tribal funding of the Navajo Nation and his opposition to BIA mineral leasing practices and royalty rates. 1364. Iverson, Peter. “Peter MacDonald.” In American Indian Leaders: Studies in Diversity, edited by R. David Edmunds, 222–41. Lincoln: University of Nebraska Press, 1980. MacDonald’s experiences with Office of Navajo Economic Opportunity provided him the foundation for his political career. He endeavored to protect tribal resources and helped make the Navajo Nation a stronger political force in the region. 1365. Iwamoto, Kim Coco. “Pueblo of Laguna Tribal Government Profile.” Tribal Law Journal 2 (2001–2002): online. http://tlj.unm.edu/articles/ The 1908 constitution united six villages and the preamble preserved traditional custom. All office holders are to follow traditional standards. Traditional law is very important in settling disputes, especially at the local level, even though a court hears contemporary cases.

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1366. Jacobs, Renée. “The Iroquois Great Law of Peace and the United States Constitution: How the Founding Fathers Ignored the Clan Mothers.” American Indian Law Review 16, no. 2 (1991): 497–531. The institutionalized elevated status of women in Iroquois society is an important topic to study as it contrasts the Iroquois legal and social system with those of their neighbors. Lacking a paternal hierarchy, the women were not kept on the edge of poverty. 1367. Jensen, Erik M. “The Imaginary Connection between the Great Law of Peace and the United States Constitution: A Reply to Professor Schaaf.” American Indian Law Review 15, no. 2 (1990): 295–308. Rejects the idea that the nation’s leaders drew on the Five Nations’ government structure for inspiration for the Constitution. 1368. Johansen, Bruce E. Forgotten Founders: How the American Indian Helped Shape Democracy. Boston, MA: Harvard Common Press, 1982. Iroquois and other American Indians helped shape Benjamin Franklin’s political ideology and thus American ideology. Iroquois law and governance included such ideals as freedom of expression and broad political participation. 1369. Johnson, Edward C. “Issues: The Indian Perspective.” In Great Basin, volume 11, edited by Warren L. D’Azevedo, Handbook of North American Indians, general editor William C. Sturtevant, 592–600. Washington, DC: Smithsonian Institution, 1986. Surveys issues of concern to tribal leaders in the Great Basin during the 1970s and 1980s, including treaties and agreements, hunting rights, water rights, jurisdiction, economic development, social development, education, and tribal leadership. 1370. Johnson, Tadd M. and James Hamilton. “SelfGovernance For Indian Tribes: From Paternalism to Empowerment.” Connecticut Law Review 27 (Summer 1995): 1251–79. Tribal sovereignty and the federal trust responsibility have created tensions between two aspects of federal Indian law. The passage of the Tribal SelfGovernance Demonstration Project Act in 1994 was a congressional effort to empower tribes. The tribes were excited and the experiment demonstrated the newfound potential for “compatibility of tribal sovereignty and the federal trust responsibility.” 1371. Kalt, Joseph. “Constitutional Rule and the Effective Governance of Native Nations.” In American Indian Constitutional Reform and the Rebuilding of Native Nations, edited by Eric D. Lemont, 184–219. Austin: University of Texas Press, 2006.

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Tribes must endeavor to govern well rather than simply pursuing the right to self-governance. Doing so often requires constitutional reforms given that many currently rely on constitutions introduced by outsiders. Kalt considers whether constitutions are necessary, what reformed constitutions must do to gain legitimacy, and what alternatives are available to tribes attempting to govern in a practical way while also matching their governments with their cultural values.

Kennedy School of Government, Cambridge, MA: Harvard University, 1989. Lack of defined procedures in tribal personnel manuals is a problem for tribal officials seeking disciplinary actions and employee appeals. This allows elected officials to move into these areas and exert political pressure. This study focuses on the Hualapai and encourages clarification, standardized procedures, removal of elected officials, and a new appeals structure.

1372. Kelton, Paul. “William Penn Adair: Cherokee Slaveholder and Indian Freedom Advocate.” Chronicles of Oklahoma 77 (Spring 1999): 22–53. Adair was a mixed-blood Cherokee who lobbied against creation of Indian Territory, instead favoring Cherokee freedom of self-government. Territorial organization threatened tribal self-rule and the tribal land base. The tribe elected him as assistant principle chief in 1879. He was also keenly aware of how a majority could dominate a minority and was thus more fervent in his later defense of freedom.

1377. Lassiter, Luke Eric. “‘Who Am I? I Am the One Who Sits in the Middle’: A Conversation with Billy Evans Horse, Former Kiowa Tribal Chairman (1982–1986, 1994–1998).” American Indian Quarterly 23 (Spring 1999): 59–69. He earned his name by sitting in the middle at peyote meetings, became tribal chairman, and increased tribal assets through a strong economic development program that focused on empowering tribal people.

1373. Kersey, Harry A., Jr. “Howard Tommie (Seminole).” In The New Warriors: Native American Leaders since 1900, edited by R. David Edmunds, 171–92. Lincoln: University of Nebraska Press, 2001. Tommie served as tribal chairman for the Seminole Tribe of Florida in the early phase after formation of a tribal government in 1957. During his tenure, the tribe transitioned from a state of poverty and fragmentation to being a “unified tribe with a sophisticated government, secure in its newly confirmed sovereignty.” He successfully, if perhaps too hastily in the eyes of more conservative tribal members, took advantage of self-determination policy. 1374. Kirchner, Grace. “The Revival of Tribal Sovereignty for the Muscogee Nation.” Law & Anthropology 5 (1990): 357–73. The U.S. slowly dismantled the Muscogee tribal government during the nineteenth and twentieth centuries. Several cases, including Harjo and Muscogee, helped revive tribal government in the late twentieth century. The latter case reinstated the tribe’s court system, leading to the drafting of a new constitution. 1375. Knight, Oliver. “History of the Cherokees, 1830–1846.” Chronicles of Oklahoma 34 (Summer 1956): 159–82. Focuses on Cherokee inner-tribal conflict and the effort to restore order and establish a constitutional government in the postremoval era. 1376. Koehler, Marc. When Things Go Wrong: Disciplinary Policies for Tribal Departments. Harvard Project on American Indian Economic Development, John F.

1378. LaVelle, John P. “Strengthen Tribal Sovereignty through Indian Participation in American Politics: A Reply to Professor Porter.” Kansas Journal of Law & Public Policy 10 (Spring 2001): 533–80. In response to Robert B. Porter’s essay that advocates tribal leaders’ retreat from the American political process, LaVelle argues that this is the most important battle and that tribal leaders must enter the fray. 1379. Legters, Lyman H. and Fremont J. Lyden eds. American Indian Policy: Self-Governance and Economic Development. Westport, CT: Greenwood Press, 1994. Essays by various authors relating to selfgovernance and economic self-sufficiency, the latter, according to the editors, being necessary for the fulfillment of the former. 1380. Lemont, Eric, ed. American Indian Constitutional Reform and the Rebuilding of Native Nations. Austin: University of Texas Press, 2006. Essays by various authors from different disciplines and firsthand accounts by tribal leaders on the reform process. Lemont stresses that these reforms aim to realign tribal governments with tribal values. 1381. Lemont, Eric. “Overcoming the Politics of Reform: The Story of the Cherokee Nation of Oklahoma Constitutional Convention.” American Indian Law Review 28, no. 1 (2003–2004): 1–34. Discusses the 1999 Cherokee constitutional reform process conducted by an independent constitution commission after the tribal government had split and ceased to function effectively. The reform process encouraged “maximum citizen education and participation.” Their success in this overall effort,

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and in dealing with specific challenges such as determining the meaning of citizenship and methods for achieving separation of powers, serves as a positive model for other nations interested in doing the same.

approval because they wanted to end the Bureau’s involvement in tribal affairs. They wrote their first constitution in 1978, but it was not approved by the BIA. They cut all references to secretarial approvals.

1382. Lemont, Eric. “Realizing Constitutional Change through Citizen Participation.” In American Indian Constitutional Reform and the Rebuilding of Native Nations, edited by Eric D. Lemont, 237–51. Austin: University of Texas Press, 2006. Tribal citizens often do not participate in constitutional reform efforts because of the contrast between many constitutional governments and traditional values, the fact that many people do not believe the constitution will affect them in their daily lives, mistrust of the reform process, and the simple fact that many do not have the time or ability to participate.

1387. Lopach, James J., Margery Hunter Brown, and Richmond L. Clow. Tribal Government Today: Politics on Montana Indian Reservations. Boulder: University of Colorado Press, revised edition, 1998. Examines the dynamics that drive contemporary tribal politics on Montana reservations and among the landless people and the political character that defines each reservation’s political culture. Chapters include a discussion of each reservation in Montana, a general discussion of tribal politics, and federal Indian law and tribal politics.

1383. Lennon, Noreen C. “Department of Interior Authorized to Review ‘Final’ Decisions of Tribal Election Board and to Invalidate Tribal Election Based on Eligibility Disputes in Shakopee Mdewakanton Sioux (Dakota) Community v. Babitt.” Creighton Law Review 31 (February 1998): 527–69. The U.S. Eighth Circuit Court of Appeals declared “that the Secretary of the Interior had the authority to invalidate a tribal election based on eligibility challenges and to review eligibility determinations post election” in this 1997 case. The court was in conflict with the stated goals of the IRA that stressed selfgovernance and tribal rights to certify elections. 1384. Lewis, Anna. “Camp Napoleon.” Chronicles of Oklahoma 9 (December 1931): 359–64. Realizing that the Confederacy had used them as a buffer, leaders of the Five Civilized Tribes met to form an Indian league for mutual protection. Their compact is excerpted. 1385. Lewis, David Rich. “Reservation Leadership and the Progressive–Traditional Dichotomy: William Wash and the Northern Utes, 1865–1928.” Ethnohistory 38 (Spring 1991): 124–40. Wash was a transitional type informal leader (he did not gain a formal political office) who served as a middleman in the early reservation years. He neither fully typified the definition of a “progressive” or “traditional” leader. Too often scholars rely on the “traditional” versus “progressive” dichotomy in Native biographies. More complex scholarly approaches are necessary. 1386. Lewis, Jim. “Big Pine Band Declares Its Independence.” Wassaja/The Indian Historian 13 (March 1980): 45–46. The Big Pine Band of Paiute-Shoshone drafted a new constitution without the Secretary of Interior’s

1388. Loudbear, Richard. “Indian Country Politics: Theories of Operation and a Strategy for the Nonviolent Seizure of Political Power.” American Indian Quarterly 31 (Winter 2007): 66–88. Focuses on the Menominee Indian Tribe of Wisconsin and stresses the importance of making tribal members aware of the critical, but Machiavellian, individuals within a tribal community who should be removed from office. The Menominee should replace their constitution, eliminate the power that specific individuals have over tribal affairs and gain key BIA individual’s support. 1389. Lowe, Marjorie J. “W. W. Keeler and Cherokee Renewal.” Chronicles of Oklahoma 76 (Summer 1996): 116–29. Keeler provided dedicated and determined leadership between 1949 and 1975 as a Cherokee chief and CEO of Phillips Petroleum Company. His efforts helped the tribe survive economically, promote sovereignty, and continue renewal efforts implemented by his predecessor. 1390. Lubick, George M. “Peterson Zah: A Progressive Outlook and a Traditional Style.” In Indian Lives: Essays on Nineteenth- and Twentieth-Century Native American Leaders, edited by L. G. Moses and Raymond Wilson, 189–216. Albuquerque: University of New Mexico Press, 1985. As Navajo tribal chairman and the first so-named tribal president in the 1980s and 1990s, Zah “represented a unique blend of the traditional and progressive in modern Navajo culture” and whose actions and values were based on his traditional upbringing. In earlier years, Zah had worked for the DNA legal aid services. 1391. Lucke, Thomas W., Jr. “Indian Reorganization of Values.” Indian Historian 10 (Spring 1977): 43–47.

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Tribal communities have had their own systems of jurisprudence and governance. The imposition of western democratic institutions has not changed some tribal methods of election and governance. Some Pueblos still elect their leaders in traditional manners. 1392. Luna, Eileen M. “The Impact of the Unfunded Mandates Reform Act of 1995 on Tribal Governments.” American Indian Law Review 22, no. 2 (1997–1998): 445–74. Tribes, like states, are the victims of unfunded federal mandates and have an interest in reforming this practice. Passage of the 1995 Unfunded Mandate Reform Act makes it clear that Congress should use plenary power with care because the unfunded mandates hinder tribal governments from doing their duties, while at the same time providing opportunities for tribes. 1393. Lupe, Ronnie. The Challenges of Leadership and Self-Government: A Perspective from the White Mountain Apache. Harvard Project on American Indian Economic Development, John F. Kennedy School of Government, Cambridge, MA: Harvard University, October 1992. Chairman Lupe of the White Mountain Apache describes the water rights, federal law enforcement, and Indian gaming issues that are facing his reservation and its residents. 1394. Lyden, Fremont J. and Ernest G. Miller. “Designing a Tribal Organization for Self-Governance.” In American Indian Policy: Self-Governance and Economic Development, edited by Lyman H. Legters and Fremont J. Lyden, 15–35 Westport, CT: Greenwood Press, 1994. The authors offer very specific recommendations on how to revise a tribal administrative organization and tribal business councils for the purposes of asserting self-governance. Flow charts serve as illustrations.

Brief profiles of nine leaders from the late nineteenth through the mid-twentieth centuries. Laura Minne Cornelius Kellogg, a land claims advocate, Lydia Wheelock Powless, the first elected tribal secretary for the Wisconsin Oneidas, and Irene Metoxen Moore, the first Oneida Tribal Chairperson (elected in 1963), are included. 1397. MacDonald, Peter and Ted Schwarz. The Last Warrior: Peter MacDonald and the Navajo Nation. New York: Orion Books, 1993. Autobiography covering the political career of former Navajo chairman Peter McDonald. The story begins with the early years on the reservation, follows him through his military career, and the completion of his engineering degree at the University of Oklahoma. He returned home and became a leading tribal politician, but events soon took another course and a Navajo court convicted him of tribal campaign irregularities, forcing him to spend six years in a Navajo jail. 1398. Macklem, Patrick. “Distributing Sovereignty: Indian Nations and Equality of Peoples.” Stanford Law Review 45 (May 1993): 1311–67. A racial and hostile backlash against greater sovereignty has harmed tribal governments, but sovereignty is the very strength that tribal governments must rely on. Tribal people have based their self-rule on equality and that should insulate them from outside racial attacks. 1399. Mankiller, Wilma and Michael Wallis. Mankiller: A Chief and Her People. New York: St. Martin’s Press, 1993. From Alcatraz to the Bell community project, this story incorporates not only the political career of Wilma Mankiller, but also the story of the Cherokee Nation. During the course of her life, she had a medical misfortune that invigorated her to move forward, becoming deputy chief and finally principle chief of the Cherokee Nation.

1395. Lyons, Oren, et al. Exiled in the Land of the Free: Democracy, Indian Nations, and the U. S. Constitution. Santa Fe, NM: Clear Light Publishers, 1992. Multiple-authored essays, with a foreword by Peter Matthiessen and Preface by Daniel K. Inouye, arguing that Indian nations influenced the Western democratic tradition and writing of the U.S. Constitution and Bill of Rights.

1400. Massad, Anthony M., Robert A. Layden, and Daniel G. Gibbens. “The Massad Commission Report to the Tribal Council of the Cherokee.” American Indian Law Review 23, no. 2 (1998–1999): 375-408. The full text of the Massad Commission Report reviewing the rights, duties, and powers of the three branches of Cherokee government.

1396. McLester, Thelma Cornelius. “Oneida Women Leaders.” In The Oneida Indian Experience: Two Perspectives, edited by Jack Campisi and Laurence M. Hauptman, 108–25. Syracuse, NY: Syracuse University Press, 1988.

1401. Maxwell, Amos. “The Sequoyah Convention.” Chronicles of Oklahoma 28 (Summer 1950): 161–92; cont. 28 (Autumn 1950): 299–340; later published as The Sequoyah Constitutional Convention. Boston, MA: Meador Publishing, 1953.

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Account of the 1905 effort of the Five Civilized Tribe to draft a constitution for the proposed State of Sequoyah. Maxwell views the failed effort to gain Congressional support for the State an example of a stronger people overwhelming a weaker people. A short appendix lists involved parties. 1402. Megehee, Mark K. “Creek Nativism since 1865.” Chronicles of Oklahoma 56 (Fall 1978): 282–97. As Creek traditional ways eroded, a group of mostly full-blood traditionalists struggled to maintain their tribal identity, their control of tribal government, and to impede the allotment process. Even after their tribal government was dissolved in 1906, their efforts continued. They welcomed the opportunities that the 1936 Oklahoma Indian Welfare Act offered them to regain some semblance of selfgovernance and engage in communal land tenure. 1403. Meidinger, Errol E. “Reconstituting Haudenosaunee Law, Sovereignty and Governance.” Buffalo Law Review 46 (Fall 1998): 799–804. It is ironic that the Western liberal tradition grew in a horizontal European monarch tradition while the Iroquois Haudenosaunee flourished in a vertical tribal society without giving power to one leader. The Iroquois liberal tradition nearly died as Western liberal thought was growing. 1404. Meredith, Howard. “Cultural Conservation and Revival: The Caddo and Hasinai Post-Removal Era, 1860–1902.” Chronicles of Oklahoma 79 (Fall 2001): 278–87. The Caddo and Hasinai people found ways to revive their culture after their 1859 removal to Indian Territory. They “continued to develop civil governance based on societal differentiation, social and political solidarity, world view, institutional and economic traditions, as well as political culture and values.” 1405. Meredith, Howard. Dancing on Common Ground: Tribal Cultures and Alliances on the Southern Plains. Lawrence: University of Kansas Press, 1995. Study of past and present intertribal alliances and politics, which, like tribal politics, “has a mixture of conflict and accommodation.” The focus of the modern portion is on efforts for self-determination and self-sufficiency. Intertribal communication is crucial. 1406. Meredith, Howard. Modern American Tribal Government and Politics. Tsaile, AZ: Navajo Community College Press, 1993. Describes the organization and operation of tribal governments. Chapter titles include the “Social and Economic Context of Tribal Government and Politics,” “Constitutional Framework,” “Tribal Council,”

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“Administration of Justice,” “Public Finance,” and “Intergovernmental Relations.” 1407. Meredith, Howard L. and Vynola Newkumet. “Melford Williams: Caddo Leadership Patterns in the Twentieth Century.” Journal of the West 23 (July 1984): 64–69. Williams successfully incorporated the traditional leadership roles of the cah-di and nit-tso-sah-doscha-ah into his role as tribal chairman. He therefore serves as an example of continuity between traditional forms of government and post-IRA tribal government. 1408. Metcalf, P. Richard. “Who Should Rule at Home? Native American Politics and Indian-White Relations.” Journal of American History 61 (December 1974): 651–65. Writers must eliminate vague terms such as “conservative” and “progressive” and understand that tribal cultures are always in a state of flux. 1409. Meyer, Melissa. “Warehousers and Sharks: Chippewa Leadership and Political Factionalism on the White Earth Reservation, 1907–1920.” Journal of the West 23 (July 1984): 32–45. The “mixed bloods” held a more privileged position on the reservation because the federal government had refused to allow traditional Chippewa leadership structures to maintain their positions after the tribe was removed there. The “full bloods” felt compelled to act against the “mixed blood” faction, which had taken advantage of their position to gain better allotments and sell away valuable timber resources. The factions had less to do with blood quotas than with economic and political behavior. 1410. Miller, Robert J. “American Influence on the United States Constitution and Its Framers.” American Indian Law Review 18, no. 1 (1993): 133–60. Considers tribal contributions to the founding fathers’ debates, their understanding of tribal political theory, and whether they incorporated tribal concepts in the Constitution. 1411. Milligan, James C. and L. David Norris. “The Last Choctaw Execution: A Case of Law and Disorder.” Chronicles of Oklahoma 73 (Winter 1995–1996): 386–403. The tribe had an effective governmental and legal system despite arguments to the contrary by those at the end of the nineteenth century who advocated the abolition of their government. A case involving Silon Lewis resulted from violence occurring during the 1892 election. While advocates for ending tribal governance used the case to their advantage, it serves

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better to illustrate the Choctaws’ deep reverence for law and order.

islative branches be defined. This three-branch reform created checks and balances.

1412. Minugh, Carol J., Glenn T. Morris, and Rudolph C. Ryser, eds. Indian Self-Governance: Perspectives on the Political Status of Indian Nations in the United States of America. Kenmore, WA: Center for World Indigenous Studies, 1989. Essays by various authors focus on the nature and extent of Indian self-governance and propose possible solutions for problems in U.S.–tribal relations.

1418. Morton, Ohland. “The Government of the Creek Indians.” Chronicles of Oklahoma 8 (March 1930): 42–64; cont. 8 (June 1930): 189–225. Traces the history of Creek governance, treatymaking, and tribal–federal relations up to 1908. The tribal constitution and other documents are excerpted.

1413. Mize, Richard. “Black, White, and Read: The Muskogee Daily Phoenix’s Coverage of the Sequoyah Statehood Convention of 1905.” Chronicles of Oklahoma 82 (Summer 2004): 222–39. Analyzes the newspaper accounts to offer details on the Five Civilized Tribes’ constitutional convention for the proposed State of Sequoyah. The newspaper’s editor pushed for single statehood. 1414. Mohawk, John C. “Indians and Democracy: No One Ever Told Us.” In Exiled in the Land of the Free: Democracy, Indian Nations, and the U. S. Constitution, edited by Oren Lyons, et al., 43–71. Santa Fe, NM: Clear Light Publishers, 1992. Indigenous cultures influenced the rise of American democracy but Eurocentric historians have obscured this reality. 1415. Mohawk, John C. “The Quality of Leadership.” Native Americas 19 (Fall/Winter 2002): 49–54. Tom Porter was a member of the Mohawk White Roots of Peace in the 1960s, which advocated working with many different communities, educating everyone about tribal life and respecting Indian identities. Like Porter, Wilma Mankiller is a model Indian and former principle leader of the Cherokee Nation. 1416. Moore, John H. “The Mvskoke National Questions.” Science and Society 52 (Summer 1988): 163–90. In reviewing the issue of tribal nationalism, argues that model tribal constitutions and the farming out of IHS services to tribes are not examples of greater sovereignty, but are instead BIA methods to control tribal populations. Moore examines tribal elections and factionalism. 1417. Morris, Charles. “Navajo Nation Council Reforms.” American Indian Law Review 16, no. 2 (1991): 613–17. Because of a leadership controversy, the Navajo Tribal Council passed Resolution CD-68-89 to reform the legislative and executive branches. The council passed the Judicial Reform Act of 1985, treating that body as a separate branch. The resolution urged that the powers of the executive and leg-

1419. Morton, Ohland. “Reconstruction in the Creek Nation.” Chronicles of Oklahoma 9 (June 1931): 171–79. The Civil War left the Creeks split into factions and in a state of chaos. The factionalism delayed the making of a peace with the U.S. in 1866. Peace terms included the emancipation of their slaves, the granting of a railroad right of way, the establishment of an inter-tribal council, and cessions of the western half of their lands. They adopted a tribal constitution in 1867, and since 1907, many have become productive citizens. 1420. Moses, L. G. and Raymond Wilson, eds. Indian Lives: Essays on Nineteenth- and Twentieth-Century Native American Leaders. Albuquerque: University of New Mexico Press, 1985. Moses and Wilson, in their introduction, stress that the eight profiled leaders had to traverse the dominant culture’s world but did so while attempting to “create a world that allowed Indians to be Indians according to his or her particular vision.” 1421. Moulton, Gary E. “Chief John Ross and Cherokee Removal Finances.” Chronicles of Oklahoma 52 (Fall 1974): 342–59. Between 1835 and 1846, tribal factionalism centered on allegations of financial mismanagement and misconduct. Moulton finds no evidence that Ross so abused the tribe’s trust. 1422. Mouser, Denette A. “A Nation in Crisis: The Government of the Cherokee Nation Struggles to Survive.” American Indian Law Review 23, no. 2 (1998–1999): 359–74. Describes the political battles inside the Cherokee Nation that pitted Principal Chief Joe Byrd against the council, resulting in a three-member commission to examine the Cherokee constitution and related disputes. 1423. Neely, Sharlotte. Snowbird Cherokees: People of Persistence. Athens: University of Georgia Press, 1991. Focuses on the contemporary world of the North Carolina Snowbird Cherokee community, which is both the most traditionalist Cherokee community and the one with the longest history of relations with lo-

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cal whites. Neely is most interested in interethnic and Cherokee–Cherokee relations and the community’s cultural persistence, but he also studies factionalism and a controversial election in the early 1970s. 1424. Niethammer, Carolyn. I’ll Go and Do More: Annie Dodge Wauneka, Navajo Leader and Activist. Lincoln, NE: Bison Books, 2004. The first Navajo woman to serve on the tribal council during her tenure, she was a strong advocate for her tribe, especially regarding health care and education. 1425. Nolen, Curtis L. “The Okmulgee Constitution: A Step toward Indian Self-Determination.” Chronicles of Oklahoma 58 (Fall 1980): 264–81. The 1870 constitution charted the development of an intertribal government. Tribes saw the move to establish a general council as the best means to preserve tribal governance in the face of proposed territorial organization. The constitution was never adopted, but the general council nevertheless served as a forum for tribes to communicate their collective opinions to the federal government. The process of drafting the constitution also heightened tribal political awareness. 1426. Nowack, Sandra Lee, compiler. “So That You Will Hear Us: A Native American Leaders’ Forum.” American Indian Law Review 18, no. 1 (1993): 551–75. Ada E. Deer’s confirmation address and the comments of those who came to support her upon Senate passage of her appointment as Assistant Secretary of Indian Affairs. 1427. Oberly, James W. A Nation of Statesmen: The Political Culture of the Stockbridge-Munsee Mohicans, 1815–1972. Norman: University of Oklahoma Press, 2005. Describes their international, intertribal, and intratribal politics through seven periods, beginning after 1812, continuing through the New Deal era and ending with their fight against termination and effort to gain additional lands between 1948 and 1974. Several times their politics broke down and internal conflict intensified, but the tribe has persevered because of their statesmanship and political emphasis. They faced assimilation pressures earlier than most, were the first to seek an IRA government, and led efforts to employ casinos for tribal revitalization. 1428. O’Brien, Sharon. American Indian Tribal Governments. Norman: University of Oklahoma Press, 1989. An NCAI-funded case study of specific historic tribal governments, changing tribal government structures during the nineteenth century, and five modern tribal governments. The study ends with a

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discussion of tribal government powers and tribal–state relationships. 1429. Owl, Frell M. “Seven Chiefs Rule the Red Lake Band.” American Indian 3 (Spring 1952): 3–12. Describes the hereditary authority of Chiefs to rule the Red Lake Band of Chippewa Indians, which was written into a 1918 constitution. 1430. Paredes, Anthony J. “Paradoxes of Modernism and Indianness in the Southeast.” American Indian Quarterly 19 (Summer 1995): 341–60. Southeastern Indians must master white institutions to retain their distinctiveness, but marketing their distinctiveness is a means to master white institutions. Economic development, particularly tourism and casino gaming, are a foundation for tribes to retain their identity and sovereignty. 1431. Parker, Arthur C. The Constitution of the Five Nations, or the Iroquois Book of the Great Law. New York State Museum Bulletin, No. 184. Albany: University of the State of New York, 1916. Book-length version of the Confederacy’s governing and legal principles, with an interpretive introduction. Also included are stories of its historical creation, involving Dekanahwideh and Hiawatha, and accounts of nineteenth-century council meetings. 1432. Perdue, Theda. “Clan and Court: Another Look at the Early Cherokee Republic.” American Indian Quarterly 24 (Fall 2000): 562–69. Discusses the importance of the clans and the political innovations the Cherokee employed to acknowledge the clans. They used two legal systems at the same time and gave credence to both. 1433. Perdue, Theda. “Traditionalism in the Cherokee Nation: Resistance to the Constitution of 1827.” Georgia Historical Quarterly 66 (Summer 1982): 159–70. Scholars errantly view the Cherokees as a civilized tribe without considering instances of their resistance to Anglo-American culture. There was considerable disagreement within the tribe about cultural change, as is exemplified by a dispute over the writing of a republican constitution that placed power in the hands of elected officials. 1434. Pommersheim, Frank. Broken Ground and Flowing Waters: An Introductory Text with Materials on Rosebud Sioux Tribal Government. Rosebud, SD: Sinte Gleska College Press, 1977. The policy of self-determination placed greater responsibilities and burdens on tribal governments. Chapters deal with tribal government, federal– tribal–state relations, natural resources, civil rights, and jurisdiction.

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1435. Pommersheim, Frank. “Coyote Paradox: Some Indian Law Reflections from the Edge of the Prairie.” Arizona State Law Journal 31 (Summer 1999): 439–81. Traces the history of federal–tribal relations and concludes with a note of optimism. Tribes are resisting encroachments in all aspects of their lives. 1436. Porter, Robert B. “Building a New Longhouse: The Case for Government Reform within the Six Nations of the Haudenosaunee.” Buffalo Law Review 46 (Fall 1998): 805–945. Historical Haudenosaunee sovereignty is based on the Gayanashagowa, the law of peace. Federal and New York colonialism changed the community’s government as Mohawks and later Senecas created new constitutions that remained active for one hundred fifty years. In 1948, Congress granted the state criminal jurisdiction over most of the Haudenosaunee people. This ongoing encroachment spawned further splits within the community. Recently there have been political civil wars over casinos. To restore the Haudenosaunee, colonialism has to end and the people have to promote peace and create a new form of government. 1437. Porter, Robert B. “Decolonizing Indigenous Governance: Observations on Restoring Greater Faith and Legitimacy in the Government of the Seneca Nation.” Kansas Journal of Law and Public Policy 8 (Winter 1999): 97–141. Provides a history of the 1848 Seneca Constitution. This document illustrated the fundamental shift within Seneca society of a governmental structure that did not reflect the community’s social structure. The role of women was reduced and majority vote replaced consensus decision-making. Power was concentrated in the hands of a few that even led to the creation of political factions opposing each other during elections. 1438. Porter, Robert B. “Strengthening Tribal Sovereignty through Government Reform: What are the Issues?” Kansas Journal of Law & Public Policy 7 (Winter 1997): 72–105. Examines the reason for contemporary tribal government infighting, with colonialism being paramount. Porter describes eight steps that can be taken to reform tribal governments. 1439. Poten, Constance J. “Robert Yellowtail, the New Warrior.” Montana: Magazine of Western History 39 (Summer 1989): 36–41. Robert Yellowtail was a strong twentieth century force in Crow history, tribal government, and tribal advocacy. He served as superintendent during the 1930s under Collier, lost the battle to build a dam on

the Big Horn River, but he survived politically to fight again. 1440. Record, Ian Wilson. “Broken Government: Constitutional Inadequacy Spawns Conflict at San Carlos.” Native Americas, 16 (Spring 1999): 10–17. In early 1998, the tribe was near bankruptcy and concerned residents began to mobilize and take over the tribal offices. The council removed Raymond Stanley as chairman. The Call To Action’s plan was to rewrite the tribe’s constitution. 1441. Reed, Gerald A. “Financial Controversy in the Cherokee Nation, 1839–1846.” Chronicles of Oklahoma 52 (Spring 1974): 82–98. After removal, John Ross’s political rivals accused him of financial wrongdoings, causing a deeper schism among tribal factions during these years. Reed too criticizes Ross for causing enduring financial problems for the tribe. 1442. Robbins, Rebecca L. “Self-Determination and Subordination: The Past, Present, and Future of American Indian Governance.” In The State of Native America: Genocide, Colonization, and Resistance, edited by M. Annette Jaimes, 87–121. Boston, MA: South End Press, 1992. Indians needed no instruction in democracy as many tribes had already established such governmental principles before contact with Europeans. Instead, the cultural–political influence went in the opposite direction, but in return tribes were subordinated. Robbins surveys the federal–tribal relationship from the early treaties through the IRA, Termination and Relocation, and Indian Activism. 1443. Robertson, Paul, Miriam Jorgensen, and Carrie Garrow. “Indigenizing Evaluation Research: How Lakota Methodologies Are Helping ‘Raise the Tipi’ in the Oglala Sioux Nation.” American Indian Quarterly 28 (Summer 2004): 499–527. Discusses contemporary grassroots political movements to take control away from the IRA government on Pine Ridge. A very narrow victory brought the IRA to Pine Ridge and tribal members are trying to employ the CIRCLE project to initiate nation rebuilding. 1444. Rosier, Paul C. “The Real Indians, Who Constitute the Real Tribe: Class, Ethnicity, and IRA Politics on the Blackfeet Reservation.” Journal of American Ethnic History 18 (Summer 1999): 3–39. Discusses the decline of the full-bloods’ political power on this reservation. They opposed the IRA and then supported the measure as the best vehicle for developing the tribe’s oil potential. Despite controlling

Tribal Governance, Constitutions, and Leadership

swing votes in important decisions, this group fought for equitable per capita distributions until the 1950s. 1445. Rusco, Elmer R. “Historic Change in Western Shoshone Country: The Establishment of the Western Shoshone National Council and Traditionalist Land Claims.” American Indian Quarterly 16 (Summer 1992): 337–60. There had never been a single governing body representing the Western Shoshone until the formation of the Western Shoshone National Council in 1984. Rusco considers this development to be the most significant change in Western Shoshone governance since the arrival of EuroAmericans. The National Council has resisted payments through the Indian Claims Commission for lands lost after the Treaty of Ruby Valley, and continues to press tribal claims, asserting that their landholdings were never extinguished legally. 1446. Rusco, Elmer R. and Mary K. Rusco. “Tribal Politics.” In Great Basin, volume 11, edited by Warren L. D’Azevedo, Handbook of North American Indians, general editor William C. Sturtevant, 558–72. Washington, DC: Smithsonian Institution, 1986. Study of twentieth-century tribal politics and governance drawing from three theoretical frameworks: the legal, neocolonial, and interaction theories. Tribes have endeavored to retain their cultural identities and sovereignty and have done so in increasingly sophisticated ways. A table lists the dates on which tribal constitutions were approved and the percent voting yes. 1447. Russell, Frank. “A Pima Constitution.” Journal of American Folklore 16 (October–December 1993): 222–28. The Piman people of the Santan Reservation broke with their elder leaders and obtained their own constitution and original laws based on the U. S. Constitution. Earl A. Whitman, boarding school disciplinarian, wrote the document and the people adapted it. Written constitutions were part of tribal life before the IRA. 1448. Russell, Orpha B. “William G. Bruner, Member of the House of Kings, Creek Nation.” Chronicles of Oklahoma 30 (Winter 1952–53): 397–407. A eulogizing biography of a Creek political leader, a “Town King,” in the early twentieth century. Extensive testimony is reprinted from his trial for manslaughter in 1889, prior to his election to political office. 1449. Russell, Orpha B. “Chief Bigheart of the Osages.” Chronicles of Oklahoma 32 (Winter 1954–55): 384–94.

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Praises the leader for guiding the Osage tribe positively in the late nineteenth and early twentieth centuries. He led the fight against land allotment. 1450. Sanders, Douglas. Aboriginal Government in the United States. Kingston: Queen’s University, Background Paper Number 5, 1985. Overview of tribal governments in the U.S. that presents the general policy shifts. Inherent tribal sovereignty is the premise of this short study. 1451. Sando, Joe. “The Pueblo People: Leadership and Government.” Indian Historian 2 (Fall 1969): 19–21. Discusses the evolution of Pueblo leadership and government from contact to the present. Election codes, crime and punishment, and the official use of the English language in 1952 are considered. 1452. Schaaf, Gregory. “From the Great Law of Peace to the Constitution of the United States: A Revision of America’s Democratic Roots.” American Indian Law Review 14, no. 2 (1986): 323–31. Imperialists credit Rousseau, Locke, and British institutions, and the frontier scholars award Turner the honor of laying the foundations for American democracy. The Iroquois have claimed that their form of government was the foundation for the Constitution and U.S. government, except for the judicial branches where, in Iroquois life, clan mothers reigned supreme. 1453. Schusky, Ernest L. “The Evolution of Indian Leadership on the Great Plains, 1750–1950.” American Indian Quarterly 10 (Winter 1986): 65–81. Tribal political organization on the Plains has always proven adaptable and will continue to be so. Tribal factionalism always existed, but the nature and extent of those schisms changed as a consequence of changing Indian and non-Indian relations over time. 1454. Schusky, Ernest L. “The Roots of Factionalism among the Lower Brule Sioux.” In North American Indian Anthropology: Essays on Society and Culture, edited by Raymond J. DeMallie and Alfonso Ortiz, 258–77. Norman: University of Oklahoma Press, 1994. Factions continued to exist among the tribe in the twentieth century but they have proven able to cooperate and the society remains relatively fluid and flexible. 1455. Scott, Charles. “Administrative Law: Self-Determination and the Consent Power: The Role of the Government in Indian Decisions.” American Indian Law Review 5, no. 1 (1977): 195–215. Tribal governments often have to seek approval from the Secretary of Interior before a tribal decision can take effect. To further tribal self-governance, as

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many of these consents should be eliminated as possible.

should be issued to the tribes, and the tribes need to have control of their lands.

1456. Shepardson, Mary. “Development of Navajo Tribal Government.” In Alfonso Ortiz, volume ed. Southwest, volume 10, William C. Sturtevant general ed. Handbook of North American Indians. Washington, DC: Smithsonian Institution, 1983, 624–35. History of the formation of the Tribal Council, police, courts and chapters, changes during the New Deal era, World War II era, and thereafter, stressing that Navajos themselves became decision-makers rather than simply adopting structures imposed from outside. The Tribal Council has helped Navajos move toward self-governance.

1461. Taylor, Theodore W. The Bureau of Indian Affairs. Boulder, CO: Westview Press, 1984. Includes a chapter on tribal governments placed within the context of the BIA administration. Charts list tribal tourism projects and other tribal economic ventures.

1457. Shepardson, Mary. “Navajo Ways of Government.” American Anthropologist, Memoir 96. v. 65, no. 3, part 2, June 1963. The Navajo Nation had a decentralized government until 1923 when the Secretary of the Interior created a tribal government. Sheep reduction, the New Deal, and wage labor changed the Navajo view of government. After WWII, they moved toward a more centralized tribal government. 1458. Silliman, Dena L. “The Osage Tribe—Post— Fletcher: The Key to the Future Is Knowing of the Past.” Kansas Journal of Law & Public Policy 9 (Summer 2000): 795–806. In 1881, the Osage drafted a written constitution, but after an inter-tribal dispute over blood quantum, Congress passed the 1906 Allotment Act that divided the Osage land by headright (original allottees), not blood. The U.S. organized a tribal government for the Osage, a unique government defined by statute, and also determined tribal membership. In 1990, four Osage sued the U.S. seeking to uphold the validity of the 1881 constitution, but the case was dismissed. 1459. Starna, William A. “The Repeal of Article 8: Law, Government, and Cultural Politics at Akwesasne.” American Indian Law Review 18, no. 2 (1993): 297–311. The New York State Indian Law, Article 8, defined “the form and function of the elective system of government for the St. Regis Mohawk Tribe” in 1802. Native Americans who favor keeping Article 8 argue that they requested it, while others say it does not represent the St. Regis political culture. 1460. Swimmer, Ross O. “Modern Tribal Government: Social and Economic Realities and Opportunities.” St. Thomas Law Review 7 (Summer 1997): 479–91. Tribal government efforts to help their people should begin with eliminating the BIA. Block grants

1462. Tooker, Elizabeth. “United States Constitution and the Iroquois League.” Enthohistory 35 (Autumn 1988): 305–36. Supportive evidence is lacking for the idea that the Iroquois government was the model for the U.S. Constitution. Yet, the Iroquois way was founded on distinct tribal principles of governance that were just as remarkable as the founding premises behind the U.S. Constitution. 1463. Travis, V. A. “Life in the Cherokee Nation a Decade after the Civil War.” Chronicles of Oklahoma 4 (March 1926): 16–30. The decade from 1875 to 1885, “culminated in the best conditions reached under tribal government.” Tribal political and judicial structures are described, as is the nature of political life. The Cherokees are natural politicians. 1464. Trees, May. “Socioeconomic Reconstruction in the Seminole Nation, 1865–1870.” Journal of the West 12 (July 1973): 490–517. Seminole efforts to build a tribal government, improve their economy, and encourage education are briefly considered in the Reconstruction era. 1465. Treuer, Margaret. “Ganienkeh: An Alternative to the Reservation System and the Federal Trust.” American Indian Journal of the Institute for the Development of Indian Law 5 (May 1979): 22–26. In 1974, a group of Mohawks tried to return to a tribal governance system of the past. They did not achieve self-sufficiency or self-rule, but the idea has promise. 1466. “Tribal Self-Government as an Aboriginal Concept.” American Indian Journal of the Institute for the Development of Indian Law 5 (January 1979): 37–39. The push for tribal self-rule is not a foreign or recent concept, but an idea that tribal nations practiced before there was a U.S. and they want to practice again. Self-rule results in both positive and negative consequences. 1467. “Tribes Eligible for Revenue Sharing Money.” American Indian Journal of the Institute for the Development of Indian Law 1 (December 1975): 20–21.

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The State and Local Fiscal Assistance Act of 1972 provides direct funding of grants to local governments. Alaskan and tribal governments that provide services to their members are eligible to participate. The money would be transferred in entitlement periods, which are time blocks. 1468. Underhill, Lonnie E. “Hamlin Garland and the Final Council of the Creek Nation.” Journal of the West 10 (July 1971): 511–20. A first-hand account of the last session of the Council of the Creek Nation in Okmulgee, Oklahoma. Underhill provides some context about the Creek government, which included a bicameral legislature, composed of representatives from the various clans. The Creek government ceased operation in 1905, according to a federal deadline set in preparation for Oklahoma statehood. 1469. Unrau, William E. “Charles Curtis (Kaw).” In The New Warriors: Native American Leaders since 1900, edited by R. David Edmunds, 17–32. Lincoln: University of Nebraska Press, 2001. Curtis followed political norms of the day, making minimal public contribution and failing to address Indian issues as vice president. 1470. Unrau, William E. Mixed-Bloods and Tribal Dissolution: Charles Curtis and the Quest for Indian Identity. Lawrence: University Press of Kansas, 1989. Prior to his term as U.S. vice president, Curtis, as an attorney, played an important role regarding how federal policy would relate to mixed-bloods. In 1896, he failed in an effort to get Congress to legislate that mixed-blood children with Indian mothers should have equal right to property and annuities. Unrau analyzes his later role in allotment and in winning passage of the act bearing his name. 1471. Unrau, William E. “Removal, Death, and Legal Reincarnation of the Kaw People.” Indian Historian 9 (Winter 1976): 2–9. The Kaw were divided and went to court in Pepper v. Dennison over control of the tribal government. The judgment claims award based on the White Plume Treaty of 1825 was the heart of the claim. The judge eliminated the existing government and required a new election. 1472. Venables, Robert W. “American Indian Influences on the America of the Founding Fathers.” In Exiled in the Land of the Free: Democracy, Indian Nations, and the U.S. Constitution, edited by Oren Lyons, et al., 74–124. Santa Fe, NM: Clear Light Publishers, 1992. American Indians symbolized after the Revolution important aspects of American thought and identity.

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The founding fathers engaged in selective borrowing from Native traditions. 1473. Venables, Robert W. “The Founding Fathers: Choosing to be the Romans.” In Indian Roots of American Democracy, edited by José Barreiro, 67–106. Ithaca, NY: Akwe:kon Press, 1992. Just as historians view the American political tradition as drawing influence from the Magna Carta without replicating it, so should they acknowledge that the same tradition may have drawn from Iroquois political tradition without replicating it. 1474. Wardell, Morris L. A Political History of the Cherokee Nation, 1838–1907. Norman: University of Oklahoma Press, 1938. The creation of a white style of tribal government, the Civil War, and the constant nineteenth-century encroachments were too strong for the Cherokees to stop and preserve their identity. 1475. Wells-Stevens, Lyn Dee. “Obstacles to Self-Governance.” In Indian Self-Governance: Perspectives on the Political Status of Indian Nations in the United States of America, edited by Carol J. Minugh, Glenn T. Morris, and Rudolph C. Ryser, 27–35. Kenmore, WA: Center for World Indigenous Studies, 1989. The federal government’s willingness to support tribal self-governance will diminish as the U.S. feels that its debts are eventually paid for past moral wrongs. Tribes must define the terms by which the “contract between sovereign nations will be broken.” Tribes must pursue power. 1476. White, Benton R. and Christine Schultz White. “Phillip Martin (Mississippi Choctaw).” In The New Warriors: Native American Leaders since 1900, edited by R. David Edmunds, 171–92. Lincoln: University of Nebraska Press, 2001. Martin became tribal chairman in 1959 and proved a skilled money manager and advocate of corporate development. He has faced criticism for his strong advocacy of economic development, but his efforts contributed to tribal economic revitalization. 1477. Wilkins, David E. “Governance within the Navajo Nation: Have Democratic Traditions Taken Hold?” Wicazo Sa Review 17 (Spring 2002): 91–129. Analysis of the history and current status of Navajo governance, with special emphasis on land claims, gaming, and taxation. Their past and future is marked by “promise” and “tension.” The former term refers to their ability to creatively adapt and respond to changing situations. The political tension is of both an internal and external nature and is partially related to their diminishing resources. The Nation’s

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“continuing move toward full democracy” means they are “heading in a positive direction.” 1478. Wilkins, David E. “Internal Tribal Fragmentation: An Examination of a Normative Model of Democratic Decision-Making.” Akwe:kon Journal 9 (Fall 1992): 33–39. To eliminate harsh intertribal conflicts, an “arrangement of consensual decision-making” may reduce the factionalization of tribal political structures. 1479. Wilkins, David E. The Navajo Political Experience, revised edition. Lanham, MD: Rowman and Littlefield, 2003; originally published as Diné Bibeehaz’aanii: A Handbook of Navajo Government. Tsaile, AZ: Diné College Press, 1987. After providing overviews on federal Indian policy, Navajo political history, and basics on government structures, Wilkins offers a detailed description and assessment of the various parts of the Navajo government, including the executive, legislative, and judicial branches. The government is “highly functional” but “still lacks fundamental political legitimacy because the Navajo citizenry did not create it and still has never duly sanctioned its existence.” The study also includes discussion of the tribal code, media relations, the electoral process and key policy issues (including the Navajo–Hopi land dispute, gaming, and taxation). Appendices include treaties and governing documents. 1480. Wilkins, David E. “Seasons of Change: Of Reforms, Melees, and Revolutions in Indian Country.” In American Indian Constitutional Reform and the Rebuilding of Native Nations, edited by Eric D. Lemont, 35–48. Austin: University of Texas Press, 2006. Reasons for the recent trend toward tribal government reform include inadequacies of the Westernstyle constitutions; state and societal developments over the past forty years; resurgent traditionalism; and “internal political, economic, and moral crises.” 1481. Willard, C. William. “The Comparative History of Two Tribal Governments.” Wicazo Sa Review 6 (Spring 1990): 56–62. Compares the Navajo Nation’s government with the Pascua Yaqui of Arizona. Despite differences, they share federal recognition. With the passage of the Indian Self-Determination Act, their leaders have to become very responsible. 1482. Willard, C. William. “Self-Government for Native Americans: The Case of the Pascua Yaqui Tribe.” In American Indian Policy: Self-Governance and Economic Development, edited by Lyman H. Legters and

Fremont J. Lyden, 1–13 Westport, CT: Greenwood Press, 1994. This Arizona tribe gained federal recognition in 1978. Willard considers their status in the U.S. since their arrival as refugees from Sonora in the early twentieth century and efforts to write a constitution after recognition, which was not finally approved until 1988. 1483. Willard, C. William. “Editor’s Commentary.” Wicazo Sa Review 17 (Spring 2002): 5–6; cont. 17 (Fall 2002): 5–6. Introductions to a double-issue special edition focusing on indigenous self-governance in the twentyfirst century. 1484. Williams, Aubrey W., Jr. Navajo Political Process. Smithsonian Contributions to Anthropology, volume 9, Washington, DC: Smithsonian Institution Press, 1970. Discusses the beginnings of Navajo political change, from the first political jurisdictions at the turn of the century, to the 1923 government, to the organization of the first chapter in 1927. Williams describes the different governmental functions and how the Navajos have incorporated them into their lives. 1485. Williams, Walter L. “Twentieth-Century Indian Leaders: Brokers and Providers.” Journal of the West 23 (July 1984): 3–6. Discussion of the evolution of Indian tribal leadership serves as an introduction to this special issue. Williams ties developments in tribal leadership to changing federal policies, and also makes suggestions for ways that tribal communities can choose better politicians to serve them. He is generally optimistic about trends in Native American leadership, but does discuss the difficulties posed by factionalism. 1486. Wilson, Terry P. “Chief Fred Lookout and the Politics of Osage Oil, 1906–1949.” Journal of the West 23 (July 1984): 47–53. A short political biography of an Osage leader who won the right to remain chief in “no fewer than ten elections,” an achievement that the author considers significant given the combative nature of Osage politics. Wilson also includes a discussion of Osage responses to the Dawes Act and oil leasing. 1487. Young, Robert W. A Political History of the Navajo Tribe. Tsaile, AZ: Navajo Community College Press, 1978. Focuses on the 1923 government and the subsequent regulations that restricted the tribe’s ability to have true home rule. In 1937, the Navajo drafted and

Tribal Governance, Constitutions, and Leadership

submitted a new constitution complete with 74 voting precincts appropriated on a population basis. Though not approved, this document eliminated many aspects of federal control. Instead, the “Rules for the Navajo Council” were drafted in 1938 and became the foundation of the Navajo council. 1488. Zorn, Stephen. “Community Control and Regulation of Development.” In Seminar on Indian Nat-

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ural Resource Law and Finance. Oakland, CA: American Indian Lawyer Training Program, 1980, 327–64. It is important for community members to become involved in the local decision making process over natural resources. The decisions that tribal communities must make include controlling boom towns, zoning, tribal water control, and environmental protection.

Chapter 15 Tribal–State Relations

Essays by various authors dealing with legal and political aspects of tribal–state relations. The editors write that these sovereign actors have two choices— litigate or cooperate. The former option is usually taken, but states and tribes need not view their relationship as a zero sum game. They should negotiate.

1489. Apess, William. Indian Nullification of the Unconstitutional Laws of Massachusetts Relative to the Marshpee Tribe or the Pretended Riot Explained. Stanfordville, NY: Earl M. Coleman, 1979; first published Boston, MA: Press of J. Howe, 1835. Apess wrote in defense of the Mashpees (or Marshpee) of Cape Cod and against state interference in their affairs. Apess and others were imprisoned for inciting a riot, but the state, in 1834, legislated that some tribal self-government would be allowed. Jack Campisi provides the forward to the 1979 edition.

1493. Bee, Robert L. “Connecticut’s Indian Policy: From Testy Arrogance to Benign Bemusement.” In The Pequots in Southern New England: The Fall and Rise of an American Indian Nation, edited by Laurence M. Hauptman and James D. Wherry, 194–212. Norman: University of Oklahoma Press, 1990. In 1935, the state-held authority over remaining reservation lands through the Park and Forest Commission and, in 1941, this duty passed to the state Welfare Department. Tribes pushed for legislation in the early 1970s to pass the responsibility to a new commission, the Department of Environmental Protection, and creation of the Indian Affairs Council to serve as liaison between the agency and tribes. The change proved a breakthrough for tribes endeavoring to control their lands.

1490. Ashley, Jeffrey S. and Secody J. Hubbard. Negotiated Sovereignty: Working to Improve Tribal–State Relations. Westport, CT: Praeger Publishers, 2004. Improving relations begins with understanding tribal governments’ unique status that is even with or above states in the federal system. The authors analyze specific case studies of tribal–state relations, with tribes such as the Campo Band of Kumeyaay, Navajo Nation, Puyallup, Salish–Kootenai, Shoshone–Bannock, and St. Regis Mohawk Nation. 1491. Bays, Brad A. “Tribal–State Tobacco Compacts and Moter Fuel Contracts in Oklahoma.” In The Tribes and the States: Geographies of Intergovernmental Interaction, edited by Brad A. Bays and Erin Hogan Fouberg, 181–209. Lanham, MD: Rowman and Littlefield, 2002. Studies these compacts to better understand the context for tribal–state agreements and Oklahoma– tribal relations in general. Such agreements only work when involved parties are willing to sacrifice some of their sovereign rights for greater mutual benefit.

1494. Biolsi, Thomas. “Bringing the Law Back In: Legal Rights and Regulations of the Indian–White Relations on Rosebud Reservation.” Current Anthropology 36 (August–October 1995): 543–71. State law and case law have exacerbated the political struggles between Rosebud and South Dakota. The tribe has been forced to push for greater selfrule. Case law, in this instance Rosebud v. Kneip, still has the power to shape contemporary struggles between tribal members and the state of South Dakota. 1495. Bishop, Bruce A. “The States and Indian Jurisdiction: Another Approach.” State Government 51 (Autumn 1978): 230–34. Some states could not negotiate treaties with tribes because they had disclaimers in their constitutions

1492. Bays, Brad A. and Erin Hogan Fouberg, eds. The Tribes and the States: Geographies of Intergovernmental Interaction. Lanham, MD: Rowman and Littlefield, 2002. 153

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preventing any relations with tribes. By the 1950s, some disclaimer states ignored that provision of their constitutions. By the 1970s, states considered tribal relations crucial and the Tribal–State Compact in 1978 was introduced, providing federal consent for tribes to enter into state agreements, but the legislation failed to pass during that congressional session. 1496. Commission on State–Tribal Relations. State–Tribal Agreements: A Comprehensive Study. Commission on State–Tribal Relations, May 1981. The 1970s was a decade of emotional lawsuits between tribes and states. In an effort to get out of court, states and tribes began to negotiate agreements, thereby solving their problems. Chapters discuss law enforcement, tax collection, natural resources, social services, and general issues.

Problem of Federal–State Relations.” Buffalo Law Review 8, no. 1 (1958–1959): 1–26. Conflicts over tribal lands in New York continued after the Revolution, and through the 1940s, when the ongoing Salamanca lands claim dispute on the Allegany Reservation was decided in United States v. Forenss. Congress, in 1948, passed legislation granting state criminal jurisdiction on the reservations. There should be a “more consistent exercise of federal guardianship duties,” and state authority should be limited to state issues. 1501. Hauptman, Laurence M. Formulating American Indian Policy in New York State, 1970–1986. Albany: State University of New York Press, 1988. Unresolved land claims perpetuate Native distrust of the state and keep New York from adequately serving these residents. State efforts to rectify the problematic relationship have only exacerbated the distrust and cynicism. The state should resolve the land claims, reorganize its administrative structure, and hire knowledgeable staff members sensitive to Native concerns.

1497. Cornell, Stephen and Jonathan B. Taylor. Sovereignty, Devolution, and the Future of Tribal–State Relations. Harvard Project on American Indian Economic Development, John F. Kennedy School of Government, Cambridge, MA: Harvard University, 2000. Remarks made to the NCAI highlighting three significant trends: devolution of decision-making power from central to local governments and growing state sovereignty; growing tribal power; and court assaults on tribal sovereignty. States should recognize that increased tribal sovereignty can be mutually beneficial and tribes must pursue good governance so as to exercise sovereignty effectively.

1502. “Intergovernmental Compacts in Native American Law: Models for Expanded Usage.” Harvard Law Review 112 (February 1999): 922–39. There are good and bad points for tribal nations to consider when entering into compacts with states. Compacts can reduce litigation but specific needs have to be addressed.

1498. Duthu, N. Bruce. “The Thurgood Marshall Papers and the Quest for a Principled Theory of Tribal Sovereignty: Fueling the Fires of Tribal/State Conflict.” Vermont Law Review 21 (Fall 1996): 47–110. Despite centuries of litigating tribal sovereignty, the question keeps emerging asking what is the extent of inherent tribal powers on tribal lands. The sale and allotment of tribal lands and the movement of non-Indians onto the reservations has made tribes reluctant to develop solutions to environmental problems, because the legal debate with states over tribal inherent sovereignty has not been settled.

1503. Jarding, Lilias Jones. “Tribal–State Relations Involving Land and Resources in the Self-Determination Era.” Political Research Quarterly 57 (June 2004): 295–303. Neither tribal nor state governments are equipped to confront reservation land issues. The federal government historically has taken the lead in this area. State governments are often hostile to tribes, especially in states with high tribal populations, while state employees want to cooperate with tribal employees. It is important to define tribal–state relations in terms of “relational federalism.”

1499. Gover, Kevin B., Catherine Baker Stetson, and Susan M. Williams. “Tribal–State Dispute Resolution: Recent Attempts.” South Dakota Law Review 36, no. 2 (1991): 277–98. Provides a sampling of recent tribal–state negotiations to illustrate the potential that exists between states and tribes to negotiate agreements.

1504. Johnson, Susan, Jeanne Kaufmann, John Dossett, and Sarah Hicks. Government to Government: Understanding State and Tribal Governments, National Conference of State Legislatures, 2000. This is a joint venture between NCAI and the National Conference of State Legislatures to encourage intergovernmental cooperation. Both tribal and state governments need to define and pursue their common interests.

1500. Gunther, Gerald. “Governmental Power and New York Indian Lands—A Reassessment of a Persistent

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1505. Laurence, Robert. “Service of Process and Execution of Judgment on Indian Reservations.” American Indian Law Review 10, no. 2 (1982): 257–85. Tribal and state governments have a common interest in cooperating regarding service of process and execution of judgment. 1506. Laws of the Colonial and State Governments, Relating to Indians and Indian Affairs, from 1633 to 1831 Inclusive. Stanfordville, NY: Earl M. Coleman, Publisher, 1979. Originally published in 1832, this volume describes how colonial and state governments used their laws to intrude into tribal life. Colonial and state governments, the Articles of Confederation, and the Constitution government all sought to restrict tribal sovereignty. 1507. Mason, W. Dale. “Tribes and States: A New Era in Intergovernmental Affairs.” Publius, Journal of Federalism 28 (Winter 1998): 111–30. IGRA was a first step to end state–tribal conflicts and to move the tribes into the federal system. The place of tribal governments is complex and care is required in the proper conduct of intergovernmental relations. IGRA and the national policy of selfdetermination culminated in President Clinton’s E. O. 13084, titled “Consultation and Coordination with Tribal Governments.” 1508. Nichols, David A. “Land, Republicanism, and Indians: Power and Policy in Early National Georgia, 1780–1825.” Georgia Historical Quarterly 85 (Summer 2001): 199–226. Offers an alternate theory to explain Georgia’s fervent effort to acquire Indian lands, general hostility toward tribes, and disputes with federal Indian policy. Numerous factors were at play, but Georgia’s nineteenth-century Indian policy “grew from the doctrines of Revolutionary republicanism of the eighteenth.” 1509. Pease, Gregory. “Constitutional Revision—Indians in the New Mexico Constitution.” Natural Resources Journal 9 (July 1969): 466–70. The New Mexico Constitution mentions tribal members in three sections dealing with voting, land, and liquor. The Constitutional Revision Commission has recommended dropping Indians from the voting section, but retaining them in the other two. Pease discusses these last two provisions in light of federal authority and the state’s authority over tribal affairs. 1510. Pommersheim, Frank. “Tribal–State Relations: Hope for the Future?” South Dakota Law Review 36, no. 2 (1991): 239–76.

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In 1983, Wisconsin Governor Anthony S. Earl issued a proclamation stating that the state would work in cooperation with the tribes. South Dakota has a statute that establishes state–tribal relations requiring consultation with tribal governments if there is any chance that the state actions may affect tribal communities. Sovereignty accords would be even better. 1511. Porter, Robert B. “Legalizing, Decolonizing, and Modernizing New York State’s Indian Law.” Albany Law Review 63, no. 1 (1999): 125–200. Regulating tribal–state relations is difficult for the federal government when there is no constitutional provision governing tribal lands within a state before the nation’s creation. As a result, New York has waged war over the extent of state authority on reservations. To remedy this conflict, the state should abandon the current colonial application of tribal law and embark on an Indigenous Relations Law. 1512. Pound, Cuthbert W. “Nationals without a Nation: The New York State Tribal Indians.” Columbia Law Review 22 (February 1922): 97–102. Once regarded as foreign nations, the eight reservations in New York are in a unique situation. The 1915 state Constitutional Convention advocated abolishing the tribes’ peacemaker courts and all other judicial bodies, except as provided by the Constitution and U.S. treaties and laws. The time has come to exclude the New York tribal people from the recent Supreme Court decisions and place them under the jurisdiction of New York. 1513. Reed, James B. and Judy A. Zelio, eds. States and Tribes: Building New Traditions: A Broad Examination of the Condition of State–Tribal Relations and Opportunities for Mutually Beneficial Cooperation as the 21st Century approaches, from a State Legislative Policy Perspective. Denver, CO: National Conference of State Legislatures, 1995. Encourages greater cooperation between nonIndian and tribal governments and concludes with recommendations for the president, Congress, states, and tribes. Chapters include tribal–state relations, health and social services, economic development, IGRA, taxation, natural resource management, and environmental regulation. 1514. Rolland, Richard A. and Dick G. Winchell. “State and Tribal Relations in Transportation: A Washington Case Study.” In The Tribes and the States: Geographies of Intergovernmental Interaction, edited by Brad A. Bays and Erin Hogan Fouberg, 139–58. Lanham, MD: Rowman and Littlefield, 2002. Since 1993, the state has encouraged state and tribal transportation officials to engage in dialogue

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through conferences and committees. This cooperation has led to some successes and serves as a model for other states. Cooperation can lead to a transportation system conducive to on- and off-reservation economic development. 1515. Rotenberg, Daniel L. “American States and Indian Tribes: Power Conflict in the Supreme Court.” Dickinson Law Review 92 (Fall 1987): 81–103. Over the past thirty years, tribes and states have battled for power over reservation assets and people. One reason these are complex legal conflicts lies in the fact that a tribe’s territory is often different than a reservation’s land base. Making matters worse is the reality that federal authority is absent in some tribal–state conflicts. 1516. “State Assistance for Indian Tribes.” Gonzaga Law Review 10 (Fall 1974): 271–77. The Washington State Supreme Court decided in Anderson v. O’Brien that under the 1972 Economic Assistance Act “state financial assistance to Indian tribes is valid.” 1517. Vandervest, Brian. “The Wisconsin State Legal System and Indian Affairs in the Nineteenth Century: A

Lost Chapter in Wisconsin’s Legal History.” Marquette Law Review 87 (Winter 2003): 357–85. A hole in federal Indian policy permitted the state of Wisconsin to get involved in tribal affairs. In the 1800s, the Wisconsin Supreme Court heard tribal property cases, taxation questions, and criminal jurisdiction affecting the state’s tribal members. The constitution had a suffrage clause for tribesmen who Congress declared to be citizens, but the state Supreme Court still found loopholes to circumvent federal policy and tribal sovereignty. 1518. Wilkins, David E. “Tribal–State Affairs: American States as ‘Disclaiming’ Sovereigns.” Publius, Journal of Federalism 28 (Autumn 1998): 55–81. Disclaimer statements, from Wisconsin in 1836 to Alaska in 1959, are important to tribal nations. Disclaimers began with territorial creation legislation and continued with the admission of states into the Union. The disclaimers place tribal relations on a plane with the federal government. In the process, they prevent the states from interfering in tribal affairs.

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1519. Baker, Wayne. “Seminole Speaks to Sovereign Immunity and Ex Parte Young.” St. John’s Law Review 71 (Fall 1997): 739–66. When the Seminole Tribe sued Florida for failing to negotiate in good faith under IGRA, the Supreme Court declared that the tribe could not sue because that would violate Florida’s Eleventh Amendment sovereign immunity. The case may affect modern civil rights legislation.

ated by Indian Tribes?” North Dakota Law Review 71, no. 2 (1995): 601–17. Two federal district courts in the Eleventh Circuit Court of Appeals reached two different conclusions. One trial court decided in Seminole Tribe of Florida v. Florida that the Eleventh Amendment prohibited tribes from filing a claim against the state because of the state’s sovereign immunity, while the other court ruled in Poarch Band of Creek Indians v. Alabama that the Eleventh Amendment was not a sovereign immunity bar to a tribe filing a suit against a state. These cases will move forward on appeal.

1520. Bobbitt, Chrystal. “Domestic Sovereign Immunity: A Long Way Back to the Eleventh Amendment.” Whittier Law Review 22, no. 2 (2000): 531–76. After Seminole Tribe v. Florida, the Supreme Court overruled past decisions on state sovereign immunity to deny the tribe the right to sue the state for failing to follow IGRA. Following that decision, the court continued to move more power to the states.

1524. Bugg, Steven W. “The Business Ramifications of Tribal Sovereign Immunity: Life after Kiowa Tribe of Oklahoma v. Manufacturing Technologies, Inc.” Consumer Finance Law Quarterly Report 53 (Winter 1999): 59–61. After this Supreme Court decision, tribes have established broad sovereign immunity powers that will hinder business development and economic growth.

1521. Bond, Jay. “Indians: Suit against Indians and Indian Tribes.” Oklahoma Law Review 11 (May 1958): 217–18. In Haile v. Saunooke, the fourth circuit court of Oklahoma followed tradition, prohibiting suit against a tribe or the U.S., unless Congress so authorized.

1525. Clement, Julie A. “Strengthening Autonomy by Waiving Sovereign Immunity: Why Indian Tribes Should Be ‘Foreign’ under the Foreign Sovereign Immunities Act.” Thomas M. Cooley Law Review 14, no. 3 (1997): 653–83. John Marshall’s domestic dependent nation decision created a contradiction that has had long-term effects on tribal America. The 1976 Foreign Sovereign Immunity Act should be amended to include tribal nations in its language.

1522. Borchert, John W. “Tribal Immunity through the Lens of the Foreign Sovereign Immunities Act: A Warrant for Codification.” Emory International Law Review 13 (Spring 1999): 247–81. The wide scope of tribal sovereign immunity should be narrowed and placed under the Foreign Sovereign Immunities Act so that criminal offenses will not be dismissed. Sometimes tribes are the victims, but they protect aggressors from prosecution because of sovereign immunity.

1526. Clinefelter, Jeremy. “Just Say the ‘Magic Words’: Advocating an Arbitration Clause Should Be Held to an Express Waiver Standard for the Doctrine of Indian Sovereign Immunity—C&L Enterprises v. Citizen Band Potawatomi Indian Tribe.” American Indian Law Review 25, no. 2 (2000–2001): 315–51.

1523. Brown, Lauralyn. “Federal Courts—Indians: Can Congress Constitutionally Abrogate States’ Eleventh Amendment Sovereign Immunity from Suits Initi-

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The company attempted to sue the tribe in a dispute about a roofing contract, but the tribe asserted its sovereign immunity. The U.S. Supreme Court dismissed the suit but said tribes could waive their immunity. The Court must now decide whether an arbitration clause between a company and tribe may constitute such a waiver. 1527. Danahy, Scott D. “License to Discriminate: The Application of Sovereign Immunity to Employment Discrimination Claims Brought by Non-Native American Employees of Tribally Owned Business.” Florida State University Law Review 25 (Spring 1998): 676–703. When Kristine Roselius found employment with a Seminole-owned corporation, she might have waived her federal employment discrimination rights. She sued the tribe for harassment under the 1964 Civil Rights Act, claiming that the corporation was not part of the tribe. The Southern District Court for Florida dismissed the case, claiming no jurisdiction because the tribe’s sovereign immunity extended to the tribal corporation. Possible solutions are tort claims against individuals and the language of ICRA. 1528. Day, Christopher W. “Kiowa Tribe v. Manufacturing Technologies, Inc.: Doing the Right Thing for All the Wrong Reasons.” Catholic University Law Review 49 (Fall 1999): 279–329. The Kiowa defaulted on a business arrangement with Manufacturing Technologies. The Supreme Court reversed a lower court’s ruling, writing that it is an issue of federal law as to whether a tribe can be sued. Sovereign immunity encourages self-determination and economic development, but the high court encouraged Congress to eliminate tribal sovereign immunity in off-reservation ventures. 1529. “In Defense of Tribal Sovereign Immunity.” Harvard Law Review 95 (March 1982): 1058–78. United States v. United States Fidelity & Guaranty Company, decided in 1940, marked the beginning of the modern era “judicial creation of tribal sovereign immunity from suit in state and federal courts.” Congress limited this concept in the Indian Self-Determination and Education Assistance Act in 1975, requiring a tribe to protect itself “against liability incurred in participating in tribal aid programs; in any insurance the tribe obtains.” Courts are threatening this protection that is necessary to protect tribal resources, but the Montana test may prove too narrow. 1530. Dindinger, F. J. Rick, II. “Seminole Tribe’s Impact on the Ability of Private Plaintiffs to Bring Environmental Suits against States.” Denver University Law Review 75, no. 1 (1997): 253–74.

In 1996, the Supreme Court, in Seminole Tribe v. Florida, developed a two-step test for evaluating whether federal courts have authority over cases involving states. By making it difficult for the federal government and tribes to sue states, the court made it more difficult for individuals to do the same. Options still remain based on the Fourteenth Amendment and the “viability of the Ex parte Young doctrine.” 1531. Haddock, David and Robert Miller. “Can a Sovereign Protect Investors from itself? Tribal Institutions to Spur Reservation Investment.” Journal of Small and Emerging Business Law 8, no. 2 (2004): 173–228. Investors can overcome sovereign immunity if it is not viewed as a barrier, but the needs of investors for an impartial tribal court forum is necessary. If uncertainty arises, business is lost. Most tribes will waive sovereign immunity for business purposes. 1532. Hasday, Lisa R. “Tribal Immunity and Access for the Disabled.” Yale Law Journal 109 (March 2000): 1199–1206. In the case Florida Paraplegic Association v. Miccosukee Tribe of Indians, the Eleventh Circuit Court of Appeals decided that the tribe’s sovereign immunity protected it against suit. The plaintiffs should have sued individuals, not the tribe, and the tribe should have waived its sovereign immunity. 1533. Johnson, Ralph W. and James M. Madden. “Sovereign Immunity in Indian Tribal Law.” American Indian Law Review 12, no. 2 (1984): 153–93. The scope and rules for sovereign immunity depend on the activity in question, demand for relief, and the parameters of immunity. A bare-bones statute would be the best method to clear up confusion. 1534. Joranko, Timothy W. “Tribal Self-Determination Unfettered: Toward a Rule of Absolute Tribal Official Immunity from Damages in Federal Court.” Arizona State Law Journal 26 (Winter 1994): 987–1027. In 1991, the Supreme Court, in Oklahoma Tax Commission v. Citizen Band Potawatomis Indian Tribe of Oklahoma, reaffirmed that tribes have sovereign immunity from suit in federal court. Joranko concludes, “tribal officials should be absolutely immune from monetary liability in federal court actions.” 1535. Koczara, Ryan T. “American Indian Law— Sovereign Immunity—Indian Tribes Enjoy Sovereign Immunity From Suits on Contracts, Whether Those Contracts Involve Governmental or Commercial Activities and Whether They Were Made On or Off a Reservation.” University of Detroit Mercy Law Review 76 (Spring 1999): 927–42. The Kiowa tribe, seeking to develop a tribal enterprise, purchased property off-reservation and then

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missed payments. The lower state court found for Manufacturing Technologies, and when the U.S. Supreme Court heard the case, it decided tribes “enjoy immunity for suits on contracts whether those contracts involve governmental or commercial activities and whether they were made on or off the reservation.” 1536. Lafferty, Stephen. “Sovereignty: Tribal Sovereign Immunity and the Claims of Non-Indians under the Indian Civil Rights Act.” American Indian Law Review 9, no. 2 (1981): 289–308. When a non-Indian seeks relief in a federal court, that action is contrary to Congress’s intent in ICRA. The tension is between tribal sovereign immunity and the rights of individuals who cannot sue tribes. Tribes should work to resolve this tension to keep the courts and Congress from doing so. 1537. McLish, Thomas P. “Tribal Sovereign Immunity: Searching for Sensible Limits.” Columbia Law Review 88 (January 1988): 173–93. Tribal sovereign immunity is too broad and extends beyond the scope of federal intent. To rein in tribal sovereign immunity and provide some degree of protection for plaintiffs, it should be limited to areas of cultural and economic protection and self-determination. 1538. Merkley, Nicholas. “Compulsory Party Joinder and Tribal Sovereign Immunity: A Proposal to Modify Federal Courts’ Application of Rule 19 to Cases Involving Absent Tribes as ‘Necessary’ Parties.” Oklahoma Law Review 56 (Winter 2003): 931–75. Federal Rules of Civil Procedure, Rule 19, puts compulsory party joinder in operation, unless the party is a tribe that has sovereign immunity that it must waive. Many courts misapply Rule 19 by ignoring the federal government’s ability to represent absent tribes. There is an “alternative procedural mechanism that could resolve a majority of Rule 19 issues.” 1539. Monette, Richard. “When Tribes Sue States: How ‘Federal Indian Law’ Offers an Opportunity to Clarify Sovereign Immunity Jurisdiction.” Quinnipiac Law Review 14 (Fall 1994): 401–35. Sovereign immunity is the foundation of the federalist system, but there is tension among Article III, the Tenth Amendment, and the Eleventh Amendment due to absence of any mention of tribes. Seminole Tribe provides the courts with a “silver lining” to include tribes in Article III, thus permitting them to sue states based on IGRA’s compact section. Congress’s broad powers over states and tribes dictate that the federal government must be involved when tribes sue a state or vice versa. 1540. O’Connell, Michael P. “Citizen Suits against Tribal Governments and Tribal Officials under Federal En-

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vironmental Law.” Tulsa Law Journal 36 (Winter 2000): 335–47. Since Congress has not expressed a desire to waive tribal sovereign immunity for citizen suits against tribes when federal environmental statutes are involved, the federal courts do not have the authority to hear this type of case. On the other hand, the U.S. may sue or force its will on tribes to enforce these statutes. 1541. Pfander, James E. “An Intermediate Solution to State Sovereign Immunity: Federal Appellate Court Review of State Court Judgments after Seminole Tribe.” UCLA Law Review 46 (October 1998): 161–229. Though the case stemmed from the Seminole Nation suing the state of Florida to bargain in good faith over a tribal gaming issue, the case created great interest in the legal community because of the Supreme Court’s rediscovery of the Eleventh Amendment and the development of greater state power. Pfander suggests that Congress expand intermediate federal court authority to hear state court appeals. 1542. Pitchlynn, Gary S. “Secured Transactions and Tribal Sovereign Immunity.” Consumer Finance Law Quarterly Report 53 (Winter 1999): 53–58. As tribes enter more businesses, the question of a tribal waiver of sovereign immunity becomes more important. This is especially true after Kiowa Tribe of Oklahoma v. Manufacturing Technologies, Inc., where the court declared that tribal sovereign immunity extended to the off-reservation business. To build an economy and future, tribes must maintain their sovereign immunity. 1543. Pommersheim, Frank and Terry Pechota. “Tribal Immunity, Tribal Courts and the Federal System: Emerging Contours and Frontiers.” South Dakota Law Review 31 (Summer 1986): 553–601. Tribal sovereign immunity is a strong force in federal Indian law, but the IRA and ICRA have raised questions about its scope. Its boundaries are still hazy. 1544. Russell, Steve. “Sovereign Decisions: A Plan for Defeating Federal Review of Tribal Law Applications.” Wicazo Sa Review 20 (Fall 2005): 65–74. Sovereign immunity is disliked by nearly everyone because of its racial connotations and tribes have not handled this legal concept very well. No tribal government can afford to be hostile to corporations. At the same time, tribal governments must govern. This issue becomes even more important as privatization increases around Indian lands. 1545. Schlosser, Thomas P. “Sovereign Immunity: Should the Sovereign Control the Purse?” American Indian Law Review 24, no. 2 (1999–2000): 309–55.

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Defines the often-misunderstood concept and surveys important cases and legislative bills related to tribes. Sen. Slade Gorton fed on anti-Indian sentiment and attacked extreme uses of tribal sovereign immunity. The U.S. Supreme Court upheld tribal, state, and federal sovereign immunity. 1546. Seielstad, Andrea. “The Recognition of Tribal Sovereign Immunity under Federal Law: Legal, Historical, and Normative Reflections on a Fundamental Aspect of American Indian Sovereignty.” Tulsa Law Review 37 (Spring 2002): 661–776. The doctrine of sovereign immunity runs deep in American jurisprudence and is very much alive. Since tribal policy and courts can shift course, tribes should take advantage of this sovereign immunity window and build a program that will insure that their sovereign immunity will stand future tests. 1547. “Sovereign Immunity—Indian Tribal—Sovereignty— Tribes Not Immune from Suits Arising from Off-Reservation Business Activity.” Harvard Law Review 102 (December 1988): 556–62. The New Mexico Supreme Court undermined tribal sovereign immunity in Padilla v. Pueblo of Acoma, ruling that an off-reservation state court has authority to assume jurisdiction over a tribe’s offreservation business ventures even if sovereign immunity was not waived.

Tribal sovereign immunity has provided protection from some Supreme Court inroads. The tribal courts will develop even more and will find legal remedies to retain their authority. 1550. Williamson, Andrew S. “Policing the States after Seminole.” Georgetown Law Journal 85 (May 1997): 1739–63. After the Seminoles lost their suit against Florida to force state officials to negotiate a tribal gaming compact, there was concern that the Supreme Court decision had reduced federal authority based on state sovereign immunity. The federal government can place limitations on states receiving federal funding, including waiving their Eleventh Amendment sovereign immunity. 1551. Wilson, Theresa R. “Nations within a Nation: The Evolution of Tribal Immunity.” American Indian Law Review 24, no. 1 (1999–2000): 99–128. Tribal immunity is a product of case law and is of a degree rivaling state’s immunity under the Eleventh Amendment. Wilson traces the evolution of state and tribal immunities and the historic relationship between tribes and the federal government in regards to tribal sovereignty. Congressional and tribal powers to waive tribal immunity are discussed, as are two key cases: Seminole Tribe of Florida v. Florida and Kiowa Tribe of Oklahoma v. Manufacturing Technologies, Inc.

1548. “Sovereign Immunity for Small Businesses.” Arizona Law Review 13, no. 2 (1971): 523–28. In 1971, the Arizona trial court in White Mountain Apache Indian Tribe v. Shelley decided that this tribal company could be sued in state court for breach of contract. On appeal, the Arizona Supreme Court ruled that the Fort Apache Timber Company was part of a dependent sovereign tribal nation and the tribe could not be sued without either federal or tribal consent. Tribal sovereign immunity will lead to more conflicts and make businesses reluctant to enter reservations.

1552. Wolff, Eric B. “Coeur d’Alene and Existential Categories for Sovereign Immunity Cases.” California Law Review 86 (July 1998): 879–917. In 1991, the Coeur d’Alene Nation asked the federal government to quiet Idaho’s lake bed title on the reservation pursuant to President Grant’s 1873 Executive Order and to stop all future state encroachments on the tribe’s water ways. The Supreme Court struck the state’s Eleventh Amendment argument, forcing pursuit of other remedies.

1549. Struve, Catherine T. “Tribal Immunity and Tribal Courts.” Arizona State Law Journal 36 (Spring 2004): 137–82. This survey of tribal sovereign immunity reveals that tribes have strengthened their court operations and are committed to improving their court systems.

1553. Wright. Douglas R. “Sovereignty: Indian Sovereignty and Tribal Immunity from Suit.” American Indian Law Review 8, no. 2 (1980): 401–18. Tribal sovereignty is not complete. Sovereign immunity is based on the government’s fiduciary relationship with the tribes, not their sovereignty.

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common law is based on a horizontal model within the clan system that traces identity through the women. Compassion, peacefulness, and cooperation are forces that transcend Navajo common law. These virtues are now the foundation of the Navajo peacemaker courts.

1554. American Indian Law Center. Model Children’s Code. Albuquerque: American Indian Law Center, University of New Mexico, 1976. Provides a working model for tribal governments to use when enacting tribal children’s codes. The study examines tribal courts, jurisdiction issues, juveniles, minor care, and termination.

1558. Bobroff, Kenneth. “Dine’ Bi Beenahaz’ a’anii: Codifying Indigenous Consuetudinary Law in the 21st Century.” Tribal Law Journal 5 (2004–2005): online. http://tlj.unm.edu/articles/ The Navajo Nation created the Navajo Common Law Project in 1999 to integrate consuetudinary law into all tribal government programs to preserve sovereignty and culture. This is an effort to keep Navajo “unwritten laws of custom” from being lost.

1555. Armstrong, Troy L., Michael H. Guilfoyle, and Ada Pecos Melton. “Traditional Approaches to Tribal Justice: History and Current Practice.” In Native Americans, Crime, and Justice, edited by Marianne O. Nielsen and Robert A. Silverman, 46–51. Boulder, CO: Westview Press, 1996. Discusses traditional themes of tribal punishment such as restitution, reparation, and how blood feuds were prevented under these punishments. The Menominee court has brought back restitution for its juvenile offenders with some degree of success.

1559. Bond-Maupin, Lisa. “Who Made the Code in the First Place? Delinquency and Justice in an American Indian Community.” Crime, Law, and Social Change 25, no. 2 (1996): 133–52. Tribal communities have created codes, children’s courts, and juvenile detention centers. These new children’s institutions are placed in the larger context of American Indian policy and the ways that children are defined as delinquent and the justice that the children receive.

1556. Blackburn, Bob L. “From Blood Revenge to the Lighthorsemen: Evolution of Law Enforcement Institutions among the Five Civilized Tribes.” American Indian Law Review 8, no. 1 (1980): 49–63. The Five Civilized Tribes applied the law of revenge before 1800, but then began to apply different methods of law enforcement often introduced by traders. The second and third generations of mixed blood Native Americans and missionaries refined these tribal concepts of law and order.

1560. Bradford, William C. “Reclaiming Indigenous Autonomy on the Path to Peaceful Coexistence.” North Dakota Law Review 76, no. 3 (2000): 551–604. The 1985 tribal peacemaking conference encouraged tribal communities to revive “Tribal Peacemaking.” This is horizontal justice with a tribal twist using public and ceremonial means to connect all the members to push toward restoration. The most publicized TPM case to replace court adjudication was the Tlingit decision to punish two youths by banishing them to the woods for their crime.

1557. Bluehouse, Philmer and James W. Zion. “Ho’zhq’q’jt’ Naat’a’anii: The Navajo Justice and Harmony Ceremony.” In Navajo Nation Peacekeeping: Living Justice, edited by Marianne O. Nielsen and James W. Zion, 156–64. Tucson: University of Arizona Press, 2005. After losing their justice system in 1892, the Navajo returned to their traditions in 1981. Their

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1561. Colton, Harold Sellers. “A Brief Survey of Hopi Common Law” Museum Notes: Museum of Northern Arizona 7 (December 1934): 21–24. Describes Hopi political organization in each independent town and their common law, which is based on social sanction and enforced by public opinion. Disputes are most often resolved through negotiation but can be appealed to the council, an appointed judge, or to the agent. 1562. Conn, Stephen. “Mid-Passage—The Navajo Tribe and Its First Legal Revolution.” American Indian Law Review 6, no. 2 (1978): 329–70. Navajo leaders embarked on a long-term legal revolution that involved taking slow control of reservation law and order. At first, they followed western legal theories in their courts, but slowly grafted Navajo concepts and made the changes to a judicial system that reflected Navajo common law. 1563. Cruz, Christine Zuni. “Tribal Law as Indigenous Social Reality and Separate Consciousness [Re]incorporating Customs and Traditions into Tribal Law.” Tribal Law Journal 1 (2000–2001): online. http://tlj .unm.edu/articles/ Cruz, a former tribal court judge, has been concerned that present written tribal codes do not reflect tribal values. The sources for many of these contradictions result from the IRA, Courts of Indian Offenses, and CFR courts. 1564. Daniel, Michelle. “From Blood Feud to Jury System: The Metamorphosis of Cherokee Law from 1750–1840.” American Indian Quarterly 11 (Spring 1987): 97–125. The Cherokees adopted Anglo-American law in a calculated effort to retain their lands, even accepting jury law over the traditional blood feud system. Also explores the spiritual, clan, and community foundations for traditional Cherokee law and the external and internal pressures, which led them to change their legal traditions in stages. 1565. Davis, J. B. “Slavery in the Cherokee Nation.” Chronicles of Oklahoma 11 (December 1933): 1056–72. Includes discussion of tribal legal codes related to slavery and the abolition of slavery by treaty after the Civil War. 1566. Edwards, John, with editor’s introduction by John R. Swanton. “The Choctaw Indians in the Middle of the Nineteenth Century.” Chronicles of Oklahoma 10 (September 1932): 392–425. Reprint of an 1880 lecture commenting on Choctaw acculturation. It includes comment on past and present tribal laws.

1567. Fairbanks, Robert A. “The Cheyenne and the Law: A Positivist Inquiry.” Arkansas Law Review 32 (Fall 1978): 403–45. Asks whether the Cheyenne had a viable legal system prior to signing treaties. Fairbanks concludes that they did but questions exactly how modern was their system given its pre-literate nature. 1568. Garrett, Robert D. “Mediation in Native America.” Dispute Resolution Journal 49 (March 1994): 38–45. Unlike the American adversarial model of dispute settlement, tribal communities developed a facilitative process that included the entire community’s participation to restore order. Today, mediation is one of the best methods of alternative dispute resolution so people will still continue to deal with each other after settling the conflict. 1569. Halliburton, Janet. “Black Slavery in the Creek Nation.” Chronicles of Oklahoma 56 (Fall 1978): 298–314. In 1824, Creek laws were formally written, some of which dealt with slavery. These tribal laws were not more lenient than were those of their non-Indian neighbors. The author traces the evolution of these laws up to slavery’s abolition in 1866. 1570. Hanks, Jane Richardson. Law and Status among the Kiowa Indians. Seattle: University of Washington Press, 1966; first edition, 1940. A cultural study of historic nineteenth-century Kiowa law and order. 1571. Harring, Sidney L. “Crazy Snake and the Creek Struggle for Sovereignty: The Native American Legal Culture and American Law.” American Journal of Legal History 34 (October 1990): 364–80. Crazy Snake fought to reject any federal imposition and denial of Creek law. He and his followers were able to rebuild their Creek legal system in ten years. 1572. Hoebel, E. Adamson. The Law of Primitive Man: A Study in Comparative Legal Dynamics. New York: Atheneum, 1968; first published Cambridge, MA: Harvard University Press, 1954. Compares the legal forms of seven societies including the Eskimo, Comanche, Kiowa, and Cheyenne. Hoebel points out the strengths and weaknesses of these traditional legal systems. Eskimo law is shown to maintain social equilibrium without formal institutions, but their society cannot afford the killings this system permits. In comparing the three plains tribes, Hoebel concludes, “Comanche law expressed individualism checked at critical points by social use of other individuals. Cheyenne law expressed a supreme sense of social well-being kept

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flexible by a continuous concern for individualism. The Kiowas never had a clear idea of which they preferred and muddled along trying to serve both ends.” 1573. Karr, Steven M. “Now We Have Forgotten the Old Indian Law: Choctaw Culture and the Evolution of Corporal Punishment.” American Indian Law Review 23, no. 2 (1998–99): 409–23. After the U.S. emerged, the new nation’s corporal punishment for specific crimes became part of Choctaw law, along with other forms of nonChoctaw customs such as flogging. The development of centralized authority in the early nineteenth century was the key to changing Choctaw punishments. 1574. Kawashima, Yasuhide. “The Indian Tradition in Early American Law.” American Indian Law Review 17, no. 1 (1992): 99–108. The English did not desire to learn from tribal common law. English leaders were hostile in many ways but were often sympathetic to tribal traditions. For example, forest fire clearing bans were not imposed on tribal members. 1575. Kawashima, Yasuhide. “The Pilgrims and the Wampanoag Indians, 1620–1691: Legal Encounter.” Oklahoma City University Law Review 23 (Spring and Summer 1998): 115–31. Law was important to the Pilgrims so their first order of business was to create a legal system, but tribal people were independent. Mutual respect waned as the colonists grew in number and became more assertive. Legal imperialism began after the war in 1676. 1576. Kawashima, Yasuhide. Puritan Justice and the Indian: White Man’s Law in Massachusetts, 1630– 1763. Middletown, CT: Wesleyan University Press, 1986. Indian law and English common law were “totally different” and, when they clashed, a one-way transformation occurred, as Indians in New England had to accept white man’s law. Massachusetts’s Indian policy was based on a sense of fairness, but in the sense of a superior civilized society over an uncivilized one. 1577. Knight, Oliver. “Fifty Years of Choctaw Law.” Chronicles of Oklahoma 31 (Spring 1953): 76–95. Surveys tribal constitutional and statutory laws between 1834 and 1884 to illustrate the degree to which Choctaws were influenced by Anglo-American society. Between 1834 and 1867, the Nation established a constitutional government with laws addressing frontier needs. Thereafter new laws met the needs of an increasingly complex industrial and agricultural society.

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1578. Lauderdale, Pat. “Indigenous North American Jurisprudence.” International Journal of Comparative Sociology 38 (June 1997): 131–49. A common jurisprudence theme that cuts across tribal diversity is their reliance on civil sanctions instead of criminal sanctions. Tribal respect for all life forms is the reason behind this approach since tribal law binds all life forms together. 1579. “The Law Governing Tribal Indians.” Harvard Law Review 13 (December 1899): 298–99. In Joes v. Meehan, the Supreme Court ruled that Indians “are subject to the original tribal law as modified by the special United States statutes.” In this case, the eldest son claimed inheritance based on tribal law. 1580. Llewellyn, Karl N. and E. Adamson Hoebel. The Cheyenne Way: Conflict and Case Law in Primitive Jurisprudence. Norman: University of Oklahoma Press, 1941. Includes chapters on military societies, homicide, marriage, and property and inheritance. The authors credit the Cheyenne for their legal genius exceeding that of other primitive societies and for their “utterly clean juristic intuition,” but argue that the Cheyenne legal system “suffered under its absence of legal form.” 1581. Lujan, Carol Chiago and Gordon Adams. “U.S. Colonization of Indian Justice Systems: A Brief History.” Wicazo Sa Reviewe 19 (Fall 2004): 9–23. Despite centuries of trying to take tribal systems of justice away and forcing tribal people to assimilate, tribal methods of conflict resolution are of great interest to non-tribal peoples who are seeking to modify and amend their own methods of justice. 1582. Lupton, Susan. “American Indian Tribal Codes.” Legal References Services Quarterly 1 (Winter 1981): 25–41. Examines and reprints historical and contemporary codes and the Court of Indian Tribal Offensives Code. 1583. Lutz, Donald S. “The Iroquois Confederation Constitution: An Analysis.” Publius, Journal of Federalism 28 (Spring 1998): 99–127. This is the oldest constitution in North America and is worthy of study as a stand-alone political system. The Great Binding Law represents their devotion to liberty because of their opposition to central control. They also understood dual citizenship. This document did not influence the American founding fathers. 1584. Lyons, Oren R. “The American Indian in the Past.” In Exiled in the Land of the Free: Democracy, Indian

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Nations, and the U.S. Constitution, edited by Oren Lyons et al., 14–42. Santa Fe, NM: Clear Light Publishers. Commentary that includes discussion of the Iroquois Great Law of Peace. 1585. MacLachlan, Bruce B. “Indian Law and Puebloan Tribal Law.” In North American Indian Anthropology: Essays on Society and Culture, edited by Raymond J. DeMallie and Alfonso Ortiz, 340–54. Norman: University of Oklahoma Press, 1994. Santa Clara is representative of the Eastern Pueblo type of organization. The analysis includes tribal governance, tribal membership rules, and Martinez v. Santa Clara. 1586. Mehrotra, Ajay K. “Law and the ‘Other’ Karl N. Llewellyn, Cultural Anthropology, and the Legacy of the Cheyenne Way.” Law & Social Inquiry 26 (Summer 2001): 741–75. Recounts legal realist Llewellyn’s and anthropologist Hoebel’s trip to Lame Deer, Montana, in 1935. This was an early collaborative effort between law and anthropology that left an invaluable legacy of legal pluralism. Even though they did marginalize some aspects of Cheyenne culture, the work deserves another look by legal scholars. 1587. Melton, Ada Pecos. “Indigenous Justice Systems and Tribal Society.” Judicature 79 (November–December 1995): 126–33. In tribal systems, all parties are involved, including parents, spouses, children, family, and community to reach a settlement. The American adversarial system will always be at odds with tribal courts that interject cultural mores. 1588. Miller, Bruce G. “Contemporary Tribal Codes and Gender Issues.” American Indian Culture and Research Journal 18, no. 2 (1994): 43–74. Focuses on eight Coast Salish tribes and argues that tribal legal codes are “unexpectedly innovative.” Native legal systems are not simply copies of, or reactions to, the U.S. legal system. The codes often reflect differing views on gender roles from one tribe to the next. 1589. Miller, Bruce G. “Folk Law and Contemporary Coast Salish Tribal Code.” American Indian Culture and Research Journal 19, no. 3 (1995): 141–64. Looks at how eight Coast Salish tribes have incorporated folk law into their tribal codes. Folk law is most often incorporated in codes dealing with outsiders and children, while it is least often used in regards to more contentious internal issues.

1590. Miller, Bruce G. “The Individual, the Collective, and Tribal Code.” American Indian Culture and Research Journal 21, no. 1 (1997): 107–29. Tribal codes in Coast Salish communities protect individuals’ rights, not because they mimic the western legal tradition, but because individualism and communalism “are compatible, and, ultimately, inseparable” in their cultural tradition. 1591. Miller, Bruce G. “Justice, Law, and the Lens of Culture.” Wicazo Sa Review 18 (Fall 2003): 135–49. Discusses efforts to develop indigenous justice systems in the U.S. and Canada. Doing so “requires a shared field of ‘we–you’ interethnic discourse and interaction through a kind of complementarization.” The Upper Skagit tribal court serves as a model of study. 1592. Miller, Bruce G. “Tribal or Native Law.” In A Companion to the Anthropology of American Indians, edited by Thomas Biolsi, 95–111. Malden, MA: Blackwell Publishing, 2004. Tribal law was practical, concerned with maintaining good relations with powerful social reactive others of the non-human category and with justice between people of the human category. Determining guilt was less a concern than reconciliation. Today, different governments have created different tribal law where issues of separation of powers take precedent. 1593. Morse, Bradford W. “Indigenous Law and State Legal Systems: Conflict and Compatibility.” In Indigenous Law and the State, edited by Bradford W. Morse and Gordon R. Woodman, 101–20. Dordrecht, Holland: Foris Publications, 1988. Points to the unsatisfactory nature of the relationship between indigenous law and state legal systems and suggests improvements. 1594. Mueller, J. R. “Restoring Harmony through Nalyeeh: Can the Navajo Common Law of Torts Be Applied in State and Federal Forums?” Tribal Law Journal 2 (2001–2002): online. http://tlj.unm.edu/articles/ Nalyeeh in Navajo traditional tort law is intended to make the victim whole, usually involving compensation without anger, also called restorative justice. Based on the Cheromiah decision, Mueller argues, “tribal law . . . can be applied in tribal, state, and federal forums.” 1595. Murray, Virginia. “A Comparative Survey of the Historic Civil, Common, and American Indian Tribal Law Responses to Domestic Violence.” Oklahoma City University Law Review 23 (Spring and Summer 1998): 433–57.

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All cultures experience domestic violence and the Cherokee, Cheyenne, and Navajo have shared similar methods of dealing with it: through avoidance, preventing conditions from escalating into domestic violence, and creating differing tribal institutions to reduce such activities. 1596. Nader, Laura and Jay Ou. “Idealization and Power: Legality and Tradition in Native American Law.” Oklahoma City University Law Review 23 (Spring and Summer 1998): 13–42. Dismisses the idealized Indian that Ruth Benedict created and moves toward realism, examining how alternative dispute resolution entered Indian country and ways that it is being used by tribes to navigate through U.S. efforts to use reservations as nuclear dumps. 1597. National Committee and Council. Laws of the Cherokee Nation. Knoxville, TN: Herkskill & Brown, 1821. The Cherokee began writing their laws early in the nineteenth century. This is a copy of the laws drafted before their famous 1827 constitution. 1598. Newell, William B. Crime and Justice among the Iroquois. Montreal: Caughnawaga Historical Society, 1965. Examines historical crime and punishment among the Iroquois, including crime and its relationship to their society, reasons for conformity, theft, adultery, punishment, and offenses that rarely occurred. 1599. Papke, David Ray. “How the Cheyenne Indians Wrote Article 2 of the Uniform Commercial Code.” Buffalo Law Review 47 (Fall 1999): 1457–85. Karl Llewellyn’s work with the Cheyenne is a neglected influence on his drafting of Article 2 for the Uniform Commercial Code that outlines modern sales law. He found the Cheyenne to be legal realists and they were “crucial to the genesis of modern sales law.” 1600. Pommersheim, Frank. “A Path Near the Clearing: An Essay on Constitutional Adjudication in Tribal Courts.” Gonzaga Law Review 27, no. 3 (1991/1992): 393–416. Law has played a pivotal role in tribal survival and “tribal constitutional decision making is also vital” because it deals with the local tribal communities and their future concerns. 1601. Porter, Robert B. “Strengthening Tribal Sovereignty through Peacemaking: How the Anglo-Americans’ Legal Tradition Destroys Indigenous Societies.” Columbia Human Rights Law Review 28 (Winter 1997): 235–305.

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Tribes “have lost or are losing their inherent ability to resolve the disputes that arise within them.” As tribal courts adapt western legal traditions, they may increase their sovereignty, but do so at the expense of losing their traditions. If the American forces of colonization are not stopped, tribal sovereignty will further weaken in scope and power. 1602. Porter, Robert B. “The Tribal Law and Governance Conference: A Step towards the Development of Tribal Law Scholarship.” Kansas Journal of Law & Public Policy 7 (Winter 1997): 1–7. Stresses the need for tribal people and non-Indians versed in tribal law to rewrite federal Indian law. 1603. Pospisil, Leopold. “E. Adamson Hoebel and the Anthropology of Law.” Law & Society Review 7 (Summer 1973): 537–59. Hoebel and Llewellyn’s “case study method of legal cases,” along with Llewellyn’s realism, had a great impact on anthropology. Hoebel’s work has aided the study of traditional tribal jurisprudence. 1604. Quinn, William W., Jr. “‘Speaking Words of Wisdom—“Let It Be”’: Law and Sanction among the Hopi.” Law & Anthropology 5 (1991): 275–94. From 1890 to the present, Hopi ethics have undergone change, but the Hopi still adhere to a nonaggression approach. This works because they believe in decision-making by consensus. The worst that can happen to a Hopi is to be expelled from the community. 1605. Ragsdale, John W., Jr. “Anasazi Jurisprudence.” American Indian Law Review 22, no. 2 (1997–98): 393–444. Describes Anasazi jurisprudence, which was founded on the belief that everything was actively interlinked. They believed they had a moral responsibility to maintain a balance between all things. Also considers Anasazi traditions’ influence on John Collier’s musings that became part of the IRA. 1606. Ragsdale, John W., Jr. “The Rise and Fall of the Chacoan State.” UMKC Law Review 64 (Spring 1996): 485–545. Overview of the pre-Columbian history of tribal communities in the San Juan basin that also considers community jurisprudence. 1607. Reid, John Phillip. “The European Perspective and Cherokee Law.” Appalachian Journal 2 (Summer 1975): 286–93. Describes differences between Cherokee and English law. Words must be defined carefully when studying Cherokee legal concepts.

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1608. Reid, John Phillip. A Law of Blood: Primitive Law of the Cherokee Nation. DeKalb: Northern Illinois University Press, 2006; first published New York: New York University Press, 1970. Studies traditional Cherokee social order, governance, and law, including the law of homicide involving clan retribution or compensation. Even after adopting a legal system of state-imposed sanctions, they held on to their emphasis on forgiveness rather than punishment. They adopted American Common Law and made it serve their needs. 1609. Reid, John Phillip. Patterns of Vengeance: Crosscultural Homicide in the North American Fur Trade. Pasadena, CA: Ninth Judicial Circuit Historical Society, 1999. French, British, and American fur traders adopted aspects of Native American traditional law, including blood vengeance, but this was difficult to carry out cross-culturally. Non-Indians often misunderstood and misapplied it, not fully understanding the cultures they were interacting with. 1610. Reid, John Phillip. “A Perilous Rule: The Law of International Homicide.” In The Cherokee Indian Nation: A Troubled History, edited by Duane H. King, 33–45. Knoxville: University of Tennessee Press, 1979. The traditional Cherokee clan basis for dealing with homicide was based on the principle of a life for a life. When tribal members attempted to extend this legal principle to their dealings with whites, the results were disastrous. 1611. Rivers, Theodore John. “The Nez Percé Laws (1842): The Introduction of Laws Foreign to an Independent People.” Indian Historian 11 (Summer 1978): 15–24. White man’s law had a strong effect on Nez Percé life. In 1842, white laws were imposed on them. The Nez Percé believed, through the missionaries’ law, they could increase an individual’s power. 1612. Rivers, Theodore John. “A Study of the Laws of the Ottawa Indians as Preserved in the Ottawa First Book (2850).” Kansas Historical Quarterly 42 (Autumn 1976): 225–36. It is difficult to determine whether any of these laws predated the tribe’s relocation to Kansas, but there is evidence that at least some reflect adaptation and modernization of tribal custom to meet changing circumstances. Twenty-five laws are listed, most of which focus on criminality. 1613. Robinson-Weber, Sandra. “Native Americans before the Bench: The Nature of Contrast and Conflict in Native American Law Ways and Western Legal Sys-

tems.” Social Science Journal 19, no. 3 (1982): 47–57. Discusses the conflict between tribal “living laws” and the bureaucratic formality of Anglo-American laws. Examples show that law must be representative of the society’s values, which it serves. 1614. Sekaquaptewa, Pat. “Evolving the Hopi Common Law.” Kansas Journal of Law & Public Policy 9 (Summer 2000): 761–91. Describes the controversial creation of the central constitutional government that includes all the villages, and the council’s 1972 creation of the tribal courts at Hopi, but without their own separation of powers. Currently there are judicial gaps between the tribal council, tribal courts, and villages. 1615. Stetson, Catherine Baker. “Decriminalizing Tribal Codes: A Response to Oliphant.” American Indian Law Review 9, no. 1 (1981): 51–81. Discusses the differences between criminal and civil offenses and suggests areas for tribal code revision. After Oliphant, the tribes suffered a defeat as the Supreme Court denied them criminal jurisdiction over non-Indians on the reservations. 1616. Strickland, Rennard. “Address: To Do the Right Thing: Affirming Cherokee Traditions of Justice under Law.” American Indian Law Review 17, no. 1 (1992): 337–46. From the Cherokee cases of the Marshall trilogy to the present, the Cherokees have used law. They demonstrated that a tribe could maintain its legal system during periods of great change. 1617. Strickland, Rennard. “American Indian Law and the Spirit World.” American Indian Law Review 1 (Winter 1973): 33–53. Examines Cherokee law, which is divided into differing categories, including spirit deviations, community deviations, clan deviations, and individual deviations, and discusses punishments for committing unethical acts. 1618. Strickland, Rennard. “Corpus of the Written Cherokee Law.” Law Library Journal 67 (February 1974): 110–19. Describes the importance of the legal system to Cherokee symbolism. 1619. Strickland, Rennard. Fire and Spirits: Cherokee Law from Clan to Court. Norman: University of Oklahoma Press, 1975. The British influenced Cherokee legal practices by encouraging the centralization of their government leadership. Eventually they wrote a constitution and code of laws and created a court system. However,

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the element of Cherokee common law designed to protect the nation remained. 1620. Strickland, Rennard. “From Clan to Court: Development of Cherokee Law.” Tennessee Historical Quarterly 31 (Winter 1973): 316–31. Traces the evolution of Cherokee law by focusing on homicide. Cherokee law, first written in 1808, was sophisticated. The secularization of Cherokee government began in 1717, it moved toward a council, and eventually a constitution was accepted in 1827.

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Ramah, NM: Ramah Navajo High School Press, 1972. An instructional text teaching traditional and modern Navajo law with units focused on consumer education, an overview of Navajo law and the legal system, law and the family, and law and community life.

1621. Strickland, Rennard. “Wolf Warriors and Turtle Kings: Native American Law before the Bluecoats.” Washington Law Review 72 (October 1997): 1043–62. Examines the pre-reservation Comanche and Creek legal systems.

1627. Waldman, Hilary. “A Justice System Develops, Based on Tribal Law.” In Native Americans, Crime, and Justice, edited by Marianne O. Nielsen and Robert A. Silverman, 288–92. Boulder, CO: Westview Press, 1996. The economic success of the Mashantucket Pequot Tribe’s Foxwoods casino enabled the tribe to build a complete infrastructure providing free services. The casino provides the tribe with resources that other tribes do not have. As a result, they can enforce their own laws, while poorer tribes cannot.

1622. Thompson, Joseph J. “Law amongst the Aborigines of the Mississippi Valley.” Illinois Law Quarterly 6 (April 1924): 204–23. Studies the codes of several tribes living in the Upper Mississippi River country, including punishment for murder and how divorce was conducted. The Shawnee Prophet’s criminal code is published.

1628. Waring, Antonio J. Laws of the Creek Nation. Athens: University of Georgia Press, 1960. Reprint of the 1824 laws of the Creek Nation. These laws were written and reflect the Creek concerns with maintaining law and order on their lands among themselves, blacks, and other outsiders. Prior to 1817, laws were preserved by memory.

1623. Traisman, Ken. “Native Law and Order among Eighteenth-Century Cherokee, Great Plains, Central Prairie, and Woodland Indians.” American Indian Law Review 9, no. 2 (1981): 273–87. Reviews the evolution of indigenous law and order systems.

1629. Wigmore, John H. “Some Legal Systems That Have Disappeared.” Louisiana Law Review 2 (1939– 1940): 1–30. Divides the Western Hemisphere’s indigenous legal systems into North American, Mexican, and Andean and dismisses them as dead in his discussion of lost legal systems worldwide.

1624. Tso, Tom. “Moral Principles, Traditions, and Fairness in the Navajo Nation Code of Judicial Conduct.” Judicature 76 (June–July 1992): 15–21. The Navajo courts adopted this new judicial code that uses concepts from the ABA’s Model Code of Judicial Conduct and incorporates Navajo values. 1625. Tso, Tom. “The Navajo Concept of Justice.” Law & Anthropology 6 (1991): 1–6. When an individual acts improperly, the way for Navajos to correct the problem is for everyone with knowledge of the action to speak. Justice comes when all involved in the act are also involved in the correction. This system of justice continues in the Navajo peacemaker courts. In the formal Navajo courts, the judges must be Navajo and speak the language. The tribal government enacted a Navajo bill of rights in 1967. 1626. Vicenti, Dan, Leonard B. Jimson, Stephen Conn, and M. J. L. Kellogg, eds. The Law of the People: Dine Bibee Haz’á·anii: A Bicultural Approach to Legal Education for Navajo Students, four volumes.

1630. Williams, Robert A., Jr. “The Algebra of Federal Indian Law: The Hard Trail of Decolonizing and Americanizing the White Man’s Indian Jurisprudence.” Wisconsin Law Review, no. 2 (1986): 219–99. To maintain their power, western colonizers deny tribal peoples’ law any legitimacy. This continues today and to correct that problem, an American law of tribal nations should replace the Eurocentric imported colonial laws. 1631. Williams, Robert A., Jr. Linking Arms Together: American Indian Treaty Visions of Law and Peace, 1600–1800. New York: Oxford University Press, 1997. History of the legal theories and practices that tribal people attempted to employ in their relationships with Western European nations during these two centuries. Williams begins with contemporary indigenous people’s efforts to decolonize their communities by examining the importance of first encounters. Despite the intrusion of the Western legal system, tribal law continues to survive.

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1632. Yazzie, Robert. “‘Hozho Nahasdlii’—We Are Now in Good Relations: Navajo Restorative Justice.” St. Thomas Law Review 9 (Fall 1996): 117–24. The Navajos have taken a two-pronged approach to justice in the courts. They realize they need to deal with violent offenders, but they also need to stress healing in accordance with their antiauthoritarian views. 1633. Yazzie, Robert. “Life Comes from It: Navajo Justice Concepts.” New Mexico Law Review 24 (Spring 1994): 175–90. The Chief Justice of the Navajo Nation provides background to understanding Navajo legal concepts as they deal with divorce, gang violence, alcoholrelated crime, child neglect, and domestic violence. Instead of using the adversarial vertical system, the Navajo Nation puts a horizontal justice system in place where no person is either above or below the law. 1634. Zion, James W. “Civil Rights in Navajo Common Law.” University of Kansas Law Review 50 (April 2002): 523–44. The revival of Navajo common law has strengthened Navajo concepts of civil rights. Due process is the most litigated legal issue in Navajo courts. Despite success in building a community court system, the tribe has much more to accomplish. 1635. Zion, James W. “Justice as Phoenix: Traditional Indigenous Law, Restorative Justice, and the Collapse of the State.” In Native Americans and the Criminal Justice System, edited by Jeffrey Ian Ross and Larry

Gold, 51–65. Boulder, CO: Paradigm Publishers, 2006. These two movements “are the Phoenix because they arise from the ashes of the collapse of the state” and, unlike contemporary legal systems, these justice models “offer promise for effective participatory democracy.” 1636. Zion, James W. “Searching for Indian Common Law.” In Indigenous Law and the State, edited by Bradford W. Morse and Gordon R. Woodman, 121–48. Dordrecht, Holland: Foris Publications, 1988. Suggests standards and guidelines to use customary law and incorporate it into state legal systems. 1637. Zion, James W. “The Use of Navajo Custom in Dealing with Rape.” Law & Anthropology 6 (1991): 131–67. In one case, the crime of rape was prosecuted in a non-Indian court. Tribal culture could not be accommodated because of the court’s cultural biases. This case illustrates what happens when one culture’s judicial machinery sits in judgment of another’s. 1638. Zion, James W. and Robert Yazzie. “Indigenous Law in North America in the Wake of Conquest.” Boston College International and Comparative Law Review 20 (Winter 1997): 55–84. Tribal nations developed different approaches to justice that cannot be replicated in some situations. Alternative dispute resolution is not the same practice as Navajo peacemaking because the concepts sprouted from different cultural premises.

Chapter 18 Tribal Courts and Dispute Resolution

1639. Arrow, Dennis W. “Oklahoma’s Tribal Courts: A Prologue, the First Fifteen Years of the Modern Era, and a Glimpse at the Road Ahead.” Oklahoma City University Law Review 19 (Spring 1994): 5–80. The beginning of the modern era for tribes in Oklahoma began with the 1978 solicitor opinion that they could create courts, which led to the establishment of the first Anadarko area tribal court the next year. State and tribal courts skirmished over the next fifteen years. Examines the important cases that strengthened tribal courts.

of Indian Offenses in 1883, their modification and changes through the IRA, to the passage of the ICRA that required the writing of a “Model Code for the Administration of Justice by Courts of Indian Offenses.” Despite evidence that half of the tribal courts were following practices such as rights to counsel and jury trial, Congress forced ICRA on them, at great cost. 1643. Benge, William B. “Law and Order on Indian Reservations.” Federal Bar Journal 20 (Summer 1960): 223–29. The increasingly limited role of federal jurisdiction and the expanding importance of tribal courts are major trends in reservation law and order. Although some tribes have better courts than others, many tribal judges possess great wisdom.

1640. Austin, Raymond D. “Freedom, Responsibility and Duty: ADR and the Navajo Peacemaker Court.” Judges’ Journal 32 (Spring 1993): 8–11, 47–48. In 1982, the Navajo government and courts decided to examine “Alternative Dispute Resolutions” for settling disagreements by following community culture and tradition. The Navajo Peacemaker Court was created that year using traditional jurisprudence without the limits of a code.

1644. Birkett, Peter W. “Indian Tribal Courts and Procedural Due Process: A Different Standard.” Indiana Law Journal 49 (Summer 1974): 721–39. After ICRA’s passage, it was assumed that procedural due process constraints would be applied to tribal courts. Birkett examines tribal courts and concludes that they will provide professional counsel to plaintiffs and defendants.

1641. Barsh, Russel Lawrence. “Putting the Tribe in Tribal Courts: Possible? Desirable?” Kansas Journal of Law & Public Policy 8 (Winter 1999): 74–96. When moneys began to enter tribal law and order systems in the 1970s to professionalize these reservation institutions, the courts earned outsider respect, but lost the respect of tribal members, thus forcing tribal judges to incorporate tribal law into their court system. Tribal judges must continue to dive into tribal law to make their courts truly courts of the tribal people that dispense indigenous justice.

1645. Bluehorse, Philmer and James W. Zion. “Hozhooji Naat’aanii: The Navajo Justice and Harmony Ceremony.” Mediation Quarterly 10 (Summer 1993): 327–37. The Navajos wanted individuals to participate in dispute resolution and the model they developed was to use traditional justice in a modern setting, thereby creating the Navajo Peacemaker court in 1982. This model is based on the Navajo horizontal justice system that stresses equality and clan relationships. The peacemaker is not a mediator in the Western sense.

1642. Barsh, Russel Lawrence and J. Youngblood Henderson. “Tribal Courts, the Model Code, and the Police Idea in American Indian Policy.” Law and Contemporary Problems 40 (Winter 1976): 25–60. Traces the relationship between jurisdiction and tribal freedom through the development of the Court 169

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1646. Brakel, Samuel J. American Indian Tribal Courts: The Costs of Separate Justice. Chicago, IL: American Bar Association, 1978. In examining Pueblo courts of custom, new tribal authorized courts, and Courts of Indian Offenses, Brakel concludes that too many problems exist in these courts. The judges need to be removed from the political process, better representation is necessary, and more professional personnel are needed. There is a difference between tribal leaders’ goals and the dreams of tribal populations. 1647. Brakel, Samuel J. “American Indians Tribal Courts.” In Indians and Criminal Justice, edited by Laurence French, 147–62. Totowa, NJ: Allanheld, Osmun & Co., 1982. Tribal courts are more humane, communityoriented, and less inclined to legalism than is the Western model that lends itself to mediation, but tribal courts do not work very well and improvements will take time. 1648. Brakel, Samuel. “American Indian Tribal Courts: Separate? ‘Yes’ Equal? ‘Probably Not.’” American Bar Association Journal 62 (August 1976): 1002–6. Tribal courts have poor physical structures and unqualified judges and prosecutors that the councils often pressure. The courts are rarely used for civil suits, but hear many alcohol-related minor crimes. Despite strong support for tribal sovereignty, they offer little defense of individual civil rights. 1649. Brandfon, Fredric. “Tradition and Judicial Review in the American Indian Tribal Court.” UCLA Law Review 38 (April 1991): 991–1018. Tribal courts’ failings center on absence of traditional justice and inability to review tribal council decisions. These shortcomings “may be integrated on a functional level” and developing judicial review will strengthen tribal identity. 1650. Brown, Howard L. “The Navajo Nation’s Peacemaker Division: An Integrated, Community-Based Dispute Resolution Forum.” American Indian Law Review 24 (1999–2000): 297–308. Traditional Navajo dispute resolution practices attempted to reach non-coercive solutions, restoring balance and harmony. The Peacemaker Division, created in 1982, has successfully resolved numerous disputes and is increasingly utilized by the Navajo judicial system. 1651. Brown, Margery H. and Brenda C. Desmond. “Montana Tribal Courts: Influencing the Development of Contemporary Indian Law.” Montana Law Review 52 (Summer 1991): 211–305.

Montana tribal courts have been central in developing contemporary tribal law. Farmers Union and Iowa Mutual made it nearly impossible for any practicing attorney in Montana to avoid tribal law and courts. 1652. Brownlee, E. Gardner. The American Indian Tribal Court. Helena, MT: Montana Governor’s Crime Control Commission, 1971. A manual for tribal courts considering tribal common law and also federal statutes, such as ICRA. Topics include the establishment of a tribal judicial administration, the creation of a tribal code, the absence of lawyers, criminal and civil procedure, jury trials, and tribal police. 1653. Cheski, Cynthia. “Cultures Meet on the Tribal Circuit.” Human Rights 20 (Summer 1993): 25. Human-interest essay on William Bluehouse, judge of Laguna Pueblo Tribal Court, discussing the crossing of tribal law and Western law. 1654. Clarkson, Gavin. “Reclaiming Jurisprudential Sovereignty: A Tribal Judiciary Analysis.” University of Kansas Law Review 50 (April 2002): 473–521. Examines the Choctaw court system and the changes that the tribal courts have made over the years, moving from a CFR system to a tribally created judiciary. This is one path toward greater sovereignty. 1655. Collins, Richard, Ralph W. Johnson. and Kathy Imig Perkins. “American Indian Courts and Tribal SelfGovernment.” American Bar Association Journal 63 (June 1977): 808–15. Criticizes Samuel J. Brakel’s 1976 essay for legal and factual errors regarding tribal courts. Tribal courts are well established and are part of tribal governance based on inherent tribal sovereignty. Some tribes have rewritten their codes to fit current needs. 1656. “Comments.” Yale Law Journal 30 (January 1921): 293–94. In 1797, New York passed a statute creating a government for the Onondaga, Seneca, Tuscarora, Saint Regis, and Shinnecock Tribes and included provisions for a peacemaker court. In People ex rel. Mukins v. Jimerson, the New York court ruled that the peacemaker court could not overstep its power. 1657. Conlan, Czarina C. “Chickasaw Courts, with Reminiscences of Judge John H. Mashburn.” Chronicles of Oklahoma 5 (December 1927): 400–404. Lists the names of judges who presided over the Rock Springs Court and attorneys who served there, and offers a few details about the courts’ operation.

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1658. Cooter, Robert D. and Wolfgang Fikentscher. “Indian Common Law: The Role of Custom in American Indian Tribal Courts (Part I).” American Journal of Comparative Law 46 (Spring 1998): 287–337; cont. 46 (Summer 1998): 509–80. The authors visited reservation tribal courts and interviewed tribal judges about their administration of the law. As time passed, tribal justice broke with older principles that governed past procedures. Tribal judges make law and “the foundation of any common law system [requires] . . . a vibrant intellectual community of legal experts.” The constitutions of each tribe that the authors examined followed a Western format. When traditionalists work in reservation offices, they provide traditional tribal law for others to use. Allotment did not always mean privatization. 1659. Cooter, Robert D. and Wolfgang Fikentscher. Is There Indian Common Law?: The Role of Custom in American Indian Tribal Courts. Berkeley, CA: University of California School of Law, Center for the Study of Law and Society, 1992. The authors interviewed tribal judges and found that tribal social norms have influenced their decisions. “However, only a few tribal courts systematically refine and extend precedent.” 1660. Costello, Nancy A. “Walking Together in a Good Way: Indian Peacemaker Courts in Michigan.” University of Detroit Mercy Law Review 76 (Spring 1999): 875–901. The Grand Traverse Band of Ottawa and Chippewa Indians in Michigan restored peacemaker courts. There are no judges or lawyers, only the victims, the wrongdoer, and the peacemaker. 1661. Davis, Laurence. “Court Reform in the Navajo Nation.” Journal of the American Judicature Society 43 (August 1959): 52–55. In 1950, the Navajos assumed control of the Navajo Courts of Indian Offenses and began paying their own judges. Eight years later, the council abolished these courts and created the Trial Court of the Navajo Tribe and a court of appeals. The chairman appointed seven judges with the approval of the council. The new trial court had the ability to develop uniform rules for operation. Also in 1959, the tribe assumed control over the reservation police force from the BIA. 1662. Deer, Sarah. Tribal Criminal Law and Procedure. Walnut Creek, CA: AltaMira Press, 2004. Examines Western criminal law and tribal law and how the two systems blend and remain separate within the tribal court system. Tribal court cases are

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included, as well as important Western court decisions that directly affected tribal courts. 1663. Deloria, Vine, Jr. and Clifford Lytle. American Indians, American Justice. Austin: University of Texas Press, 1983. A legal study of the federal and Indian court systems’ treatment of American Indians from the first treaties to the present. These are contrasted with the rise of tribal forms of government and tribal court systems from the traditional to the modern. Federal intervention weakened these traditional systems. 1664. Duryea, Michelle and Jim Potts. “Story and Legend: Powerful Tools for Conflict Resolution.” Mediation Quarterly 10 (Summer 1993): 387–95. Public Exchange involving Jim Potts, a Canadian Mounted Police of Objiwa descent, regarding the importance of stories in settling tribal disputes. Stories are important to First Nations because they communicate values and ways to mend conflicts. They provide a means for theory and practice to work together in peacemaking. 1665. Edmondson, Ed and June E. Edmondson. “The Creek Nation’s Marbury v. Madison: Preferred Management Corp. v. National Council of the Muscogee (Creek) Nation.” Federal Bar News and Journal 38 (March 1991): 77–79. The Supreme Court of the Muscogee Nation decided in Preferred Management Corp. v. National Council of the Muscogee (Creek) Nation on the same question as Marbury. 1666. Endreson, Douglas B. L. “The Challenges Facing Tribal Courts Today.” Judicature 79 (November– December 1995): 142–46. If tribal courts can succeed in meeting new challenges, they will help their tribes achieve greater home rule. 1667. Fahey, Richard P. “Native American Justice: The Courts of the Navajo Nation.” Judicature 59 (June–July 1975): 10–17. Despite being a community that relies on public pressure to maintain order, the Navajo Nation has developed a common law adversary court system with rigid rules to deal with the outside world and their own changing world. 1668. Flies-Away, Joseph and Carrie E. Garrow. Crow Tribal Courts in the 21st Century: Changing Paths, Strengthening the Vision. Cambridge, MA: Harvard Project on American Indian Economic Development, Malcolm Wiener Center for Social Policy, John F. Kennedy School of Government, Harvard University, 1999.

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Because it is not a separate branch of government, the tribal court system has faced difficulties administering justice. A separate judiciary should be created through an ordinance until such time as it can be permanently established through constitutional reform. Doing so will increase Crow respect for their court system. 1669. Gibrusy, John. “Courting Trouble.” ABA Journal 86 (March 2000): 68–69. Tribal courts have accepted more responsibility, and maintaining the fragile relationship with the U.S. has become more difficult as their funding and power is diminishing. 1670. Goldberg, Carole E. “Overextending Borrowing: Tribal Peacemaking Applied to Non-Indian Disputes.” Washington Law Review 72 (October 1997): 1003–19. Some legal scholars find no validity in crosscultural importation of law, but others embrace such legal borrowing. Western legal systems need strands from tribal peacemaker courts that lend themselves to the Western system. 1671. Goldstein, Michael S. Building Support for the Development of the Hualapai Tribal Court. Harvard Project on American Indian Economic Development, John F. Kennedy School of Government, Cambridge, MA: Harvard University, April 1998. Sovereignty is the Hualapai’s most important asset and a strong court is one of the resources necessary to develop that sovereignty. As the court’s importance grows, there is not a correlating tribal support for it. This lack of community support limits the court’s budget while the caseload increases. Goldstein recommends ways for the court to increase its efficiency and community standing. 1672. Grogan, Susan. “The Blackfeet Tribal Court.” Legal Studies Forum 21, no. 4 (1997): 485–501. Discusses the workings, strengths, and shortcomings of the tribal court system. 1673. Gross, Eric Kenneth. “Perceptions of Justice: The Effect of Procedural Justice in Navajo Peacemaking.” In Navajo Nation Peacekeeping: Living Traditional Justice, edited by Marianne O. Nelson and James W. Zion, 115–24. Tucson: University of Arizona Press, 2005. To determine if peacemaker courts really work, statistical data had to be gathered and analyzed. The data revealed that Navajos favored the more open peacemaker courts over the closed tribal courts that followed Western models. The peacemaker courts “had a reoffending rate about 60 percent lower than

cases processed in family court,” but more work is needed to verify this figure. 1674. Haberfeld, Steven and Jon Townsend. “Power and Dispute Resolution in Indian Country.” Mediation Quarterly 10 (Summer 1993): 405–22. Examines how suited negotiation and mediation are to tribal dispute resolutions. They have potential, but they must be used in proper context. Also focuses on the necessary pre-conditions for any negotiation or mediation. 1675. Holly, Marilyn. “Navajo Criminal Justice: A Jungian Perspective.” In Native Americans and the Criminal Justice System, edited by Jeffrey Ian Ross and Larry Gold, 17–34. Boulder, CO: Paradigm Publishers, 2006. Discusses Navajo philosophy to demonstrate that the Navajo Peacemaker Court’s conflict resolution model is about healing rather than guilt and punishment. 1676. Huber, Marg. “Mediation around the Medicine Wheel.” Mediation Quarterly 10 (Summer 1993): 355–65. Describes the development of a model for tribal people to consider as an alternative venue for dispute resolution. This system is flexible and has cultural components enabling the process to address the contemporary needs of the urban Vancouver community. 1677. Hunter, Mary Jo B. “Tribal Court Opinions: Justice and Legitimacy.” Kansas Journal of Law & Public Policy 8 (Winter 1999): 142–46. Discusses the importance of tradition in courts. As a tribal court justice and a law clinic instructor, Hunter argues that judges must write their decisions for the people, not themselves. 1678. Joh, Elizabeth E. “Custom, Tribal Court Practice, and Popular Justice.” American Indian Law Review 25, no. 1 (2000–2001): 117–32. Customary tribal court practices are best understood as forms of popular justice rather than practices that are uniquely American Indian. Popular justice refers to court reforms in the U.S. and abroad that contrast with conventional Western law models. Tribes can pursue self-governance without expending energy trying to institutionalize “custom” in their courts. 1679. Johnny, Ronald Eagleye. “The Duckwater Shoshone Drug Court, 1997–2000: Melding Traditional Dispute Resolution with Due Process.” American Indian Law Review 26, no. 2 (2001–2002): 261–86. Explains how “this successful form of therapeutic jurisprudence can be replicated by other Western Shoshone and Northern Pauite tribes.” It is possible

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and desirable to meld drug court practices with tribal traditional dispute resolution. 1680. Jones, B. J. “Tribal Courts: Protectors of the Native Paradigm of Justice.” St. Thomas Law Review 10 (Fall 1997): 87–93. An appellate judge for several tribal courts writes that tribal courts have the difficult task of incorporating cultural values into their decisions, while at the same time accommodating Western court procedures to gain favorable recognition. They must do so because native concepts of justice puzzle outsiders. 1681. Kickingbird, Kirke. “‘In Our Image . . . After Our Likeness:’ The Drive for the Assimilation of Indian Tribal Courts.” American Criminal Law Review 14 (Spring 1976): 675–700. The fear of terminating tribal courts and forcing tribal populations to use local and state courts reveals the ongoing depth of assimilation policies. It is imperative that tribal courts continue to exist. Whites have nothing to fear from entering the tribal judiciary. 1682. Lawrence, William J. “Tribal Injustice: The Red Lake Court of Indian Offenses.” North Dakota Law Review 48 (Summer 1974): 639–59. Studies the operation of the Red Lake Tribal Court of Indian Offenses created in 1884. The court was developed to destroy tribal culture, but has not achieved that goal, instead becoming the protector of tribal culture and identity. A new and independent court structure should be developed.

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1685. Littlefield, Daniel F., Jr. and Lonnie E. Underhill. “The Judiciary of the Western Cherokee Nation, 1839–1876.” Pacific Historian 22 (Spring 1978): 38–54. The Western Cherokee adopted a written constitution in 1839 and created a court system. The 1866 reconstruction treaty with the U.S. preserved the Cherokee court system, but after additional reforms in 1873, the outdated criminal laws and court procedures were doomed. Oklahoma’s admission as state ended the Western Cherokee’s court system. 1686. Lockwood, Patricia. “Judge John Martin: First Chief Justice of the Cherokees.” Chronicles of Oklahoma 64 (Spring 1986): 61–73. Martin became first Chief Justice of the Cherokee Supreme Court in 1839 and died shortly thereafter. The brief biography concentrates on his domestic life and the tribe’s experience during the removal crisis. 1687. Long, Jack. “A Special Kind of Justice.” Wassaja/ Indian Historian 13 (November 1980): 8–12. Chief Salish tribal judge Donald Dupuis describes his workday and cases that he presides over in tribal court. He also describes his association with the National American Indian Judges Association and his support for the organization’s tribal code updates and training session. His personal view of justice is based on restitution. 1688. Lowry, Daniel L. “Developing a Tribal Common Law Jurisprudence: The Navajo Experience, 1969–1992.” American Indian Law Review 18, no. 2 (1993): 379–446. Even though tribal courts are part of the outsiders’ assimilation policies, the Navajo court system has changed, grown, and evolved into a mature and dutiful institution. Their courts have built on Navajo common law for the last quarter century. Includes a table of Navajo decisions.

1683. Lednicer, Oliver. “The Peacemaker Court in New York State.” Intramural Law Review of New York University 14, no. 3 (1959): 189–96. In 1848, the Seneca drafted a tribal constitution and gave it to New York asking the state to legislate on matters not included Allegany, Cattaraugus, and Tonawanda Reservations all have peacemaker courts where the tribes elect three judges and the eldest is presiding officer. During termination, these courts were attacked and when Congress pushed state jurisdiction on the Native Americans of New York, the peacemaker courts practiced concurrent jurisdiction.

1689. McCoy, Melody. “The Future of Tribal Courts.” Human Rights 20 (Summer 1993): 22–25. There are similarities between tribal and non-tribal courts, but there often is no separation of powers between tribal courts and the legislative–executive branches of tribal government.

1684. Lieder, Michael D. “Navajo Dispute Resolution and Promissory Obligations: Continuity and Change in the Largest Native American Nation.” American Indian Law Review 18, no. 1 (1993): 1–71. Despite the hardships they have faced since 1930, Navajos have created an excellent court system. They employ both adjudicate resolution and mediation, the former when one of the litigants is a nonIndian and the latter for Navajos.

1690. Mansfield, Emily. “Balance and Harmony: Peacemaking in Coast Salish Tribes of the Pacific Northwest.” Mediation Quarterly 10 (Summer 1993): 339–53. Tribal courts have two major goals, expressing and protecting tribal sovereignty internally and externally, and serving as models of the tribal community’s values. In 1979, fifteen tribes created the Northwest Intertribal Court System to meet these

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obligations. Six NICS nations added peacemaker courts to reflect traditional justice where families were central to community dispute resolution. Many of the values of the peacekeeping process have roots that extend back to traditional Salish practices. 1691. Meyer, Jon’a F. “Bit H’a’i’ a’a’zh (I Am His Brother): Can Peacemaking Work with Juveniles?” In Navajo Nation Peacekeeping: Living Justice, edited by Marianne O. Nielsen and James W. Zion, 125–42. Tucson: University of Arizona Press, 2005. The Navajo Nation initiated the youth peacemaking program Yaa Da’ Ya in 1994 to conduct direct work with juveniles and their families. The program also tested the peacemaking process with younger tribal members and ended in 1997. The concept had potential for success, but the lack of parental support and parenting skills were obstacles to long-term success. 1692. Meyer, Jon’a F. “History Repeats Itself: Restorative Justice in Native American Communities.” Journal of Contemporary Criminal Justice 14, no. 1 (1998): 42–57. Historically, many tribes practiced restorative justice, but now most tribal courts follow Western laws and legal procedures. Using the Navajo peacekeeping court as a model, Meyer examines the shift from restorative justice to Western adversarial systems and back again. 1693. Milani, Vincent C. “The Right to Counsel in Native American Tribal Courts: Tribal Sovereignty and Congressional Control.” American Criminal Law Review 31 (Summer 1994): 1279–1301. Congress imposed ICRA on tribes and incorporated Western legal norms to comply with the differing standards of law. Federal law still denies tribes the opportunity to hear “an uncounseled tribal conviction . . . as a factor to enhance the sentence in a subsequent federal proceeding.” This demonstrates a lack of support for tribal proceedings and threatens the dignity of tribal court procedures. Congress may change this relationship with the Indian Tribal Justice Act that would eliminate the imposition of unreasonable standards on tribal courts. 1694. Modern American Courts in General, The Tribal Courts in Particular, Program and Proceedings, Southwest Indian Tribal Courts Conference. Tucson: University of Arizona, 1960. This conference focused on the modern tribal courts and their relationship to federal and state courts. There are three different court systems. Participants’ papers range from the rules of evidence, duties of a tribal judge, keeping proper records, pro-

cedures to follow in civil and criminal cases, and a demonstration tribal court session. 1695. Myers, Joseph A. and Elbridge Coochise. “Development of Tribal Courts: Past, Present, and Future.” Judicature 79 (November–December 1995): 147–49. Despite their importance, tribal courts have not benefited from the Indian Tribal Justice Act. Tribal court funding should come from the Department of Justice to correct this oversight and Congress needs to address tribal court needs. 1696. National American Indian Court Judges Association. Justice and the American Indian, Vol. 2: The Indian Judiciary and the Concept of Separation of Powers. Washington, DC: National American Indian Court Judges Association, 1974. Under many tribal constitutions, tribal courts are the purview of the legislative branch. Those who advocate strong court systems want to break this barrier and create independent courts. ICRA encourages tribal leaders to take a stronger stance against their councils. 1697. National American Indian Court Judges Association. Justice and the American Indian, Vol. 4: Examinations of the Basis of Tribal Law and Order Authority. Washington, DC: National American Indian Court Judges Association, 1974. Identifies tribal jurisdictional problem areas, documents legislative studies that were used in this study, and encourages dialogues about this subject as assistance to tribal courts in preserving the quality of life in tribal communities. 1698. Newton, Nell Jessup. “Tribal Court Praxis: One Year in the Life of Twenty Indian Tribal Courts.” American Indian Law Review 22, no. 2 (1997–1998): 285–353. Tribal courts, after years of criticism, have passed the impartiality test. To prove this claim, Newton examined reported cases published in the Indian Law Reporter. All cases involved tribal law whether constitutional or traditional law and the courts had the ability to apply Western and tribal cultural values in their decisions. The biggest problem facing these well-run and thoughtful courts is outside prejudice and lack of knowledge. 1699. Nielsen, Marianne O. “A Comparison of Canadian Youth Justice Committees and Navajo Peacemakers: A Summary of Research Results.” Journal of Contemporary Criminal Justice 14, no. 1 (1998): 6–25. Tribal people operate the Aboriginal Youth Justice Committees in Canada and the Navajo created the Peacemaker courts. Colonialism forced them to create effective organizations to not discriminate and

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destroy their dependent standing with Canada or the U.S. 1700. Nielsen, Marianne O. “Navajo Nation Courts, Peacemaking and Restorative Justice Issues.” Journal of Legal Pluralism and Unofficial Law 44 (1999): 105–26. The Navajo peacemaking process is a cultural attribute that predates European contacts. It respects victims and offenders and attempts to restore community justice. The role of mediators is important as they promote reconciliation. This restorative model differs from the state authoritative model used by Western nations. 1701. Nielsen, Marianne O. and James W. Zion, eds. Navajo Nation Peacekeeping: Living Traditional Justice. Tucson: University of Arizona Press, 2005. Essays by various authors on the Navajo tribal common law and the concept of peacemaking in the Navajo tribal court system. It is divided into history of peacemaking, peacemaking concepts and peacemaking analyses. Nielsen and Zion state that Navajo peacemaking is a horizontal justice system wherein all participants are treated as equals. Colonialism and its associated themes, such as assimilation, have influenced the Navajo peacemaking process, but the tribe has been able to effectively develop this judicial practice because of the community’s adaptability. 1702. O’Brien, Lawrence, Pablo Padillo, and Andrew Williams. Hualapai Judicial Reform: Developing Alternative Dispute Resolution. Harvard Project on American Indian Economic Development, John F. Kennedy School of Government, Cambridge, MA: Harvard University, June 1997. Discusses the past, present, and future of the Haulapai tribal courts. Their court faced a problem from the beginning, as it did not coincide with tradition. Despite separation of powers found in the 1991 revised court, the council still controls the court moneys and the court has remained adversarial, not cooperative. Despite obstacles, there is hope for ADR to work. 1703. O’Connor, Sandra Day. “Lessons from the Third Sovereign: Indian Tribal Courts.” Tulsa Law Journal 33 (Fall 1997): 1–6. Address emphasizing the maturation, strength, and importance of tribal courts, especially to the population that they serve. 1704. Olney, Judge Orville N. Indian Courts and the Future: Report of the NAICAJA Long Range Planning Project. Washington, DC: National American Indian Judges Association, 1978.

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Tribal courts are essential to the expansion of tribal sovereignty and must have a role within tribal governance. The study examines current issues facing tribal courts including state jurisdiction, ICRA, federal court decisions, comity, and full faith and credit. Olney also examines strengths and weakness of tribal courts and proposes a five year plan for assisting tribal courts. 1705. Pommersheim, Frank. “The Contextual Legitimacy of Adjudication in Tribal Courts and the Role of the Tribal Bar as an Interpretive Community: An Essay.” New Mexico Law Review 18 (Winter 1988): 49–71. Advocates tribal courts as the defenders of sovereignty and reservation governance and defines the foundation of tribal courts within a social, historical, and cultural framework. Those who work for the courts are community interpreters of the reservations’ legal experiences. 1706. Pommersheim, Frank. “Introduction.” Oklahoma City University Law Review 19 (Spring 1994): 1–4. Based on the Supreme Court decisions in National Farmers Union Insurance Cos. v. Crow Tribe and Iowa Mutual Insurance Co. v. LaPlante, the high court mandated that tribal courts were “the primary forums for adjudicating civil disputes that arise in Indian country.” This mandate has made tribal courts a stronger component of tribal sovereignty. 1707. Pommersheim, Frank. “Liberation, Dreams, and Hard Work: An Essay on Tribal Court Jurisprudence.” Wisconsin Law Review 1992, no. 2 (1992): 411–57. As tribal courts grow, tribal judges should endeavor to end ongoing colonialism and resurrect past cultural values under contemporary conditions. Judicial differences between tribal and dominant courts need to be resolved respectfully but in ways that maintain tribal court sovereignty. 1708. Pommersheim, Frank. “Looking Forward and Look Back: The Promise and Potential of a Sioux Nation Judicial Support Center and Sioux Nation Supreme Court.” Arizona State Law Journal 34 (Spring 2002): 269–98. With federal funds, the Lakota community located a facility outside Ft. Pierre, South Dakota, known as “Reconciliation Place.” The hope is that this facility will provide a large range of cultural and social services to the Lakota, including a Sioux Nation Supreme Court. 1709. Pommersheim, Frank. “Tribal Court Jurisprudence: A Snapshot from the Field.” Vermont Law Review 21 (Fall 1996): 7–46. A legal scholar and an appellate judge for the Cheyenne River Sioux Tribe and the Rosebud Sioux

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Tribe, Pommersheim concludes that there is an important change taking place in tribal courts. Tribal forums are accepting more judicial responsibilities, revealing the procedural and substantive growth of tribal courts in recent years. 1710. Pommersheim, Frank. “Tribal Courts: Providers of Justice and Protectors of Sovereignty.” Judicature 79 (November–December 1995): 110–12. Tribal courts are the first line defenses for tribal self-determination. The National Farmers Union and Iowa Mutual cases stressed the importance of tribal sovereignty through the tribal courts as first courts of redress. 1711. Pommershiem, Frank. “What Must Be Done to Achieve the Vision of the Twenty-first Century Tribal Judiciary.” Kansas Journal of Law & Public Policy 7 (Winter 1997): 8–16. Supports tribal courts and what they are accomplishing on reservations as they carry tribal sovereignty forward. In doing so, they want to build on past tribal law and apply it in tribal courts despite the A-1 Contractors ruling that is tainted with judicial plenary power. 1712. Pommersheim, Frank and John P. LaVelle. “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.” Wicazo Sa Review 17 (Spring 2002): 183–232. Sioux tribes have long envisioned establishing such a court and this project must continue to cooperate closely with the tribes to make it a reality. A Great Sioux Nation Judicial Support Center (including research and development components) is a necessary “prerequisite” for establishing the Court. 1713. Reno, Janet. “A Federal Commitment to Tribal Justice Systems.” Judicature 79 (November–December 1995): 113–17. As President Clinton’s Attorney General, Reno stresses that the Department of Justice can work to strengthen tribal court authority and defend tribal self-government powers through the tribal courts. 1714. Richland, Justin B. “‘What Are You Going to Do with the Village’s Knowledge?’ Talking Tradition, Talking Law in Hopi Tribal Court.” Law & Society Review 29, no. 2 (2005): 235–71. Demonstrates, using legal discourse, how the court participants employ the competing methods of tradition and Western jurisprudence. 1715. Shepardson, Mary. “Problems of the Navajo Tribal Courts in Transition.” Human Organization 24 (Fall 1965): 250–61.

The agents controlled Navajo courts from 1882 until 1935. From 1951 until 1959, the people elected tribal judges, then in 1959, the council created a tribal Judicial Branch and the chairman appointed six judges and a chief justice. The code is based on the BIA code and Navajo legislation. This was done to prevent the states from intervening in tribal prosecution. It causes problems by creating a formal court system that is not supported by the people whose values differ. 1716. Skari, Andrea. “The Tribal Judiciary: A Primer for Policy Development.” In What Can Tribes Do? Strategies and Institutions in American Indian Economic Development, edited by Stephen Cornell and Joseph P. Kalt, 93–131. Los Angeles: UCLA, American Indian Studies Center, 1992. Offers a set of tables describing different forms of tribal judiciary and police systems. An effective judiciary is a prerequisite for exercising tribal sovereignty and each tribe must choose the right system for them. There are many choices tribes must make when they build their court system including judge selection, creating courts of appeals, and establishing a supreme court. There must also be a strong and independent judiciary. 1717. Skibine, Alex Tallchief. “Troublesome Aspects of Western Influences on Tribal Justice Systems and Laws.” Tribal Law Journal 1 (2000–2001). Online: http://tlj.unm.edu/articles/ Tribal judges have been criticized for permitting Western law to influence court decisions. This happened because Western law was imposed on tribal judicial structures through tribal assimilation. Tribes should select their court structure and processes. 1718. Taylor, Michael. “Modern Practices in the Indian Courts.” University of Puget Sound Law Review 10 (Winter 1987): 231–75. Overview of the structure, types, and procedures found in tribal courts. The Supreme Court in National Farmers Union Insurance v. Crow Tribe of Indians mandated that tribal courts were the first forums of redress to decide reservation civil disputes. Tribal courts now assume more authority. 1719. Thompson, William P. “The Courts of the Cherokee Nation.” Chronicles of Oklahoma 2 (March 1924): 63–74. A tribal member reflects in this published speech on the Cherokee’s historical development of constitutional law and careers of some of their judges. Details from specific trials are recalled. 1720. Trentadue, Jesse C. “Tribal Court Jurisdiction over Collection Suits by Local Merchants and Lenders:

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An Obstacle to Credit for Reservation Indians.” American Indian Law Review 13, no. 1 (1985): 1–58. Indian and non-Indian people interact often in the area of credit, which also includes debt collection. Frequently, tribal courts are the forums for settling credit small collection disputes because tribal people and organizations are getting the large loans. Therefore, it is important to educate attorneys and business people about the role, scope, development, and operation of tribal courts. They must then trust tribal judges and courts that respect tribal culture. 1721. Tso, Tom. “The Process of Decision Making in Tribal Courts: A Navajo Jurist’s Perspective.” Marianne O. Nielsen and James W. Zion, eds. Navajo Nation Peacekeeping: Living Justice. Tucson: University of Arizona Press, 2005, 29–41. Discusses tribal court decision-making procedures, which are guided by Navajo common law. There are seven judicial districts that function like state and federal courts and each also has a children’s court. There is a Navajo Supreme Court that hears appeals and there is a peacemaker court in each judicial district. To prevent tribal politics from entering the judicial process, nominations are submitted to the council judiciary committee, candidates must take training, and they are on probation for two years. 1722. Tso, Tom. “The Tribal Court Survives in America.” Judges Journal 25 (Spring 1986): 22–25, 52–55. Overview of the historical development of the Navajo court system. This tribal court system has borrowed from the outside court system and infused Navajo values. The court’s operation and law provide an excellent blend of values for the community. The Navajo Nation maintains operations ranging from children courts to appellate courts.

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1725. Wakeling, Stewart. Developing Restitution as an Alternative Sanction for the Tuba City Family Court. Harvard Project on American Indian Economic Development, John F. Kennedy School of Government, Cambridge, MA: Harvard University, May 1993. The Tuba City family court struggles with its heavy caseload. To ease the court’s burden, varying options of restitution offer the family court alternatives to the current punishments; one is simple restitution and the other is a more intense restitution program. Both provide healing, accountability, and education. 1726. Wallingford, Jayne. “The Role of Tradition in Navajo Judiciary: Reemergence and Revival.” Oklahoma City University Law Review 19 (Spring 1994): 141–59. The ideal situation for tribal courts is to develop a system that reflects the tribe’s customs and traditions. This has been the approach that the Navajo Nation has taken in their court development, using Navajo common law to make court decisions. In trying to return to their culture-based jurisprudence, the tribe went through several court formats ultimately creating the Navajo Peacemaker court. 1727. Washburn, Kevin K. “Tribal Courts and Federal Sentencing.” Arizona State Law Journal 36 (Spring 2004): 403–50. ICRA imposed non-Indian legal values on tribal cultures resulting in a heavy toll on tribal courts, but the reservation courts have endured. Despite the heavy cost, the Sentencing Commission has barred tribal courts from admission—even though tribal courts are deserving—especially because they must follow the imposed ICRA guidelines.

1723. Valencia-Weber, Gloria. “Tribal Courts: Custom and Innovative Law.” New Mexico Law Review 24 (Spring 1994): 225–63. Tribal nations are the third sovereign in the American federalist system. As over five hundred tribes exercise greater authority, tribal courts are emerging as a key lawmaking branch of tribal nations. Common law and custom underline the pattern of tribal court jurisprudence.

1728. Wolff, Mark J. “Spirituality, Culture and Tradition: An Introduction to the Role of Tribal Courts and Councils in Reclaiming Native American Heritage and Sovereignty.” St. Thomas Law Review 7 (Summer 1995): 761–67. In examining tribal courts and the American adversarial system, several distinct differences are apparent not only in organizational authority, but in tone and temper. Tribal court self-determination is important, and state courts should accept tribal court orders.

1724. Vicenti, Carey N. “The Reemergence of Tribal Society and Traditional Justice Systems.” Judicature 79 (November–December 1995): 134–41. Many tribes are exploring options regarding tribal court evolution, which run the continuum from an American system, to adapting variations of the American system, to establishing traditional cultural court procedures and punishments.

1729. Yazzie, Robert. “‘Life Comes from It’: Navajo Justice Concepts.” In Navajo Nation Peacekeeping: Living Justice, edited by Marianne O. Nielsen and James W. Zion, 42–58. Tucson: University of Arizona Press, 2005. Solving problems is the heart of Navajo justice as they slay new monsters that include domestic violence, gangs, alcohol-related crimes, and family

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separation. Instead of following the vertical Western model of justice, Navajos follow the horizontal system that is best illustrated by the revival of the peacemaking courts. 1730. Yazzie, Robert. “Navajo Peacekeeping: Technology and Traditional Indian Law.” St. Thomas Law Review 10 (Fall 1997): 95–101. Describes the Navajo peacemaking component in the Navajo court system as technology. 1731. Yazzie, Robert. “‘Watch Your Six’: An Indian Nation Judge’s View of 25 Years of Indian Law, Where We Are and Where We Are Going.” American Indian Law Review 23, no. 2 (1998–99): 497–503. Discusses Oliphant and Duro and ways to make the Navajo courts system a legitimate branch of tribal government. 1732. Yazzie, Robert and James W. Zion. “‘Navajo Thinking’: Peacemaking Planning and Policy.” In Navajo Nation Peacekeeping: Living Justice, edited by Marianne O. Nielsen and James W. Zion, 177–201. Tucson: University of Arizona Press, 2005. Like all societies, Navajos face violence, forcing the tribal government to address the rising problem and hiring more police. 1733. Zion, James W. “The Dynamics of Navajo Peacemaking: Social Psychology of an American Indian Method of Dispute Resolution.” In Navajo Nation Peacekeeping: Living Traditional Justice, edited by Marianne O. Nielsen and James W. Zion, 85–99. Tucson: University of Arizona Press, 2005. The peacemaking courts encourage offenders to present their excuses as “part of the dispute resolution process.” This practice prepares dispute resolution to move to the next phase of teaching tribal case law in preparation for the hopeful reconciliation. 1734. Zion, James W. “Epilogue and Dream: A Look Backward and Forward.” In Navajo Nation Peacekeeping: Living Traditional Justice, edited by Marianne O. Nielsen and James W. Zion, 202–5. Tucson: University of Arizona Press, 2005. To embark on the peacemaker model of Navajo common law required faith and it has been rewarded. 1735. Zion, James W. “Harmony among the People: Torts and Indian Courts.” Montana Law Review 45 (Summer 1984): 265–79. The Office of Indian Affairs created the Courts of Indian Offenses in 1883, and tribal court structure remained in operation for decades. Tribal courts must write their common law so it will be applied as a standard for all tribal members. Tribal people are

frustrated with Western common law dictating their courts’ decisions. 1736. Zion, James W. “The Navajo Peacemaker Court: Deference to the Old an Accommodation to the New.” American Indian Law Review 11, no. 2 (1983): 89–109. The court’s operation includes demonstrating a strong pragmatic sense of right and wrong, keeping what works and discarding what does not, and educating tribal leaders. Sitting judges select the peacemaker justices, but unlike other courts, the users pay the judge, not the council. 1737. Zion, James W. “When People Act as If They Have No Relatives.” In Navajo Nation Peacekeeping: Living Justice, edited by Marianne O. Nielsen and James W. Zion, 100–8. Tucson: University of Arizona Press, 2005. The author became the domestic abuse commissioner for the Crownpoint family court. Zion examines conditions under which peacemaking does and does not work. The process often works in domestic violence cases. 1738. Zion, James W. and Elsie B. Zion. “Hozho’ Sokee’— Stay Together Nicely: Domestic Violence under Navajo Common Law.” Arizona State Law Journal 25 (Summer 1993): 407–26. The Navajo Nation must confront domestic violence, but does not always want to use non-Navajo methods. Since tribal courts were not very adept at dealing with this issue, they decided they needed to use their Navajo values in court. As a result, the Navajo have developed a Peacemaker Court that employs Navajo customs of mediation and arbitration. It includes the family, clan, and a leader with wisdom to help all parties reach a solution. 1739. Zuni, Christine. “The Southwest Intertribal Court of Appeals.” New Mexico Law Review 24 (Spring 1994): 309–14. This court serves as an impartial forum for appeals from tribal courts from New Mexico, Arizona, west Texas, and southern Colorado. Located in Albuquerque, New Mexico, it began operation in 1988. This court issues non-binding decisions and is an option that is under the control of the membership tribes in SWITCA. 1740. Zuni, Christine. “Strengthening What Remains.” Kansas Journal of Law & Public Policy 7 (Winter 1997): 17–30. Tribal courts must abandon the imposed Western models, and Zuni provides suggestions on how to achieve this goal.

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1741. Aden, Steven H. and Lee J. Strang. “When a ‘Rule’ Doesn’t Rule: The Failure of the Oregon Employment Division v. Smith ‘Hybrid Rights Exception.’” Penn State Law Review 108 (Fall 2003): 573–609. Hybrid cases, where two constitutional issues are combined in one case, have had great difficulty obtaining favorable decisions and “individuals who assert a right to an exemption from a neutral, generally applicable law will face entrenched opposition.”

Indian contractors with the BIA would be subject to nondiscriminatory state taxation. 1745. Asher, Brad. Beyond the Reservation: Indians, Settlers, and the Law in Washington Territory, 1853–1889. Seattle: University of Washington Press, 1999. Part of the assimilation movement was to push tribal people into non-tribal courts. Most of the state’s Indian population never moved onto the reservations and they found themselves in white man’s courts that created tribal political and racial boundaries.

1742. Anderson, Steven B. “Native American Indian Law and the Burger Court: A Shift in Judicial Methods.” Hamline Law Review 8 (October 1985): 671–712. The Burger Court abandoned the historic cannons of construction in favor of balancing the interests between the interested parties, thereby undermining tribal sovereignty.

1746. Baca, Lawrence R. “Thirty Years of Federal Indian Law.” The Federal Lawyer 52 (March/April 2005): 28–35. Since 1976, the Supreme Court has decided more than 100 tribal cases. These cases are discussed on a decade-by-decade basis to demonstrate the direction that federal Indian law has taken.

1743. Anderson, Thomas A. “Indian Law.” Golden Gate University Law Review 11 (Spring 1981): 305–21. Survey of recent judicial activity, including the Hopi–Navajo land dispute and the application of federal Indian law principles. Sekaquaptewa v. MacDonald, dominated the Ninth Circuit Court of Appeals’ recent term. Anderson is critical of the court for only examining the legislative intent of the 1934 IRA. Also briefly critiques Rincon Band of Mission Indians v. Harris, an IHS class action case.

1747. Barsh, Russel Lawrence. “Is There Any Indian ‘Law’ Left? A Review of the Supreme Court’s 1982 Term.” Washington Law Review 59 (September 1984): 863–93. Criticizes the Supreme Court’s term by describing the court as operating with an absence of law.

1744. Ansson, Richard J., Jr. “Recent Developments.” American Indian Law Review 24, no. 1 (1999–2000): 187–95. Lower federal courts in recent years have found that tribes are not to be considered state citizens for diversity jurisdiction purposes. Ansson argues that the “State of Utah should be liable for $100 million based upon Utah’s utter neglect of the Utah Navajos.” Also criticizes the Supreme Court decision that the Blaze Construction Company and other non-

1748. Blumm, Michael C. and Michael Cadigan. “The Indian Court of Appeals: A Modest Proposal to Eliminate Supreme Court Jurisdiction over Indian Cases.” Arkansas Law Review 46, no. 1 (1993): 203–35. Indian cases should go to an Indian Court of Appeals that Congress can create under the Exceptions Clause. The proposed court’s goal is to protect tribal sovereignty and create national uniformity in Indian law. It would reduce the high court’s heavy case docket and reduce attacks on tribal sovereignty. The

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judges would be selected based upon their understanding of Indian law. 1749. Braveman, Daan. “Tribal Sovereignty: Them or Us.” Oregon Law Review 82 (Spring 2003): 75–117. Courts have treated tribal sovereignty, from John Marshall to the present, with an underlying theme of an implicit understanding of Indians as “them” rather than “us.” 1750. Burton, Jeffrey. Indian Territory and the United States, 1866–1906: Courts, Government and the Movement for Oklahoma Statehood. Norman: University of Oklahoma Press, 1995. The creation of federal courts in Indian Territory, in the guise of judicial reform, provided a justification to dispose of the tribal governments of the Five Civilized Tribes. 1751. Castile, George Pierre. “The Indian Connection: Judge James Wickersham and the Indian Shakers.” Pacific Northwest Quarterly 81 (October 1990): 122–29. Wickersham was a hypocrite, aiding the Shaker Church but acting at the same time to promote the opening of the Puyallup reservation to white settlement. 1752. Chambers, Reid Peyton. “Indian Law in the United States Supreme Court—Experiences in the 1980s and Predictions for the 1990s.” American Indian Law Review 22, no. 2 (1997–98): 601–10. During these years, the Supreme Court began to hear many tribal cases, thus leading to a maturing of tribal case law. Tribal members remain free on their own reservations and reserved treaty rights have endured. 1753. Chambers, Reid Peyton. “Oklahoma Indian Law— Cases of the Last Decade and Opportunities for the Next Decade.” Tulsa Law Journal 24 (Summer 1989): 701–11. The Oklahoma Indian cases that reached the Supreme Court involved disputes between the tribes and states, and involved several issues including tribal gaming. Chambers also discusses the importance of a tribe being aggressive in business because doing so will bring federal dollars to the reservation, benefiting both tribe and state. 1754. Claiborne, Louis F. “The Trend of Supreme Court Decisions in Indian Cases.” American Indian Law Review 22, no. 2 (1997–98): 585–99. The Supreme Court has had little interest in hearing Indian cases. Justices Black or Douglas were assigned Indian cases and issued favorable opinions, such as Williams v. Lee. The worst decision was Justice Rehnquist’s decision in Oliphant.

1755. Clinton, Robert N. “Reservation Specificity and Indian Adjudication: An Essay on the Importance of Limited Contextualism in Federal Indian Law.” Hamline Law Review 8 (October 1985): 543–97. There are two ways to read Indian opinions: on a case-by-case basis employing the unique history and culture of an individual tribe or by following general principles and applying them to all tribes. The Supreme Court has followed the latter and that has hurt tribes. 1756. Clinton, Robert N. “State Power over Indian Reservations: A Critical Comment on Burger Court Doctrine.” South Dakota Law Review 26 (Summer 1981): 434–46. Since the early Marshall decisions, the Supreme Court recognized tribal sovereign powers to tax, regulate game resources, and prosecute non-Indians for lesser crimes, but the Burger court has destroyed those canons of tribal sovereignty and increased state authority on reservations, which has been the court’s goal. 1757. Cohen, Felix S. “Indian Rights and the Federal Courts.” Minnesota Law Review 24 (January 1940): 145–200. The right of tribal self-government, tribal civil liberties, and tribal property rights are all unique in American law. Crow Dog’s and John Ross’ defenses of tribal sovereignty in federal courts were important to the nation’s push toward liberty. 1758. “Conference: Race, Law and Justice: The Rehnquist Court.” American University Law Review 45 (February 1996): 567–686. Conference proceedings discussing Rehnquist’s racial views toward tribal America that diminished tribal political sovereignty. 1759. Coulter, Robert T. “Indian Conflicts & Nonjudicial Dispute Settlement.” Arbitration Journal 33 (December 1978): 28–31. Tribal members consider the U.S. courts “an inherently unfair forum for settlement of their disputes.” Additionally, federal courts often lack subject matter jurisdiction, as Martinez revealed. These reasons make negotiation and arbitration attractive alternatives. 1760. Creel, Von. “A Court of Its Own: The Establishment of the United States Court for the Indian Territory.” Oklahoma City University Law Review 27 (Spring 2002): 231–44. Discusses the congressional decision to bring a federal court to Indian Territory. 1761. Cushing, Charles S. “The Acquisition of California, Its Influence and Development under American

Federal and State Courts

Rule.” California Law Review 8 (January 1920): 67–85. Briefly discusses tribal people as witnesses in early California courts. 1762. Daily, Harry P. “Judge Isaac C. Parker.” Chronicles of Oklahoma 11 (March 1933): 673–90. Biography of a U.S. Judge at Fort Smith with jurisdiction over Indian Territory in the late nineteenth century. He treated Indian criminal defendants fairly and regarded his court as “having been established for the protections of the innocent, offending Indian.” 1763. Dobbs, G. Byron. “Murder in the Supreme Court: Appeals from the Hanging Judge.” Arkansas Law Review 29 (Spring 1975): 47–70. Historically, the Western Arkansas District obtained from Congress the powers of a circuit court, but there were no provisions for appeals in criminal cases. This court had jurisdiction over Indian Territory until 1896. This was the court that Judge Isaac C. Parker made famous as the hanging judge. 1764. Dussias, Allison. “Geographically-Based and Membership-Based Views of Indian Tribal Sovereignty: The Supreme Court’s Changing Vision.” University of Pittsburgh Law Review 55 (Fall 1993): 1–97. Marshall ruled on sovereignty, ignoring race, while now the court has restricted tribal authority over nonmembers, raising serious challenges to tribal sovereignty. These are decisions that would never be tolerated in cases involving states or the federal government. 1765. Egan, Ewell E., Jr. “Recent Developments.” Georgetown Law Journal 63 (March 1975): 989–1000. Criticizes the Eighth Circuit Court of Appeals’ ruling in Poitra v. Demarrias. The case originated on the North Dakota side of the Standing Rock Reservation. “The court does not perceive itself as interfering with Indian self-government although it is clearly stepping in to hear a case traditionally resolved by the tribe itself.” 1766. Endreson, Douglas B. L. “A Review of the 1990s and a Look at What’s Ahead.” American Indian Law Review 22, no. 2 (1997–98): 611–22. For tribes to move forward in their preservation of self-rule, they must demonstrate that court decisions made since 1991 have been positive, giving the Supreme Court a clear reason to continue along a specific line of reasoning. 1767. Estes, Charles, Jr. “Indian Law.” New Mexico Law Review 11 (Winter 1981) 189–202. Annual survey of Indian cases from New Mexico courts and the Tenth Circuit Court of Appeals.

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1768. Feldman, Stephen M. “Felix Cohen and His Jurisprudence: Reflections on Federal Indian Law.” Buffalo Law Review 35 (Spring 1986): 479–525. Well known for his 1941 Handbook of Federal Indian Law, Felix Cohen advocated tribal rights, was a legal philosopher, and supported the American legal realist movement. Feldman argues that “the Supreme Court has largely adopted Cohen’s functional approach to the problem of the scope of state power in Indian Country” by balancing tribal interests against state interests and has therefore weakened tribal rights. The court needs to develop broad doctrines that will allow culturally different tribal governments to prosper. 1769. Fetzer, Philip Lee. “Jurisdictional Decisions in Indian Law: The Importance of Extralegal Factors in Judicial Decision Making.” American Indian Law Review 9, no. 2 (1981): 253–72. The Burger court was inconsistent in following tribal self-rule. Political activities influenced the court, especially Wounded Knee and other incidents of tribal activism. 1770. Field, Oliver P. “The Doctrine of Political Questions in the Federal Courts.” Minnesota Law Review 8 (May 1924): 485–513. Several pages are devoted to the status of tribal Americans. 1771. Frickey, Philip P. “A Common Law for Our Age of Colonialism: The Judicial Divestiture of Indian Tribal Authority over Non-Members.” Yale Law Journal 109 (Oct. 1999): 1–85. The growing population of non-Indians residing on reservations is posing judicial problems for the Supreme Court, forcing justices to write decisions that do not follow the strong teachings of past cases, as occurred in Williams v. Lee. As the high court continues to make crucial decisions it has assumed a legislative duty over tribal affairs that is akin to colonialism. The Court should “freeze the law as it now stands” and try to retrieve the traditions and precedents of the past. 1772. Frickey, Philip P. “Marshalling Past and Present: Colonialism, Constitutionalism, and Interpretation in Federal Indian Law.” Harvard Law Review 107 (Dec. 1993): 381–440. American Indian law “represents the intersection of colonialism and constitutionalism.” John Marshall confirmed tribal sovereign status in the Constitution with his Cherokee opinions, but the court took a detour one century later again declaring plenary power over tribes. The Supreme Court should “recognize that federal Indian law is about institutional survival

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. . . the perpetuation of the oldest continuous sovereigns on this continent.” 1773. Getches, David H. “Beyond Indian Law: The Rehnquist Court’s Pursuit of States’ Rights, Color-Blind Justice and Mainstream Values.” Minnesota Law Review 86 (December 2001): 267–362. Begins with a historical narrative of the Burger Court’s defense of tribal sovereignty and moves to a criticism of the Rehnquist Court. The latter court protects states’ rights, supports mainstream values, and ignores minority rights. The Court must understand that tribal treaty issues and tribal sovereignty make up a distinct and complex area of federal law. If the Court will not do its job, Congress will need to reaffirm tribal self-rule. 1774. Getches, David H. “Conquering the Cultural Frontier: The New Subjectivism of the Supreme Court in Indian Law.” California Law Review 84 (December 1996): 1573–1665. The founding doctrines of Indian law from 1776 defined Indian country as the domain of tribal governance subject to expressed congressional legislation. The Supreme Court has departed from those principles by making subjective decisions based on how the high court’s vision of authority in Indian country should be associated to avoid clashes between tribal and non-tribal groups. The court should now leave Indian Country issues to the political branches of the federal government. 1775. Gould, L. Scott. “The Consent Paradigm: Tribal Sovereignty at the Millennium.” Columbia Law Review 96 (May 1996): 809–902. With such cases as United States v. Maguire and Montana v. United States, “the Supreme Court has changed the course of two centuries of law. Tribes, whose sovereign powers where once coextensive with their territories, now have authority over few but tribal members.” The solution is to seek compromise. 1776. Gould, L. Scott. “Tough Love for Tribes: Rethinking Sovereignty after Atkinson and Hicks.” New England Law Review 37, no. 3 (2002–2003): 669–93. The court ruled in Atkinson that the Navajo Nation could not impose an occupancy tax on a hotel that was on fee land inside the reservation. In Hicks, the high court put forth the idea that states have inherent jurisdiction over a reservation. These cases chipped away at tribal sovereignty, revealing the hard shift from Marshall to Rehnquist’s view of tribal sovereignty. 1777. Gutfeld, Arnon. “Western Justice and the Rule of Law: Bourquin on Loyalty, the ‘Red Scare,’ and In-

dians.” Pacific Historical Review 65 (February 1996): 85–106. Look at an iconoclastic, ideologically conservative judge that includes a section on his paternalistic sensitivity to injustices affecting Native Americans, particularly regarding his opinion on a series of water law cases affecting Montana Indians, and also his criticisms of federal Indian land policies. 1778. Haddock, David D. and Thomas D. Hall. “Impact of Making Rights Inalienable: Merrion v. Jicarilla Apache Tribe, Texaco, Inc. v. Short, Fidelity Federal Savings & Loan Association v. de la Cuesta, and Ridgeway v. Ridgeway.” Supreme Court Economic Review 2 (1983): 1–41. These four cases legally are bound due to “questions of contract law and constitutional law,” and economically they connect because they discuss the alienation of tribal assets. 1779. Hanna, Tassie and Robert Laurence, “Justice Thurgood Marshall and the Problem of Indian Treaty Abrogation.” Arkansas Law Review 40, no. 4 (1987): 797–840. Justice Thurgood Marshall wrote eighteen opinions pertaining to tribal issues, but three, Bartlett, Klamath, and Dion, were his finest tribal legal writings. In each, he moved beyond policy and decision making to the doctrine that, decisions must be flexible to advance the interests of justice. 1780. Harring, Sidney L. Crow Dog’s Case: American Indian Sovereignty, Tribal Law, and United States Law in the Nineteenth Century. New York: Cambridge University Press, 1994. The nineteenth-century evolution of federal Indian law is examined through several Supreme Court cases. These include the Corn Tassel’s conviction under Georgia law for murder on the Cherokee reservation, Crazy Snake’s rebellion, the Crow Dog decision, and Alaskan Native sovereignty. The result of these opinions was the reduction of tribal sovereignty and the escalation of federal power in tribal legal affairs. 1781. Hobbs, Charles A., Jerry R. Goldstein, and Robin A. Friedman. “Review of Developments in Indian Law in the Courts.” American Indian Journal of the Institute for the Development of Indian Law 4 (November 1978): 3–15. This Supreme Court session was favorable to tribal sovereignty in Martinez and unfavorable in Oliphant, and generally supported tribal sovereignty regarding cigarette taxes. 1782. Holt, Barry and Garry Forrester. Digest of American Indian Law: Cases and Chronology. Littleton, CO: F. B. Rothman, 1990.

Federal and State Courts

Surveys court cases pertaining to tribal and federal Indian law. 1783. Holyoak, William D. “Tribal Sovereignty and the Supreme Court’s 1977–1978 Term,” Brigham Young University Law Review, 1978, no. 4 (1978): 911–36. This Supreme Court term was one of the most crucial in tribal legal history as three crucial cases were decided. In Oliphant v. Suquamish Indian Tribe, the court heard “a problem never presented: the propriety of tribal criminal jurisdiction over non-Indians in the absence of congressional authority” and ruled that tribes do not have this power despite the inherent powers of a tribal sovereign. United States v. Wheeler was a double jeopardy action where a Navajo tribal court and later a federal court brought action arising from the “question of whether Indian tribes are more like states or federal territories.” The court, after examining treaties and statutes, found that the Navajo Tribal court did possess criminal jurisdiction over its members and there was no double jeopardy. The last, Santa Clara Pueblo v. Martinez was a class action for relief to the Pueblo for enforcing a tribal membership ordinance. In this suit, the court ruled that the Pueblo had the right to determine membership, demonstrating reluctance to interfere with tribal sovereignty. 1784. Hovenkamp, Herbert. “Judicial Restraint and Constitutional Federalism: The Supreme Court’s Lopez and Seminole Tribe Decisions.” Columbia Law Review 96 (December 1996): 2213–47. These two cases demonstrate that there is a core of justices on the Supreme Court who are dedicated to preserving the Constitution’s “recognized state prerogatives.” The Seminole case affected tribes in their efforts to force states to bargain in good faith on gambling compacts, demonstrating the high court’s defense of state sovereign immunity. 1785. Hughes, Richard W. “Indian Law.” New Mexico Law Review 12 (Winter 1982): 407–58. Annual survey of Indian law litigation concluding, “all of the cases under review were wrongly decided.” Courts are moving in a troubling direction in litigating tribal interests. 1786. Hume, C. Ross. “Oklahoma History Embedded in the Law.” Chronicles of Oklahoma 25 (Summer 1947): 92–101. Brief survey of judicial decisions and major laws in Oklahoma history including those dealing with American Indians. 1787. Hurtado, Albert L. “Public History and the Native American: Issues in the American West.” Montana: Magazine of the West 40 (Spring 1990): 58–69.

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The ongoing litigation that is part of contemporary tribal America has put some historians and their work in court and on both sides of controversies. Historians must be careful about committing abuses when personal bias blinds them against objectivity. The court has to be aware of the historical process and not take advantage of material taken out of context. 1788. Jackson, Vicki C. “Coeur d’Alene, Federal Courts and the Supremacy of Federal Law: The Competing Paradigms of Chief Justices Marshall and Rehnquist.” Constitutional Commentary 15 (Summer 1998): 301–24. Rehnquist is eager to stop federal court authority in actions others bring against states, in contrast to the long tradition of federal officers bringing suit. Jackson reflects on Marshall and wonders if his legal theories would be more applicable in the future. 1789. Jensen, Erik K. “Monroe G. McKay and American Indian Law: In Honor of Judge McKay’s Tenth Anniversary on the Federal Bench.” Brigham Young University Law Review, no. 4 (1987): 1103–55. This is a Festschrift essay to honor McKay after ten years on the Federal Tenth Circuit Court of Appeals that is second to the Ninth Circuit in the number of tribal cases heard. McKay believes that state and federal authorities “should interfere minimally with the prerogatives of tribal self-government; he wishes to facilitate Indian self-determination.” 1790. Johnson, Ralph W. and Berrie Martinis. “Chief Justice Rehnquist and the Indian Cases.” Public Land Law Review 16 (1995): 1–25. Early in Rehnquist’s career on the high court he was characterized as an activist, a judge willing to make radical departures from existing legal opinion, and that is what he often did in tribal cases. His ideal preference is state autonomy, and tribal governments challenge his philosophical-legal beliefs. Since McClanahan, Rehnquist’s court has relied on preemption, creating a new judicial policy differing from one that has been in force since John Marshall. Rehnquist wrote the Rosebud disestablishment case and opposed the majority ruling in Mitchell. His dismantling of tribal criminal sovereignty continued in Oliphant and he negated the Free Exercise Clause of the First Amendment with Smith, and he defended states’ rights to extend taxation to reservations, ignoring the economic effects on tribal self-determination. 1791. Keller, Robert H., Jr. “William O. Douglas, the Supreme Court, and American Indians.” American Indian Law Review 3, no. 2 (1975): 333–60. After thirty-five years on the bench, Justice Douglas was involved in thirty-nine defenses and

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only eleven dissents in tribal cases before the high court. He did not write new legal doctrines, but upheld the principles of treaty rights and argued for the nation to honor its commitments. 1792. Kellough, William C. “Power and Politics of the Oklahoma Federal Court.” Chronicles of Oklahoma 65 (Summer 1987): 182–213. History of the court, collective biography of its judges, and survey of key cases that also discusses tribal sovereignty issues, including legal issues related to land allotment and oil development. The federal jurisdiction expanded over the years as tribal authority was “emasculated” and “eliminated.” 1793. Kendall, Brenda. “Indian Law.” Golden Gate University Law Review 8, no. 1 (1977): 153–69. The Ninth Circuit Court of Appeals ruled on taxation, Indian land rights, and criminal jurisdiction in Indian Country during the past year. 1794. Kepner, George S. “Drums along the Power Ways.” Albany Law Review 23 (January 1959): 135–51. In 1958, the Federal Court of Appeals for the Second Circuit was in conflict with the New York Courts of Appeals. The federal court dismissed New York’s claim of eminent domain on Indian lands throwing into question past state takings. Because New York was created before the U.S., New York has more authority in tribal matters than do western states. 1795. Krakoff, Sarah. “Undoing Indian Law One Case at a Time: Judicial Minimalism and Tribal Sovereignty.” American University Law Review 50 (June 2001): 1177–1271. Asks why the minimalists on the court take a narrow view of the questions before the Supreme Court and do not defer to congressional Indian policy of self-determination. There is still time to stop the court’s diminishment of tribal sovereignty by freezing the law. Includes a chart of cases covering the last ten decades. 1796. Kramer, Karl J. “The Most Dangerous Branch: An Institutional Approach to Understanding the Role of the Judiciary in American Indian Jurisdictional Determinations.” Wisconsin Law Review, nos. 5–6 (1986): 989–1038. The courts’ traditional canons of constructing tribal rights favored tribal positions and tribes preserved vestiges of inherent sovereignty. More and more, the judicial branch is straining and stretching these past rules of construction in favor of a racial and demographic ruling. As non-Indian population pressure increases inside and outside reservations, court rulings in favor of non-Indians are forcing

tribes to examine the political arena as their next hope. 1797. Labin, Tracy. “We Stand United Before the Court: The Tribal Supreme Court Project.” New England Law Review 37, no. 3 (2002–2003): 695–731. After the Supreme Court ruled in Hicks and Atkinson, the Native American Rights Fund and the NCAI created the Tribal Supreme Court Project “to coordinate and strengthen the advocacy of Indian issues before the Supreme Court, and ultimately to improve the win–loss record of tribes before that tribunal” using the screening process. 1798. Laurence, Robert. “Justice Thurgood Marshall’s Indian Law Opinions.” Howard Law Journal 27, no. 1 (1984): 3–89. Thurgood Marshall wrote fifteen tribal opinions while on the Supreme Court from 1970 until 1983. Laurence praises Marshall for writing principled decisions that followed tribal sovereignty, federal trusteeship, and statutory construction. 1799. Leaming, Judy. “Pieces of the Puzzle: Excerpts from a Piece in Progress.” Federal Bar News & Journal 38 (March 1991): 64–69. After examining treaties, statutes, and policies, the high court cannot make a continuous Indian policy, but has stitched together a patchwork quilt. Even by placing these decisions into their political and historical context, it is often impossible to understand what the court was thinking when writing their opinions. 1800. Lee, Yuanchung. “The Constitutional Lineage of Federal Indian Law.” New Mexico Law Review 27 (Spring 1997): 273–357. The Supreme Court, during the New Deal, years rejected the past Lone Wolf-era decisions and capitalistic notions of the nation that drove late nineteenthcentury Indian affairs. The high court returned to the doctrines of John Marshall and supported strong tribal sovereignty. The lineage of recent court decisions comes from the New Deal court, it does not stretch back directly to John Marshall. 1801. Lopach, James J. “The Anomaly of Judicial Activism in Indian Country.” American Indian Culture and Research Journal 21, no. 2 (1997): 83–104. Considers the Moran case in 1995 in which the Court of Appeals of the Confederated Salish and Kootenai Tribes ruled that the Tribal Court had the right of judicial review, and thus “fashioned a new fundamental principle” in the reservation’s political tradition. This decision is an example of judicial activism. Judicial restraint is a more desirable way to gain the confidence of tribal members.

Federal and State Courts

1802. McSloy, Steven Paul. “The “Miner’s Canary:” A Bird’s Eye View of American Indian Law and Its Future.” New England Law Review 37, no. 3 (2002– 2003): 733–41. Tribes should stay out of court because going there forces a decision, one that is more apt to be adverse to tribal rights than favorable. The Supreme Court is now the coalmine and the tribes are the canary. 1803. McSloy, Steven Paul. “Revisiting the ‘Courts of the Conqueror’: American Claims against the United States.” American University Law Review 44 (December 1994): 537–644. Examines the recent role played by federal circuit courts and the Court of Federal Claims in tribal cases. These are not neutral forums applying federal Indian law because they do not share Congress’s resolve to push for tribal self-determination. To make matters worse, these courts ignore history, treaties, statutes, and tribal sovereign immunity, thus diminishing tribal sovereignty. 1804. Mills, Denise K. “Indian Law.” Golden Gate University Law Review 6 (Winter 1976): 646–77. An overview of the past year’s cases primarily focusing on the Ninth Circuit Court of Appeals. The essay examines conflicts among state, federal, and tribal governments in the areas of administrative affairs, domestic relations, land rights, and criminal jurisdiction. 1805. Nilsson, Erik D. “Indian Law.” Creighton Law Review 13 (Summer 1980): 1372–86. Surveys recent Eight Circuit Court of Appeals decisions and the legal tribal maze that rulings have created. 1806. “Parties.” American Law Register 37, New Series (September 1898): 579. In Montauk Tribe of Indian v. Long Island R. Co. the tribe brought suit against the railroad for occupying tribal lands. The court denied them standing, but suggested that one of their members could sue on behalf of all and if that failed, each would have to sue, raising a question as to whom would the land belong if they were successful. The answer has to be found in tribal law. 1807. Pelcyger, Robert S. “Justices and Indians: Back to Basics.” Oregon Law Review 62, no. 1 (1983): 29–47. Over the last decade, the Supreme Court wrote more tribal-related opinions than in any other area of law, deciding that states lack authority over tribal person and property, tribal governments have sovereignty over tribal members on the reservations, ex-

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cept when Congress has taken that power away, that tribal off-reservation activities often fall under state authority, and tribes have civil authority over nonmembers on the reservation. On the other hand, the court extended state taxing authority and regulations over non-Indian living on reservations. 1808. Pomerance, John R. “Federal Indian Law.” Annual Survey of American Law, no. 2 (February 1983): 347–72. Surveys court decisions examining inherent tribal sovereignty, land rights, and preemption analysis. A wide variety of cases are used to illustrate these doctrines. 1809. Preso, Timothy Joseph. “A Return to Uncertainty in Indian Affairs: The Framers, the Supreme Court, and the Indian Commerce Clause.” American Indian Law Review 19, no. 2 (1994): 443–72. This is not James Madison’s court. Instead, it has become a “fact specific” court that has created an unclear path for tribal nations. Madison viewed the Indian Commerce Clause as a barrier to state involvement in tribal affairs, but today, the justices have moved outside the framers’ intent regarding the Commerce Clause. 1810. Resnik, Judith. “Dependent Sovereigns: Indian Tribes, States, and the Federal Courts.” University of Chicago Law Review 56 (Spring 1989): 671–759. Focusing on Santa Clara Pueblo v. Martinez, this often cited article examines “the uses of courts as vehicles of culture and [this] is about the culture the courts carry.” It took a Civil War to trump the states, and now we must “review the stories we have been telling about the federal courts . . . [and] include texts less noble than the ones we have preferred.” 1811. Robinson-Weber, Sandra. “Native Americans before the Bench.” The Social Science Journal 19 (July 1982): 47–57. Tribal people are in cross fire. They enjoy crossing into the larger society, but want to retain their own identities. In this process, they must also confront Western justice that does not understand tribal ways. Enforcing the law is only one part of the judicial system. The other is the people’s willing to legitimize the judicial system and tribal people have not done that with Western courts. 1812. Royster, Judith V. “Decontextualizing Federal Indian Law: The Supreme Court’s 1997–98 Term.” Tulsa Law Journal 34 (Winter 1999): 329–46. The recent Supreme Court cases are challenges to tribal powers of self-government. Five Indian cases are studied for common themes. Only one tribal case,

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which involved Indian Country, taxation, and diminishment, was decided in favor of tribes. The court simplified some concepts, made others more difficult, and even contradicted itself in these five cases. 1813. Rusco, Elmer R. “The Pluralistic Basis of American Indian Law.” In Indians and Criminal Justice, edited by Laurence French, 39–52. Totowa, NJ: Allanheld, Osmun & Co., 1982. The Supreme Court has consistently refused to uphold cultural pluralism when dealing with tribal issues. This is a crucial fault of the court since tribal Americans have a special status. 1814. Russell, Steve. “The Jurisprudence of Colonialism.” Legal Studies Forum 25, nos. 2–3 (2001): 605–17. The U.S. was a colonizer and courts have reaffirmed that position. 1815. Sanders, James Marshall. “Federal Native American Law.” Annual Survey of American Law, no. 4 (December 1984): 897–927. Surveys recent court decisions and examines water rights, state law preemption, federal trust responsibilities, and land-based tribal rights. 1816. Schacter, Jane S. “Metademocracy: The Changing Structure of Legitimacy in Statutory Interpretation.” Harvard Law Review 108 (January 1995): 593–663. Applies postmodern theory in an analysis of the Mashpee case, one of many examples where the courts did not see the forest for the trees. 1817. Shattuck, Petra and Jill Norgen. “Political Use of the Legal Process by Black and American Indian Minorities.” Howard Law Journal 22, no. 1 (1979): 1–26. These groups originally used the courts for extraconstitutional purposes. African Americans were slaves and tribes were domestic dependent nations as found in Cherokee Nation v. Georgia. Tribes were at the pleasure of Congress to sue while African Americans were able, after citizenship, to follow more traditional avenues into the courts. The creation of the NAACP and Howard University opened doors for African Americans early on, but the Native American Rights Fund was not created until decades later. 1818. Singer, Joseph William. “Canons of Conquest: The Supreme Court’s Attack on Tribal Sovereignty.” New England Law Review 37, no. 3 (2002–2003): 641–68. Critical of the Supreme Court decision in Nevada v. Hicks. Because of Justice Rehnquist’s efforts to reduce federal authority over states, tribal governments have been stripped of their powers. The court has made narrow, constrictive decisions.

1819. Skibine, Alex Tallchief. “The Court’s Use of the Implicit Divestiture Doctrine to Implement Its Imperfect Notion of Federalism in Indian Country.” Tulsa Law Journal 36 (Winter 2000): 267–304. The Supreme Court has taken the politically expedient approach to end each case and remove it from the docket. This practice has damaged tribal sovereignty—especially in the area of divestiture. Tribes should negotiate with states to settle their differences and take them to Congress for ratification. 1820. Soifer, Aviam. “Objects in Mirror Are Closer Than They Appear.” Georgia Law Review 28 (Winter 1994): 533–53. Reviews several cases that were an “assault” on history, including South Dakota v. Bourland, Blatchford v. Village of Noatak, and State v. Elliott. 1821. Stohr, Glen. “The Repercussion of Orality in Federal Indian Law.” Arizona State Law Journal 31 (Summer 1999): 679–704. There has been an ongoing conflict over the utility of literacy and tribal oral tradition in litigation. Despite the importance of oral tradition to tribal life, federal law has marginalized it. 1822. Tanner, Helen Hornbeck. “History vs. the Law: Processing Indians in the American Legal System.” University of Detroit Mercy Law Review 76 (Spring 1999): 693–708. Tanner served as an expert witness in the case United States v. Michigan—litigation dealing with early nineteenth-century land treaties involving the signatory tribal nations that were party to the treaty of Greenville. Tanner also discusses other cases in which she served as an expert witness and concludes, “historians working opposite sides of the same legal case were allowed to have discussions and come to agreements on the basic facts.” 1823. Top Fifty: A Collection of Significant American Indian Cases from the United States Supreme Court. Boulder, CO: National Indian Law Library, Native American Rights Fund, 1990. A topical index leads to reproduction of fifty significant Indian cases copied from court reporters. 1824. Tsosie, Rebecca. “Separate Sovereigns, Civil Rights, and the Sacred Text: The Legacy of Justice Thurgood Marshall’s Indian Law.” Arizona State Law Journal 25 (Summer 1994): 495–533. Thurgood Marshall wrote several important decisions pertaining to tribal America such as Martinez. The importance of his decisions related to the Indian communities is found by understanding tribal sovereignty, tribal self-determination, and tribal civil rights in a pluralistic society.

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1825. Watson, Blake A. “The Thrust and Parry of Federal Indian Law.” University of Dayton Law Review 23 (Spring 1998): 437–514. Applies Karl Llewellyn’s Thrust (“Statutes in derogation of the common law will not be extended by construction”) and Parry (“Such acts will be liberally construed if their nature is remedial”), as the foundation for examining over five hundred Supreme Court decisions to determine reasons for contradictory rulings on Indian cases.

Federal Indian Law.” Virginia Law Review 80 (March 1994): 403–501. Before 1960, courts were more consistent in interpreting the acquisition of congressional power over tribal authority. After 1960, judges became more unpredictable. A corollary to the courts’ recent stand is that federal Indian law is contrary to the nation’s legal history. The courts should decide tribal cases “on the substantive defensibility of the laws that” Congress has passed.

1826. Werhan, Keith M. “The Sovereignty of Indian Tribes: A Reaffirmation and Strengthening in the 1970s.” Notre Dame Lawyer 54 (October 1978): 5–25. The 1977 October Supreme Court term must be remembered for reaffirming limited, but real, tribal sovereignty. Three cases symbolize this doctrine: Oliphant v. Suquamish Indian Tribe denying tribes criminal jurisdiction over non-Indians, United States v. Wheeler deciding that being tried in tribal court and the federal court for the same crime was not double jeopardy, and Martinez v. Santa Clara Pueblo defending the independence of the tribal government.

1831. Williams, James R. “Federal Indian Law.” Annual Survey of American Law, 1981, no. 2 (February 1982): 351–74. Surveys recent court activities including the Sioux Nation’s Black Hills suit and the Mitchell case. Williams examines several other areas including the recognition of state interests to levy state taxes within the boundaries of a reservation even if the state’s interests are in conflict with tribal interests.

1827. Wilkins, David E. American Indian Sovereignty and the U.S. Supreme Court: The Masking of Justice. Austin: University of Texas Press, 1997. Examining fifteen pivotal cases from 1823 to 1992, Wilkins analyzes these opinions on tribal sovereignty and concludes that the high court helped to lock tribal people into a subordinate system lacking justice and diminishing tribal sovereignty. 1828. Wilkins, David E. “The Cloaking of Justice: The Supreme Court’s Role in the Application of Western Law to America’s Indigenous Peoples.” Wicazo Sa Review 10 (Spring 1994): 1–13. Over the decades, the Supreme Court made rulings that masked tribal sovereignty and that practice gave Congress the ability to place tribes in difficult legal/sovereign positions where their tribal national rights could be diminished. This began when John Marshall created the trust relationship. 1829. Wilkins, David E. “Judicial ‘Masks:’ Their Role in Defining and Redefining the Tribal/Congressional Relationship, 1870–1924.” In Issues in Native American Cultural Identity, edited by Michael K. Green, 81–165. New York: Peter Lang, 1995. Tribal status changed from tribal sovereignty to government wardship during this period. Congress led the way, the executive branch acquiesced, and the Supreme Court “legitimated or manufactured” changes in status. The Court’s role was pivotal. 1830. Williams, David. “Legitimation and Statutory Interpretation: Conquest, Consent, and Community in

1832. Williams, Robert A., Jr. “Columbus’s Legacy: The Rehnquist Court’s Perpetuation of European Cultural Racism against American Indian Tribes.” Federal Bar News & Journal 39 (July 1992): 358–69. Columbus brought racism to the Western Hemisphere, and the current Rehnquist court continued that racism in the Brendale decision that trampled on tribal rights and treaty protections. 1833. Williams, Robert A, Jr. Like a Loaded Weapon: The Rehnquist Court, Indian Rights, and the Legal History of Racism in America. Minneapolis: University of Minnesota Press, 2005. Considers racism as an explanation for past and present Supreme Court decisions affecting tribal rights. Beginning with Marshall’s discovery and ward doctrine and moving on to Taney’s race-based decision in Williams, the Supreme Court has used race to create case law and to extend or to remove U.S. jurisdiction over tribal affairs. Despite the court’s anti-racial ruling in Brown, the high court continued to use racism to define tribal powers. This culminated in Oliphant, a Rehnquist decision. 1834. Williams, Walter L. “From Independence to Wardship: The Legal Process of Erosion of American Indian Sovereignty, 1810–1903.” American Indian Culture and Research Journal 7, no. 4 (1983): 5–32. The legal process, including the actions of the Supreme Court, did more than military conquest to erode Native sovereignty. The article discusses U.S. Supreme Court Rulings during the tenure of Chief Justice Marshall, including Fletcher v. Peck, Johnson and Graham’s Lessee v. William McIntosh, Cherokee Nation v. Georgia, and Worcester v. Georgia. Marshall intentionally acted through these decisions to

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extend federal authority over tribes. The end of treaty making is also discussed, as are later court cases, the Major Crimes Act, and the Dawes Act, which further robbed tribes of their political sovereignty. 1835. Wilson, James G. “The Eleventh Amendment Cases: Going ‘Too Far’ With Judicial Neofederalism.” Loyola of Los Angeles Law Review 33 (June 2000): 1687–1718. The Supreme Court’s Eleventh Amendment decisions, starting with Seminole Tribe v. Florida, “are some of its worst in decades,” but “[t]he Court has diluted the constitutional and federal statutory rights of millions of people, not just the Seminole Nation who wanted to force the state to negotiate in good faith.” The Supreme Court has even created a modern state nullification doctrine. 1836. Young, Stephen B. “Indian Tribal Sovereignty and American Fiduciary Undertakings.” Whittier Law Review 8, no. 4 (1987): 825–915. Influenced by Vattel’s Law of Nations, Marshall developed a middle position regarding federal fiduci-

ary responsibilities to tribes. After Marshall, Chief Justice Roger Taney wrote in the United States v. Rogers that William S. Rogers was white and not Cherokee though he had given up his American citizenship. Since Williams was white, Taney maintains that the U.S. still had authority over his trial, not the Cherokee. Taney took away from the tribes their right to determine who was a tribal citizen, basing membership identity on race. Today, the courts move between Marshall and Taney’s positions. 1837. Ziontz, Alvin J. “Indian Litigation.” In The Aggressions of Civilization: Federal Indian Policy since the 1880s, edited by Sandra L. Cadwalader and Vine Deloria, Jr., 149–83. Philadelphia: Temple University Press, 1984. Surveys selected key court decisions related to tribal sovereignty over the past century. The Supreme Court has retreated from tribal self-determination, and this trend could intensify. The courts, not Congress or the executive, will decide the outcomes of today’s tribal conflicts with non-tribal governments.

Chapter 20 Marshall Trilogy

1838. Ball, Milner S. “John Marshall and Indian Nations in the Beginning and Now.” John Marshall Law Review 33 (Summer 2000): 1183–95. The current Supreme Court has acted as a greater colonizer by taking John Marshall’s Indian rulings beyond the line of law that he intended. Marshall was right; the Supreme Court is not the place to decide tribal rights.

The Cherokee cases were key Marshall decisions, not because of their importance to tribal legal thought, but because of the political climate in which they took place. In Worcester, Marshall wrote one of his best opinions in the face of the states’ rights and nullification conflict. 1842. “The Cherokee Nation of Indians, et al., v. Georgia.” Kansas Journal of Law & Public Policy 8 (Winter 1999): 159–73. Navajo Judge Robert Yazzie presided over this moot trial and ruled the Supreme Court of American Indian Nations orders the court to issue an injunction against the state of Georgia.

1839. Berutti, Ronald A. “The Cherokee Cases: The Fight to Save the Supreme Court and the Cherokee Indians.” American Indian Law Review 17, no. 1 (1992): 291–308. Feeling President Jackson’s pressure, the Supreme Court tried to dispose of the tribal sovereignty issue in Cherokee Nation, but in the following year, Marshall used Worcester to protect the court and give it a strong foundation. The cases protected Indians from states, but the prevailing winds of the removal policy prevented the Cherokees from enjoying the court’s protections.

1843. “The Cherokee Nation v. The State of Georgia.” Kansas Journal of Law & Public Policy 8 (Winter 1999): 155–58. A copy of John Marshall’s opinion. 1844. Churchill, Ward. “The Law Stood Squarely on Its Head: U.S. Legal Doctrine, Indigenous Self-Determination and the Question of World Order.” Oregon Law Review 81 (Fall 2002): 663–706. John Marshall’s trilogy put tribal sovereignty on its head and now the time has come to put it on its feet.

1840. Breyer, Stephen, “The Cherokee Indians and the Supreme Court.” Journal of Supreme Court History 25, no. 1 (2001): 215–27. Analyzes Cherokee Nation and Worcester and discusses their aftermath. In the first case the Cherokees lost on the law but it included statements that offered them some hope. The second case seemed to have been decided favorably for the Cherokees, but they were ultimate losers and the Court the ultimate winner despite the fact that they were “fighting on the same side of the issues.” Jackson’s annulment answer to South Carolina escalated the Supreme Court to a position of greater power.

1845. d’Errico, Peter. “John Marshall—Indian Lover?” Journal of the West 39 (Summer 2000): 19–30. John Marshall’s decisions were driven by family and personal motives, as well as his support for federalism, not by a desire to champion Indian rights. Marshall may be seen as advocating a concept of “tribal quasi-sovereignty” that filled an important role in the U.S. system of land title. Johnson v. McIntosh created a legal framework for property law on a foundation of subordinate Indian occupancy and superior Christian empire.

1841. Burke, Joseph C. “The Cherokee Cases: A Study in Law, Politics, and Morality.” Stanford Law Review 21 (February 1969): 500–31.

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1846. Everett, A. H. “The Cherokee Case.” North American Review 33 (July 1831): 163–53. Discusses Cherokee Nation v. Georgia and the tribal attorney’s arguments that the Cherokee Nation should be considered a “State.” 1847. “Excerpts from Johnson v. McIntosh.” Kansas Journal of Law & Public Policy 9 (Summer 2000): 846–51. Copy of the 1823 case in which John Marshall wrote the majority opinion. 1848. Finkelstein, Norman. “History’s Verdict: The Cherokee Case.” Journal of Palestine Studies 24 (Summer 1995): 32–45. Examines the sad fate of the Cherokee after Marshall’s decisions. Parts of the text include Zionist comments. 1849. Harriman, Edward A. “Virginia’s Influence on International Law.” Virginia Law Review 12 (November 1925): 135–45. Defends Marshall’s McIntosh decision as good law, but not justice. This case “recognizes the right of conquest” where there is nothing to prevent a stronger nation from acquiring the territory of a weaker nation, unless it is persuaded not to do so. This was used to illustrate the current state of the League of Nations. 1850. Kades, Eric. “The Dark Side of Efficiency: Johnson v. McIntosh and the Expropriation of American Indian Lands.” University of Pennsylvania Law Review 148 (April 2000): 1065–1189. Land loss was the worst deprivation the U.S. inflicted on tribal America. Johnson v. McIntosh, a patent title suit, is the foundation for this land loss. 1851. Miles, Edwin A. “After John Marshall’s Decision: Worcester v. Georgia and the Nullification Crisis.” Journal of Southern History 39 (November 1973): 519–44. Describes the events that followed Worcester. Jackson wanted to isolate South Carolina from other states during the nullification crisis. This was accomplished by gaining Worcester and Butler’s release, and keeping federal troops out of Georgia. At the same time, Jackson sent federal troops to other states, including North Carolina and Tennessee, to protect Cherokee lands. 1852. Millenbach, Lew A. “Brief for the Respondent.” Kansas Journal of Law & Public Policy 9 (Summer 2000): 873–88. In defending William McIntosh in a moot trial, Millenback concludes that the original ruling of 1823 is reaffirmed.

1853. Newmyre, R. Kent, “Chief Justice John Marshall’s Last Campaign: Georgia, Jackson, and the Cherokee Cases.” Journal of Supreme Court History 23, no. 1 (1999): 76–94. Account of justices who did not work well together, a headstrong president, and the Cherokee Nation that demanded the U.S. uphold its promises. Georgia hated the Supreme Court and challenged the court’s authority. Despite these problems, Marshall merged law and morality in the final case, Worcester. 1854. Norgen, Jill. The Cherokee Cases: Two Landmark Federal Decisions in the Fight for Sovereignty. Norman: University of Oklahoma Press, 2004; first published as The Cherokee Cases: The Confrontation of Law and Politics. New York: McGraw-Hill, 1996. The Cherokee leadership followed American law and employed two attorneys to protect the international nation status of the Cherokee Nation in seeking an injunction from the U.S. Supreme Court against state encroached. In an untypical fashion, the court that misused historical evidence decided that America was under the rule of law and that rule of law maintained the nation’s western conquest. 1855. Norgen, Jill. “The Cherokee Nation Cases of the 1830s.” Journal of Supreme Court History (1994): 65–82. John Marshall used the “Cherokee Cases” “to establish an American jurisprudence of U.S.–Native American relations.” Sadly, despite Worcester, the U.S. started this relationship by violating Cherokee rights. 1856. Norgen, Jill L. and Petra T. Shattuck. “Limits of Legal Action: The Cherokee Cases.” American Indian Culture and Research Journal 2, no. 2 (1978): 14–25. Uses the examples of nineteenth-century Cherokee legal cases to caution that litigation is limited in its ability to protect Native sovereignty. 1857. Osborne, Stephen D. “‘The Voice of the Law’: John Marshall and Indian Land Rights.” In Issues in Native American Cultural Identity, edited by Michael K. Green, 57–80. New York: Peter Lang, 1995. Analyzes the Johnson v. McIntosh and Cherokee Nation decisions. During the removal period “the repression of politics and language in the legal discourse of the time was fundamental to the legitimation of the imperialist enterprise of an expanding America.” Marshall spoke “with the voice of empire,” but also “with the fully human voice of one grappling with guilt and contradiction as well as certainty.” 1858. Rice, William G. “Decisions from American Indian Nations Supreme Court.” Kansas Journal of Law & Public Policy 9 (Summer 2000): 889–905.

Marshall Trilogy

In this moot retrial of this Johnson v. M’Intosh, the new Judge Rice affirms the reconsidered decision. 1859. Robertson, Lindsay G. “Essay: John Marshall as Colonial Historian: Reconsidering the Origins of the Discovery Doctrine.” Journal of Law & Politics 13 (Fall 1997): 759–77. The Discovery Doctrine depended on John Marshall recreating British colonial policy. The historical documents available to him were not adequate to write the opinion in Johnson v. McIntosh, which has become a cornerstone in aboriginal rights. 1860. Scherer, Mark R. “‘Not Let Him Enforce It’: Exploring the Myth of Andrew Jackson’s Response to Worcester v. Georgia (1832).” Chronicles of Oklahoma, 76 (Spring 1996): 16–29. Attempts to untangle the historical controversy surrounding Jackson’s alleged utterance of this phrase, and his subsequent inaction, following the Worcester decision. Scherer attributes Jackson’s passive response to political pragmatism (i.e., concerns about the nullification crisis) rather than to idealism or hostility toward the Cherokees. The Supreme Court is as much to blame for the executive inaction. 1861. Seifert, Joshua L. “The Myth of Johnson v. M’Intosh.” UCLA Law Review 52 (October 2004): 289– 332. Legal tradition and historical events forced Marshall to be creative in writing Johnson. Seeking a manner to establish American title in the Western Hemisphere, he followed European rules of conquest to establish property rights. Following Hume instead of Locke, he was able to discard law and focus on custom thereby creating the story of America’s unique relationship with tribal nations. 1862. Sherrow, Victoria. Cherokee Nation v. Georgia: Native American Rights. Springfield, NJ: Enslow Publishers, 1997. A concise history and interpretation of this case and Worcester, as well as the Trail of Tears. The Justices had divided into three groups of two in deciding on the tribe’s foreign status in Cherokee Nation v. Georgia, with Marshall choosing the middle ground. “The Worcester decision had required courage on the part of the Justices of the Supreme Court,” but it was a hollow victory. 1863. Strickland, Rennard J. and William M. Strickland. “The Court and the Trail of Tears.” Supreme Court Historical Society Yearbook (1979): 20–30.

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In Worcester, Chief Justice John Marshall delivered one of his finest opinions, but he did not press enforcement. Some non-Indian supporters still cared about the Cherokees, but whether they supported Jackson or not they ultimately deserted the Cherokees and supported the Union. 1864. Strickland, Rennard J. and William M. Strickland. “A Tale of Two Marshalls: Reflections on Indian Law and Policy, the Cherokee Cases and the Cruel Irony of Supreme Court Victories.” Oklahoma Law Review 47 (Spring 1994): 111–26. Choctaw Nation v. Oklahoma (1970), the Arkansas River bed case, and Worcester v. Georgia (1832) delineate the last and the first Cherokee Supreme Court victories. John Marshall decided the latter and Thurgood Marshall ruled on the other. Both were Cherokee judicial victories with teeth. No soldiers enforced the first court’s ruling and there was no money in the treasury to pay the Cherokee for damages in the last case. 1865. Swindler, William F. “Politics as Law: The Cherokee Cases.” American Indian Law Review 3, no. 1 (1975): 7–20. John Marshall had to make his decisions in the last two Cherokee cases under the political clouds that covered his Supreme Court. 1866. Walters, William. “Preemption, Tribal Sovereignty, and Worcester v. Georgia.” Oregon Law Review 62, no. 1 (1983): 127–144. By examining Marshall’s famous case, explores the importance of the Commerce Clause and how it evolved into Congress’s plenary power over tribal people. States continue to press for greater authority inside reservation boundaries. 1867. Wilkins, David E. “Johnson v. McIntosh Revisited: Through the Eyes of Mitchel v. United States.” American Indian Law Review 19, no. 1 (1994): 159–81. Mitchel dealt with Colin Mitchel who obtained from Panton, Leslie, & Company title to Indian land in Florida. Mitchel is important because the decision elevated tribal political status to the same plane as the U.S., while Johnson reduced tribal political status to discovery and subject to a higher sovereign. 1868. Wright, Muriel H. “Samuel Austin Worcester: A Dedication.” Chronicles of Oklahoma 37 (Spring 1959): 2–21. A short biographical sketch followed by reprinted correspondence and documents related to his experiences with the Cherokees and Worcester v. Georgia.

Chapter 21 Federal–State–Tribal Court Relations

1869. Alleva, Patti, Lynn Slade, Robert Clinton, Phillip Wm. Lear, Frank Pommersheim, Laurie Reynolds, and Alexander Skibine. “Commentary: Dispute Resolution in Indian Country—Does Abstention Make the Heart Grow Fonder.” North Dakota Law Review 71, no. 2 (1995): 541–68. Panel discussion of the issue of abstention in federal–tribal court relationships.

The National Center for State Courts organized a Coordinating Council to prevent disputes between tribal and state courts. The Council encouraged states with large populations of tribal members to organize forums to examine inter-court relations. 1873. Carlson, Kirsten Matoy. “Towards Tribal Sovereignty and Judicial Efficiency: Ordering the Defenses of Tribal Sovereign Immunity and Exhaustion of Tribal Remedies.” Michigan Law Review 101 (November 2002): 569–601. Federal courts should hear any waiver of immunity cases, giving tribal courts the first opportunity to decide cases where tribal law applies, thus making relations between tribal and federal courts more efficient.

1870. American Indian Lawyer Training Program. Issues in Mutuality. Oakland, CA: American Indian Lawyer Training Program, Inc., 1976. As tribal courts assumed more responsibility, it became imperative that they and state courts developed means to ensure that orders and judgments made in one court were enforced in another. Full faith and credit, comity, inter-government agreements, and statutory mandates are ways to achieve mutuality. State judges are hesitant to enter into agreements because of their belief that tribal judges are not qualified and tribal courts have minimal bookkeeping.

1874. Cavanagh, Michael F. “Michigan’s Story: State and Tribal Courts Try to Do the Right Thing.” University of Detroit Mercy Law Review 76 (Spring 1999): 709–20. A former Chief Justice of the Michigan Supreme Court discusses the evolution of tribal–state relations beginning with the Indian Tribal Court/State Trial Court Forum. From this gathering other concerned individuals from tribal and non-tribal communities began to discuss joint issues.

1871. “The Application of Full Faith and Credit to Indian Nations.” Arizona Law Review 20, no. 4 (1978): 1064–74. The Constitution’s full faith and credit clause requires all states to recognize legal proceedings from other states. In passing the 1790 Trade and Intercourse Act, Congress extended full faith and credit to tribal nations. Even though the intent was to integrate the administration of justice, the Arizona Court of Appeals ruled in Brown v. Babbitt Ford, Inc. that this principle does not extend to U.S. territories or trust possessions.

1875. Clark, David S. “State Court Recognition of Tribal Court Judgments: Securing the Blessings of Civilization.” Oklahoma City University Law Review 23 (Spring and Summer 1998): 353–78. The best way to reduce state–tribal court conflicts is to accept the legal concept of full faith and credit.

1872. Bransky, James A. and Garfield W. Hood. “The State/Tribal Court Forum: Moving Tribal and State Courts from Conflict to Cooperation.” Michigan Bar Journal 72 (May 1993): 420–23.

1876. Clinton, Robert N. “Comity and Colonialism: The Federal Courts’ Frustration of Tribal–Federal Cooperation.” Arizona State Law Journal 36 (Spring 2004): 1–62.

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Federal courts hear full faith and credit cases and their decisions are enforceable whereas comity is voluntary. In the former, tribal nations will often enter into negotiated agreements with states for tax collection. The latter model is flexible and leaves for the future “the question of whether federal courts should apply federal law to their comity doctrine or adapt state comity rules” for enforcement of tribal court decisions. Since federal courts have not always followed full faith and credit, the door is open to nonIndians to bring civil suits in federal court. 1877. Clinton, Robert N. “Tribal Courts and the Federal Union.” In 1989 Harvard Indian Symposium, Cambridge, MA: President and Fellows of Harvard College, 1990, 15–98. Decolonizing federal Indian law is the central contemporary sovereignty issue. One way to do that would be to nurture the legal relationship among tribal, federal, and state courts sharing deference and cooperation between each body, including state and federal court deference to tribal court decisions and orders. To reach this plateau, the courts need to focus on the positive aspects of tribal courts. 1878. Core, M. Allen. “Tribal Sovereignty: Federal Court Review of Tribal Court Decisions—Judicial Intrusion into Tribal Sovereignty.” American Indian Law Review 13, no. 2 (1985): 175–92. In recent cases, the Supreme Court has used the phrases “inherent tribal sovereignty” or “tribal sovereignty.” Then it added wording placing tribal courts in a relationship similar to that existing between state and federal courts, thus opening the door for federal review of tribal court decisions. This claim does not stand up under a careful reading of the Constitution. 1879. Dale, Michael J. “Tribal Court Jurisdiction over Reservation-Based Claims: The Long Walk to the Courthouse.” Oregon Law Review 66, no. 4 (1987): 753–99. Neither the Farmers Union nor Iowa Mutual cases directly addressed whether an Indian can sue a nonIndian for breach of contract or tort violation. Instead, the court decided that all tribal remedies must be exhausted before the non-Indian can take the conflict to federal court. When that happens, the court will have to answer the unaddressed question. 1880. Deloria, P. S. and Robert Laurence. “Negotiating Tribal–State Full Faith and Credit Agreements: The Topology of the Negotiation and the Merits of the Question.” Georgia Law Review 28 (Winter 1994): 365–451. State and tribal negotiation bodies should be created to settle money judgments in disputes arising

from tribal–state court conflicts. The foundation for these forums is the Full Faith and Credit Act. 1881. Deloria, P. S., Phillip Wm. Lear, Blake D. Miller, Robert Laurence, and Lynn Slade. “Commentary: Litigating an Indian Jurisdiction Case—Where Must You Go First.” North Dakota Law Review 71, no. 2 (1995): 313–25. Panelists respond to an essay by Lear and Miller concerning exhaustion. Their concerns are many beginning with finding a court with a sympathetic position when seeking a dispute resolution. 1882. Engle, Karla. “Red Fox v. Hettich: Does South Dakota’s Comity Statute Foster Unwarranted State Intrusion into Tribal Jurisdictional Authority over Civil Disputes?” South Dakota Law Review 38, no. 3 (1993): 706–38. In a civil case arising on the reservation, the South Dakota Supreme Court refused comity to the previous tribal court ruling, arguing that the tribal court failed to prove it had authority to hear the case. This decision was improper based on Montana and federal statutes and case law that reveals the tribal court had authority to hear the case. 1883. Erickstad, Ralph and James Ganje. “Tribal and State Courts—A New Beginning.” North Dakota Law Review 71, no. 2 (1995): 569–88. The North Dakota Tribal/State Court Forum was started in 1993. This is one project of several that were initiated across the country with the same goals in mind—to improve the working relationships between tribal and state courts as their paths cross in Indian child welfare cases and civil suits. 1884. Feldman, Stanley G. and David L. Withey. “Resolving State–Tribal Jurisdictional Dilemmas.” Judicature 79 (November–December 1995): 154–56. In 1988, tribal judges created the Civil Jurisdiction in Indian Country Project to initiate a common dialogue with state authorities. The authors discuss avenues of cooperation including comity, but before such avenues can be pursued, state courts must respect tribal courts. 1885. Friesen, Carol. Disputed Jurisdiction and Recognition of Judgments between Tribal and State Courts: A Survey of Seven States. National Center for State Courts, 1990. These disputes are often settled through court orders and involve child support custody or domestic violence. There is no consensus on how to resolve these court differences. 1886. Garonzik, Daina. “Full Reciprocity of Tribal Courts from a Federal Courts Perspective: A Proposed

Federal–State–Tribal Court Relations

Amendment to the Full Faith and Credit Act.” Emory Law Review 45 (Spring 1996): 723–70. The full faith and credit clause was intended to protect state sovereignty. It did so by eliminating disputes between states mandating “a mutual respect for state acts, proceedings, and judgments.” Congress extended this idea to state and federal relations in 1948 in the Full Faith and Credit Act, but does this act extend to tribes? 1887. Griffith, Alanah. “The Next Chapter in the Taking of Judicial Power from the Tribes: Burlington Northern Railroad Company v. Red Wolf.” Montana Law Review 62 (Summer 2001): 339–86. Instead of following Congress’s policy of selfdetermination, the courts are moving back to assimilation. Members of the Crow tribe brought a wrongful death action against the railroad in tribal court and after a series of legal federal court maneuverings, the federal district ruled that tribal court exhaustion was not required, following Strate. 1888. Grunsted, Shelly. “Full Faith and Credit: Are Oklahoma Tribal Courts Finally Getting the Respect They Deserve?” Tulsa Law Journal 36 (Winter 2000): 381–95. Legal scholars have argued two theories, states should grant comity or tribes are territories and already under the Constitution and have Full Faith and Credit. The Oklahoma Supreme Court has granted Full Faith and Credit to tribal courts if they apply, but only fifteen nations out of thirty-seven have done so, thus opposing the application of state law upon their members. 1889. Gunn, Steven J. “Compacts, Confederacies, and Comity: Intertribal Enforcement of Tribal Court Orders.” New Mexico Law Review 34 (Spring 2004): 297–338. Examines inter-jurisdictional issues facing tribal courts and how these courts accept and enforce other court orders. Tribes can exercise their inherent sovereignty over non-members by building an intertribal enforcement program for tribal court orders. 1890. Harte, John J. “Validity of a State Court’s Exercise of Concurrent Jurisdiction over Civil Actions Arising in Indian Country: Application of the Indian Abstention Doctrine in State Court.” American Indian Law Review 21, no. 1 (1997): 63–102. Presents the idea of “discretionary abstention” where a state court would dismiss the case when tribal law applies and provides a forum for litigation when state law applies. This would prevent state courts from interpreting tribal law. This same principle would apply to federal–tribal disputes.

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1891. Hintz, James R. “Wilson v. Marchington: The Erosion of Tribal Court Civil Jurisdiction in the Aftermath of Strate v. A-1 Contractors.” Public Land & Resources Law Review 20 (1999): 145–67. A truck–automobile accident took place on the Blackfeet Reservation and in 1992 a civil trial was held in the Blackfeet Tribal Court. The court ruled in favor of Mary Jane Wilson, the plaintiff and a tribal member, and the tribe’s superior court upheld the lower court’s decision. The tribal plaintiff sought federal court recognition of the tribal court rulings and to determine the extent of a federal court’s acceptance of a tribal court tort decision. The case reached the Ninth Circuit Court of Appeals and it erred in its following of Strate and misinterpreted Montana. 1892. “Indian Law—State Jurisdiction over Indian Reservations.” William Mitchell Law Review 4, no. 2 (1978): 454–61. The Red Lake Tribal Council passed a vehicle-licensing ordinance for tribal members and approved by the Secretary of the Interior. The tribe requested that Minnesota enter into a reciprocal agreement, but the state declined. The Minnesota Supreme Court in Red Lake Band of Chippewa Indians v. State ordered the state to follow strict comity with the tribe and recognize tribal sovereignty. 1893. “Indian Tribes—Comity Accorded by State Courts as Affected by Federal Question—Absolute Executive Privilege—Davis v. Little, 398 F.2d 83 (9th Cir. 1968).” Catholic University of America Law Review 18 (Winter 1968): 248–52. This case is the first to accord comity to an Indian Nation. Comity is a theory allowing for a review of both the court hearing the case and the procedures employed. This case examined the Navajo court and how it reached a decision based on tribal absolute executive privilege. 1894. Jensen, Jon J. “Fredericks v. Eide-Kirschmann Ford: The Vehicle to Enforcing Tribal Court Civil Judgments.” North Dakota Law Review 68, no. 3 (1992): 675–88. This case involved repossession of a vehicle on the Fort Berthold Reservation where the North Dakota Supreme Court extended comity when reviewing a tribal court judgment. A requirement in comity is that the original court has authority to hear the case. This was a first step toward state court recognition of tribal judgment, but tribal courts may lose their tribal traditions to fit into Western models. 1895. Jones, B. J. “Tribal Considerations in Comity and Full Faith and Credit Issues.” North Dakota Law Review 68, no. 3 (1992): 689–94.

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State court recognition of tribal court judgments has been a positive development and tribal legislatures have passed ordinances requiring their courts to honor state judgments on the reservation. States use comity because they are subordinate in the federal system, while tribes have the freedom to enact their own laws. As federal courts become more hostile to tribal interests, state courts are more willing to work with their tribal counterparts. It is not in the best interest of tribes to follow the full faith and credit road for it might lead to lost sovereignty. 1896. Jones, B. J. “Welcoming Tribal Courts into the Judicial Fraternity: Emerging Issues in Tribal–State and Tribal–Federal Court Relations.” William Mitchell Law Review 24, no. 2 (1998): 457–514. Describes the evolution of tribal courts and the subject matter issues tribal judges decide. Tribal–state and tribal–federal court relations are also discussed, including common causes of dispute. Tribal courts are playing greater roles in dispensing justice. 1897. Joranko, Timothy W. “Exhaustion of Tribal Remedies in the Lower Courts after National Farmers Union and Iowa Mutual: Toward a Consistent Treaty of Tribal Courts by the Federal Judicial System.” Minnesota Law Review 78 (December 1993): 259–307. The Supreme Court ruled that the insurance companies must seek all possible remedies in tribal court first before pursuing action in federal court. Despite these rulings, the federal courts want to draw tribal courts into the federal system disregarding the policy of self-determination. 1898. Laurence, Robert. “The Bothersome Need for Asymmetry In Any Federal Dictated Rule of Recognition for the Enforcement of Money Judgments across Indian Reservation Boundaries.” Connecticut Law Review 27 (Summer 1995): 979–1001. Cross reservation boundary law enforcement is difficult, but an asymmetric balance between state and tribal courts may help. When the state gives the tribal clerk a judgment, the tribal court insures that infringement requirements found in Williams v. Lee are followed, and when a tribal judge sends a tribal judgment to a state court, the state makes sure that the exhaustive tests of National Farmers Union Insurance Company v. Crow Tribe must be completed before the state court can accept the case. 1899. Laurence, Robert. “The Enforcement of Judgments across Indian Reservation Boundaries: Full Faith and Credit, Comity, and the Indian Civil Rights Act.” Oregon Law Review 69, no. 3 (1990): 589–687. Following adverse court decisions that restrict tribal authority over non-members and the states’

continual inroads into reservation legal authority, tribal and state governments should negotiate cross border agreements. Tribal judges should work with state judges and tribal councils work with state legislatures. 1900. Laurence, Robert. “Full Faith and Credit in Tribal Courts: An Essay on Tribal Sovereignty, CrossBoundary Reciprocity and the Unlikely Case of Eberhard v. Eberhard.” New Mexico Law Review 28 (Winter 1998): 19–57. The case involved custody of a child whose father was from the Cheyenne River Reservation. The tribal court awarded the child to her father’s domicile. The case hinged on the tribal court’s order being honored by a California state court. Despite the defense of tribal sovereignty, there are problems related to separation of powers, and the issue of uniformity across the country. 1901. Laurence, Robert. “The Off-Reservation Garnishment of an On-Reservation Debt and Related Debt and Related Issues in the Cross-Boundary Enforcement of Money Judgments.” American Indian Law Review 22, no. 2 (1997–1998): 355–91. The first concern is to protect sovereignty through “cross-boundary recognition and enforcement rules.” These rules do not have to follow strictly “full faith and credit rules.” 1902. Laurence, Robert. “The Role, If Any, for the Federal Courts in the Cross-Boundary Enforcement of Federal, State and Tribal Money Judgments.” Tulsa Law Journal 35 (Fall 1999): 1–36. Once the Supreme Court began narrowing tribal court authority, many legal articles were written proposing ways for “cross boundary enforcement of judgments” between tribal and state courts. Laurence examines different methods of cross boundary enforcement using legal concepts in hypothetical situations to illustrate that this practice is possible and even beneficial when properly done. 1903. Laurence, Robert. “Symmetry and Asymmetry in Federal Indian Law.” Arizona Law Review 42, no. 4 (2000): 861–934. Examines the complex issues involved with cross reservation border enforcement and defines the ongoing problems as either symmetrical or asymmetrical. The writer supports the asymmetrical model. Tribal and state courts have different concerns so different legal principles should apply based on the idea of full faith and credit. The symmetrical model follows that one sovereign respects another, but questions arise when non-enforcement occurs. 1904. Laurence, Robert. “Tremors: Justice Scalia and Professor Clinton Re-Shape the Debate over the Cross-

Federal–State–Tribal Court Relations

Boundary Enforcement of Tribal and State Judgments.” New Mexico Law Review 34 (Spring 2004): 239–61. Full Faith and Credit emanates from the Constitution and comity is a sovereign’s self-imposed restraint. Asymmetry occurs when different tests are applied to different courts. In Nevada v. Hicks, Scalia decided that federal law permits states to execute search warrants on reservations. In his essay, “There Is No Federal Supremacy Clause for Indian Tribes,” Robert Clinton argues plenary power of Congress is so limited that it restricts Congress from enacting any Full Faith and Credit legislation that is applicable to tribal nations. 1905. Laurence, Robert. “What Could American Indian Law Possibly Have to Do with the Issue of GayMarriage Recognition?: Definitional Jurisprudence, Equal Protection and Full Faith and Credit.” Northern Illinois University Law Review 24 (Summer 2004): 563–87. Tribal communities and gay communities differ in many ways, but at the heart of their conflicts with states and the federal government lay similar principles—Equal Protection and Full Faith and Credit. If everyone followed these legal principles, the country’s governments and citizens might display greater tolerance of diversity. 1906. Lear, Phillip Wm. and Blake D. Miller. “Exhaustion of Tribal Court Remedies: Rejecting the Bright-Line Rules and Affirmative Action.” North Dakota Law Review 71, no. 2 (1995): 277–311. Tribal–state court judgment acceptance is the latest round in the jurisdiction conflict between tribes and states since the Supreme Court mandates that in reservation civil suits the tribal court has original authority. Includes a discussion of mineral extraction and the problems that tribal court exhaustion presents in this area. 1907. Light, Alfred R. “Sovereignty Myths and Intergovernmental Realities: The Etiquette of Tribal Federalism.” St. Thomas Law Review 14 (Winter 2001): 373–93. Contrasts the Printz decision of a court enforcing another sovereign’s policy with the Hicks ruling that tribal courts cannot apply another sovereign’s law all the time. Based on the Hicks decision, the Supreme Court returned inherent sovereignty and “should not be surprised if the remnants of tribal sovereignty . . . constitute little more than a symbol for tribal federalism.” 1908. Michaels, Lee S. “Courts—State Courts in New York May Not Inquire into Propriety of Indian Court Decisions.” Syracuse Law Review 17 (Fall 1965): 87–89.

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Two Seneca members disapproved “of a condemnation award.” The tribal council directed the parties to the New York Court of Claims for a decision, but on appeal, the court ruled that the 1953 amendment to the New York Indian Law was only “permissive in nature,” preventing the state court from interfering in tribal courts since the tribal court was the court of origin for the suit. 1909. Mitchell, John Arai. “A World without Tribes? Tribal Rights of Self-Government and the Enforcement of State Court Orders in Indian Country.” University of Chicago Law Review 61 (Spring 1994): 707–32. Examines the “no [tribal] law” issue when a tribal government has not passed an ordinance on the issue that has created conflicting interpretations. Based on United States v. Montana, the Supreme Court decided that state authority ceased if it threatened the political health of the tribe. 1910. Moshier, John T. “Conflicts between State and Tribal Law: The Application of Full Faith and Credit Legislation to Indian Tribes.” Arizona State Law Journal 1981, no. 3 (1981): 801–20. The Navajo Tribal Code prohibits repossession without debtor consent. Debtors want state courts to apply tribal law on the reservation, arguing that full faith and credit should be applied in debt-collection situations. An analysis of case law concludes that tribal nations qualify as either territories or federal possessions and tribal laws are entitled to full faith and credit. 1911. Nakai, Katosha Belwin. “Red Rover, Red Rover, A Call for Comity in Linking Tribal and State LongArm Provisions.” Arizona State Law Journal 35 (Summer 2003): 633–93. With twenty-one tribal sovereigns, the Arizona Supreme Court in 2000 established “Rules of Procedure for the Recognition of Tribal Court Civil Judgments.” No comity arrangement is perfect, but this one provides a format to preserve tribal sovereignty. 1912. Niblock, Raymond L. “Federal Courts, Tribal Courts, and Comity: Developing Tribal Judiciaries and Forum Selection.” University of Arkansas at Little Rock Law Journal 19 (Winter 1997): 219–40. Background on tribal courts serves as a prelude to an argument for the creation of a tribal judiciary that is separate from federal courts “to determine in what court a civil action involving a tribe” should be filed. 1913. Pace, Julie A. “Enforcement of Tribal Law in Federal Court: Affirmation of Indian Sovereignty or a Step Backwards Towards Assimilation?” Arizona State Law Journal 24 (Spring 1992): 435–70.

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Federal courts have expanded federal authority on reservations by enforcing tribal ordinances. The negative result of such decisions is the loss of tribal sovereignty. Federal courts should return criminal cases to tribal court for a cultural interpretation and mandate the exhaustion of tribal remedies before federal intervention. 1914. Pedersen, Alden. “Decision of Indian Tribal Court held Reviewable through Federal District Court Habeas Corpus Proceedings.” Montana Law Review 26, no. 2 (Spring 1965): 235–40. A female tribal resident of Fort Belknap claimed that she was wrongfully being held in the tribe’s jail and she sued in federal court in Colliflower v. Garland. Without state jurisdiction, federal courts provide the only hope for Indians to receive due process. 1915. Pommersheim, Frank. “Tribal Courts and Federal Courts: A Very Preliminary Set of Notes for Federal Courts Teachers.” Arizona State Law Journal 36 (Spring 2004): 63–76. The Farmers Union and Iowa Mutual cases stressed the exhaustion doctrine meaning that all tribal court remedies must be followed before the case can be appealed to a federal court. The exhaustion doctrine is important in contemporary tribal law scholarship though there is no federal legislation that authorizes such action. 1916. Pommersheim, Frank. “Tribal Courts and the Federal Judiciary: Opportunities and Challenges for a Constitutional Democracy.” Montana Law Review 58 (Winter 1997): 313–32. Tribal courts have assumed a greater role in building tribal sovereignty. A troublesome new relationship is being forged with federal courts. The federal courts made inroads into tribal sovereignty through the cases of National Farmers Union and Iowa Mutual. 1917. Ragsdale, Fred L., Jr. “Problems in the Application of Full Faith and Credit for Indian Tribes.” New Mexico Law Review 7 (Summer 1977): 133–52. The Full Faith and Credit Clause was a way to develop working relationships between states by forcing them to accept judgments from one state to another, but tribes are not mentioned in the constitutional clause. Extending full faith and credit would be one way to work out disputes between tribes and states. 1918. Ransom, Richard E., Nell Jessup, Christine Zuni, P. S. Deloria, Robert N. Clinton, Robert Laurence, Newton, and M. E. Occhialino, Jr., “Recognizing and Enforcing State and Tribal Judgments: A Roundtable

Discussion of Law, Policy, and Practice.” American Indian Law Review 18, no. 2 (1993): 239–83. A discussion panel focusing on government-togovernment relationships between different sovereigns’ judiciaries. 1919. “Report of the State Court and Tribal Court Forum.” Michigan Bar Journal 72 (May 1993): 424–30. The Michigan Forum concluded that tribal civil jurisdictions in Indian Country included both Indian and non-Indians forcing inter-court cooperation. State and tribal courts must work together in both on and off reservation situations. 1920. Resnik, Judith. “Tribes, Wars, and the Federal Court: Applying the Myths and the Methods of Marbury v. Madison to Tribal Courts’ Criminal Jurisdiction.” Arizona State Law Journal 36 (Spring 2004): 77–135. Colonization and conquest make it impossible for tribal nations to untangle themselves from the U.S. and its courts. There must be comity between the federal courts and tribal courts like that between the federal and states courts. 1921. Reynolds, Laurie. “Exhaustion of Tribal Remedies: Extolling Tribal Sovereignty While Expanding Federal Jurisdiction.” North Carolina Law Review 73 (March 1995): 1089–1157. National Farmers Union Insurance Cos. V. Crow Tribe of Indians developed the “exhaustion rule” where all tribal court remedies have to have been completed before moving a case to federal court. This rule is a liability for tribal courts because it fails “to accord proper deference to tribal determinations.” Tribal sovereignty can be enhanced if federal jurisdiction to hear cases is restricted. 1922. Rubin, Ted. Disputed Jurisdiction and Recognition of Judgments between Tribal and State Courts: A Typology of States with Indian Country. National Center for State Courts, 1990. Interviews were conducted and surveys sent to both tribal and state officials, and the two greatest concerns were jurisdictional disputes and reorganization of each other’s court orders. 1923. Salmon, Sue. “Jurisdiction: Exhaustion of Remedies and the Status of Tribal Courts.” American Indian Law Review 4, no. 2 (1976): 295–301. State and tribal sovereignty has to be weighed against federal interests. Federal courts have done well in seeking a good balance between tribal and state courts. 1924. Schlegel, Richard P. “Tribal Courts’ Jurisdiction: ‘National Farmers Union’ and ‘Iowa Mutual’: Insur-

Federal–State–Tribal Court Relations

ance for the Tribes.” Law & Anthropology 6 (1991): 95–108. National Farmers Union declared that comity dictated that tribal courts determine their authority before a case can be removed to a federal forum. Iowa Mutual bars retrial of a case providing the tribal court was tried properly in tribal court. These two cases strengthen tribal civil jurisdiction. 1925. Skibine, Alex Tallchief. “Deference Owed Tribal Courts’ Jurisdictional Determinations: Towards CoExistence, Understanding and Respect between Different Cultural and Judicial Norms.” New Mexico Law Review 24, no. 2 (Spring 1994): 191–223. In recent years, the Supreme Court has moved discussion from “tribal jurisdiction based on tribal sovereignty” to asking whether upholding tribal jurisdiction is necessary for tribal sovereignty. Applying this change to tribal courts removes any deference to them. 1926. Slade, Lynn H. “Dispute Resolution in Indian Country: Harmonizing National Farmers Union, Iowa Mutual, and the Abstention Doctrine in Federal Courts.” North Dakota Law Review 71, no. 2 (1995): 519–40. Federal courts developed the abstention doctrine based on two premises “limiting federal courts’ intrusion upon important areas of state policy and avoiding duplication.” It is proper for federal courts to apply this state abstention doctrine to the tribal courts, but recent federal decisions have denied much of the authority by making federal courts avenues of appeal from tribal courts. 1927. Smith, Philip J. “National Farmers Union and Its Progeny: Does It Create a New Federal Court System?” American Indian Law Review 14, no. 2 (1988–89): 333–51. Farmers Union in its best view sends litigants to tribal court, but in its worst analysis the case forces tribal courts to become part of the federal court system because after tribal exhaustion, the cases move to federal court. 1928. Stoner, Kelly and Richard A. Orona. “Full Faith and Credit, Comity, or Federal Mandate? A Path That Leads to Recognition and Enforcement of Tribal Court Orders, Tribal Protection Orders, and Tribal Child Custody Orders.” New Mexico Law Review 34 (Spring 2004): 381–404. Full Faith and Credit Act would restrict tribal sovereignty. Comity is a better path, a path that many states have accepted in relations with tribal courts. ICWA gives greater strength to tribal orders. 1929. Tatum, Melissa L. “Law Enforcement Authority in Indian Country.” Tribal Law Journal 4 (2003–2004): online. http://tlj.unm.edu/articles/

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Congress enacted the Violence against Women Act in 1994 requiring that a protection order issued by a state or tribal court “shall be accorded full faith and credit by the court of another State or Indian tribe.” This forces tribes and states to honor protection orders that were issued by other tribes and states. This act might minimize some gaps in the cross border “jurisdictional enforcement of protection orders.” The law’s shortcoming is that not all differences between states and tribes were considered. 1930. Tebben, Carol. “Trifederalism in the Aftermath of Teague: The Interaction of State and Tribal Courts in Wisconsin.” American Indian Law Review 26, no. 2 (2001–2002): 177–201. Teague involved conflict between the state and Bad River Band of the Lake Superior Tribe of Chippewa Indians tribal court over a case in which a former tribal employee sought monetary damages against the Band. The State Supreme Court in 2000 encouraged the state and tribal judges to solve their jurisdictional disputes. In general as well as in Wisconsin, cooperation between tribal and state courts has become increasingly common. 1931. Tutterow, John T. “Federal Review of Tribal Court Decisions: In Search of a Standard or a Solution for the Problem of Tribal Court Review by the Federal Courts.” Oklahoma City University Law Review 23 (Spring and Summer 1998): 459–500. Mutual Insurance Co. and National Farmers Union Insurance brought tribal courts into the forefront of tribal sovereignty as the first court of redress for reservation civil disputes. The question is what kind of a review process should be developed if a case moves from tribal court to federal court. The current practice is to follow the National Farmers Union requirements where the case is filed in federal court, but no actions can begin until all tribal remedies are exhausted. A standard solution to this problem would involve a two-road approach where all tribal based solutions stay with the tribe and federal remedies move forward to federal courts. 1932. Vetter, William V. “Of Tribal Courts and ‘Territories’ Is Full Faith and Credit Required?” California Western Law Review 23 (Spring 1987): 219–72. Recent congressional acts reveal that the U.S. does not believe that full faith and credit applies to tribes. As tribal courts continue to rule in more areas, the Constitution’s full faith and credit clause (Article IV, section one) will become an important area for states to consider in their relations with tribes.

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1933. Wallace, Clifford J. “A New Era of Federal–Tribal Court Cooperation.” Judicature 79 (November– December 1995): 150–53. Tribal law is not Indian law. The latter was developed by the U.S. and the former by the tribes. Tribal courts, by using tribal law, have developed some exceptionally strong procedures for dispute resolution that other courts would benefit from examining. 1934. Washburn, Kevin K. “A Different Kind of Symmetry.” New Mexico Law Review 34 (Spring 2004): 263–96. As states become more accepting of tribal court decisions, there is a discussion of symmetry versus asymmetry in state approaches to tribal courts, except South Dakota, a state that has remained hostile. 1935. White, Phillip Allen. “The Tribal Exhaustion Doctrine: ‘Just Stay on the Good Roads, and You’ve Got

Nothing to Worry About.’” American Indian Law Review 22, no. 1 (1997–1998): 65–170. Scrutinizes tribal territorial sovereignty and who has authority. The exhaustion doctrine is a procedure to maintain tribal sovereignty on the tribe’s territory. Strate v. A-1 Contractors created a long and arduous tribal exhaustion legal process, but this was necessary given the context of recent Supreme Court decisions that narrowed tribal court authority. 1936. Wright, Gordon K. “Recognition of Tribal Court Decision in State Courts.” Stanford Law Review 37 (May 1985): 1397–1424. Tribal courts are maturing under the policy of self-determination but state courts have been reluctant to accept their orders. Tribal courts must implement needed reforms to overcome state court reluctance.

Chapter 22 Attorneys, Legal Aid, and Law Associations

1937. Anderson, Robert T. “Criminal Jurisdiction, Tribal Courts and Pubic Defenders.” Kansas Journal of Law & Public Policy 13 (Fall 2003): 139–52. Describes the University of Washington’s Native American Law Center and its work as public defender for the Tulalip Tribes.

1942. Bernard, Phyllis E. “Community and Conscience: The Dynamic Challenge of Lawyers’ Ethics in Tribal Peacemaking.” University of Toledo Law Review 27 (Summer 1996): 821–51. Alternative Dispute Resolution is both an old and new tradition in tribal courts. The most common method is for tribes to develop Peacemaker Courts that are part of the tribal court system. It is important for attorneys to be aware of the ways tribal peacemaking differs from Western ADR.

1938. Anstead, Harry Lee. “Legal Ethics and the Struggle of Native Americans.” St. Thomas Law Review 9 (Fall 1996): 5–13. Stresses the importance of having all parties in the legal profession discuss issues pertaining to indigenous people.

1943. Black, Charles L., Jr. “Counsel of Their Own Choosing.” American Indian 6 (Fall 1951): 3–17. In the mid-1950s, the BIA began a regressive policy of disapproving tribal contracts with lawyers. The NCAI and other civil liberties groups opposed this decision, but there was no change in policy. Right to counsel is an important American freedom and essential to tribal governance.

1939. Arthur, Claudeen Bates. “The Role of the Tribal Attorney.” Arizona State Law Journal 34 (Spring 2002): 21–26. A Navajo attorney and former Attorney General of the Navajo Nation provides a cultural foundation for understanding political sovereignty based on the idea of tribal identity.

1944. Claiborne, Louis F. “Black Men, Red Men, and the Constitution of 1787: A Bicentennial Apology from a Middle Templar.” Hastings Constitutional Law Quarterly 15 (Winter 1988): 269–93. One should not trust lawyers because when the Constitution was being drafted, the framers had the chance to protect tribal and black interests, but did not.

1940. August, Jack, Jr. “The Navajos and the Great Society: The Strange Case of Ted Mitchell and DNA.” Canon: The Journal of the Rocky Mountains American Studies Association 1 (Spring 1994): 8–28. History of the Navajo legal services program (DNA) and the political conflict that arose between its leader and ONEO director, Peter MacDonald, during the late 1960s. The Navajo people wanted this service but were offended by its imposition of Anglo values that conflicted with Navajo social organization.

1945. Crump, Richard S. “Twentieth Century Cherokee Property Claims: A Study Based on the Case Files of Earl Boyd Pierce.” American Indian Law Review 19, no. 2 (1994): 507–41. Discusses his legal work for the Cherokee—work that lasted decades, including filing cases with the ICC. Pierce became the first full–time Cherokee tribal attorney in 1938.

1941. Bellmard, Ken. “Endeavoring to Preserve: Becoming and Being a Tribal Attorney.” Kansas Journal of Law & Public Policy 9 (Summer 2000): 752–61. A human-interest memoir on becoming a tribal attorney that examines the do’s and don’ts of representing a small tribe.

1946. Cruz, Christine Zuni. “Four Questions on Critical Race Praxis: Lessons from Two Young Lives in

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Indian Country.” Fordham Law Review 73 (April 2005): 2133–60. Examines the relationship between race and practicing law. Cruz is optimistic, noting that critical race lawyering in Indian Country exists, but requires a strong understanding of tribal history. 1947. Cruz, Christine Zuni. “[On The] Road Back In: Community Lawyering in Indigenous Communities.” American Indian Law Review 24, no. 1 (1999–2000): 229–71. Community lawyering differs from, and is superior to, the traditional form, and suggests strategies for doing work successfully. Native attorneys face particular challenges, and can play especially effective roles by returning to work in their communities. 1948. Deloria, Philip S. “The American Indian Law Center: An Informal History.” New Mexico Law Review 24 (Spring 1994): 285–307. Historical overview of the development of the University of New Mexico Law School program for tribal law and efforts to increase the number of Indian students in the law school. 1949. Deloria, Philip S. and Robert Laurence. “What’s an Indian? A Conversation about Law School Admissions, Indian Tribal Sovereignty and Affirmative Action.” Arkansas Law Review 44, no. 4 (1991): 1107–35. A taped and transcribed discussion was held at the Indian Law Center, University of New Mexico, on February 21, 1991. This is an engaging conversation between two attorneys who have different interpretations on these three very important topics. 1950. Dobyns, Henry F. “Therapeutic Experience of Responsible Democracy.” In The American Indian Today, edited by Stuart Levine and Nancy Oestreich Lurie, 268–91. Baltimore, MD: Penguin Books, 1970. Since 1946 and the ICC, tribal attorneys have become more important players, aiding in the drive to self-determination and self-governance. They exist apart from the traditional chain of command, can play governmental forces off of each other for tribal benefit, and they help tribes deal with states. 1951. Dockser, Amy. “Fighting for Sovereignty in Indian Country: The Strip Mining of a Sacred Mesa on the Navajo Reservation Where She Grew Up Taught Susan Williams the Need For a National Indian-owned Law Firm.” American Lawyer 10, no. 3 (1988): 106. Deals with the importance of attorneys in the quest for Navajo sovereignty.

1952. “Federal Court—Jurisdiction: In General—Federal Courts Lack Jurisdiction over Suit Brought by NonIndian against Tribal Indian.” Harvard Law Review 79 (February 1966): 851–55. Littell v. Nakai began when the Navajo government decided to replace their attorney, thereby breaking his contract. The federal courts had no authority to intervene in this case. 1953. Fletcher, Matthew L.M. “Sawnawgezewog: “The Indian Problem” and the Lost Art of Survival.” American Indian Law Review 28, no. 1 (2003–2004): 35–105. Overview by a tribal attorney of federal Indian law focusing on important historical and modern cases (Kagama, Lone Wolf v. Hitchcock; Tee-Hit-Ton, Oliphant, Lung, Hagen v. Utah; Montana v. United States; and Seminole Tribe of Florida v. Florida). Fletcher offers a hypothetical scenario to illustrate his points, and ends with a call to action by urging tribal attorneys and leaders to “arm themselves with knowledge” in the on-going efforts to protect and promote tribal sovereignty. 1954. Ford, Cynthia. “Integrating Indian Law into a Traditional Civil Procedure Course.” Syracuse Law Review 46, no. 4 (1996): 1243–81. Ford sent questionnaires and developed a teaching packet. Ideally, all law school classes would include some aspects of tribal law, but civil procedures class is a good place to start because that area of law would expose students to the do’s and don’ts. 1955. Gamino, John. “Indian Claims Commission: Discretion and Limitation in the Allowance of Attorney Fees.” American Indian Law Review 3, no. 1 (1975): 115–35. Courts have fixed attorney fees at 10 percent of the settlement, even though the law provided for high rates despite the upward pressure of the act’s language. 1956. Gold, David I. “I Know You’re the Government’s Lawyer, But Are You My Lawyer Too? An Exploration of the Federal–Native American Trust Relationship and Conflicts of Interest.” Buffalo Public Interest Law Journal 19 (2000–2001): 1–23. The Federal trust relationship with tribes breaks down, as decided in Nevada v. United States (1983), because Congress cannot represent both parties properly. The trust relationship should be modified through the creation of a litigation trust fund and tribal self-representation. 1957. Gross, Michael Paul. “Reckoning for Legal Services: A Case Study of Legal Assistance in Indian Educa-

Attorneys, Legal Aid, and Law Associations

tion.” Notre Dame Lawyer 49 (October 1973): 78–104. The Office of Economic Opportunity hired an army of attorneys to use their legal skills to end poverty. Gross was one of the soldiers. Congress and OEO lawyers must do a better job of listening to the poor. 1958. Halverson, Lowell K. “Report on Legal Services to the Indians: A Study in Desperation.” In Native Americans Today: Sociological Perspectives, edited by Howard M. Bahr, Bruce A. Chadwick, and Robert C. Day, 338–44. New York: Harper & Row, 1972. Urban Indians are not using government legal services “because of institutionalized distrust of governmental agencies, impatience with the slowness of these agencies, and ignorance of their existence.” Trained paraprofessionals may offer a solution. 1959. Hill, Gerald L. “Conflicts of Interest for Tribal Lawyers Representing Their Own Tribes.” Kansas Journal of Law & Public Policy 8 (Winter 1999): 147–54. There is always the concern about a conflict of interest when one is an attorney who represents his or her own tribe. The pitfalls of such a venture are discussed. 1960. Hopkins, Kenneth N. “Henry S. Johnston: Attorney for the Otoe–Missouris.” Chronicles of Oklahoma 63 (Spring 1985): 28–47. Historians have characterized the politician as inept, but have ignored the liberal and valuable service he rendered as an attorney for these Oklahoma Indians. During the first half of the twentieth century, he handled divorces, inheritance cases, and land claims versus the U.S. He also defended the peyote religion. 1961. Iverson, Peter. “Legal Assistance and Navajo Economic Revitalization.” Journal of Ethnic Studies 4 (Fall 1976): 21–34. As conflicts with states, outside companies, and the federal government have escalated, legal services have assisted the Navajos in pushing toward nationhood. The Navajo government was instrumental in the push for legal aid during the 1950s. The advent of OEO merged into a Navajo organization, DNA, to assist poor Navajos whose rights were threatened. 1962. Iverson, Peter. “Legal Counsel and the Navajo Nation since 1945.” American Indian Quarterly 3 (Spring 1977): 1–15. The ICC was the springboard that brought many attorneys into the service of tribal governments. Iverson follows Norman Littell’s career with the Navajos. Peter McDonald used tribal counsel to secure im-

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portant assets for the tribe and argued with the BIA over tribal matters. In the process, legal counsel strengthened tribal nationalism. 1963. Johnson, Ralph W. “Indian Tribes and the Legal System.” Washington Law Review 72 (October 1997): 1021–41. Overview of the development of Indian law studies and programs from 1966, when Congress passed the Tribal Federal Jurisdiction Act, to the present. Focuses on the growth of federal and tribal law studies. 1964. Kickingbird, K. Kirke. “Vehicle of Change.” ABA Journal 86 (September 2000): 70. The Native American Bar Association provides some assistance and support to tribal lawyers, as well as educating the public on the importance of tribal legal issues. 1965. McDermott, John T. “The Indian Law Program at the University of Montana.” Montana Law Review 33 (Summer 1972): 187–90. In 1966, the Law School operated a summer intern program that was the beginning of the Indian clinical option. It helped to draft new tribal codes, assisted with tribal courts, and students served as ombudsmen for tribal members in dealings with tribal and nontribal agencies. A Tribal Judge’s Conference was organized in 1967 and in 1971 the Council on Legal Education for Professional Responsibility permitted the clinical program to expand. 1966. McLaughlin, Robert. “The Native American Challenge In Pursuit of Tribal Sovereignty.” Juris Doctor 6 (October 1976): 51–58. Tribal cases were won in the 1960s and 1970s due to better legal counsel and help from NARF, the tribes’ national law firm. The Department of Justice created a separate branch called the Indian Resources Section in the Land and Natural Resources Section so that different attorneys would represent the tribes’ trust interests against the U.S., instead of the same government attorneys representing both defendant and plaintiff. 1967. McLaughlin, Robert. “Who Owns the Land? A Native America Challenge.” Juris Doctor 6 (September 1976): 17–25. The 1975 legal victory for the Passamaquoddy illustrated the importance of land ownership, but it also made them federally recognized under the trusteeship of the U.S. An important aspect of this case was the tribe’s ability, with their Penobscot allies, to access legal counsel. 1968. Medcalf, Linda. Law and Identity: Lawyers, Native Americans, and Legal Practice. Beverly Hills/Lon-

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don: Sage Publications. Sage Library of Social Research, vol. 62, 1978. Handbook for lawyers practicing tribal law, arguing that attorneys working with Indian people must not let other sovereigns encroach on tribal sovereignty. Native Americans must be educated on their rights and encouraged to assert them. 1969. Miller, Fred H. and Duchess Bartmess. “Uniform Laws: Possible Useful Tribal Legislation.” Tulsa Law Journal 36 (Winter 2000): 305–34. The National Conference of Commissioners on Uniform State Laws was organized in 1891 to create a degree of uniformity among state laws. Recently the organization created a Committee on Liaison with Native American Tribes for the purpose of exchanging information and this vehicle might help tribes make their laws more uniform. 1970. Nunn, Francis L. “Quantum Meruit and Contingent Fees in Indian Claims Cases.” George Washington Law Review 20 (March 1952): 621–30. The risk in accepting long claims litigation discouraged many attorneys from taking these claims. The attorneys were paid on a fee contingent if they were successful. Contingency fees vary based on the nature and risk of the case, but with the settlement of the case Confederated Bands of Ute Indians v. United States, the ICC accepted generally 10 percent as compensation. 1971. Price, Monroe E. “Lawyers on the Reservation: Some Implications for the Legal Profession.” Law and Social Order 1, no. 2 (1969): 161–206. OEO provides new opportunities for attorneys to work on reservations. Practicing reservation law is different than practicing law among the urban poor because of tribal sovereignty and reservation natural resources. 1972. Rice, William. “Of Cold Steel and Blueprints: Musing of an Old Country Lawyer on Crime, Jurisprudence, and the Tribal Attorney’s Role in Developing Tribal Sovereignty.” Kansas Journal of Law & Public Policy 7 (Winter 1997): 31–71. Examines the importance of Indian and non-Indian lawyers working for tribes. Attorneys should strive to prevail in current cases while seeking to enhance tribal sovereignty in the long-term. 1973. Rice, William. “There and Back Again—An Indian Hobbit’s Holiday: Indians Teaching Indian Law.” New Mexico Law Review 26 (Spring 1996): 169–90. Describes the experiences of Indian law faculty teaching in law schools. 1974. Richland, Justin B. and Sarah Deer. Introduction to Tribal Legal Studies. Walnut Creek, CA: AltaMira Press, 2004.

Publication resulting from Project Peacemaker Tribal Legal Studies Program and four tribal colleges’ efforts to develop course materials for tribal courts. It attempts to create a written format that can be used in tribal court training sessions to provide information on how tribal law can be developed. 1975. Semple, W. F. and Winnie Lewis Gravitt. “Grady Lewis, Choctaw Attorney.” Chronicles of Oklahoma 33 (Autumn 1955): 301–5. Eulogy with short descriptions of his work on behalf of the Choctaws before the Court of Claims in 1951. 1976. Stauss, Joseph H., Bruce Chadwick, Howard M. Bahr, and Lowell K. Halverson. “An Experimental Outreach Legal Aid Program for Urban Native American Population Utilizing Legal Paraprofessionals.” Human Organization 38 (Winter 1979): 386–94. In the past decade, 200,000 tribal members have moved into cities and face discrimination at the hands of law enforcement and the courts. Many of these urban Native Americans believed that legal aid was only for urban whites and blacks. To counter these problems in Seattle, a paralegal aid organization was created to assist urban Native Americans get through the judicial system. 1977. Strickland, Rennard. “Educating Indian Lawyers is not Enough.” Student Law Journal 17 (May 1972): 4–9. Lawyer education is a first step toward tribal selfdetermination. 1978. Strickland, Rennard. “An Essay: Take Us by the Hand: Challenges of Becoming an Indian Lawyer.” American Indian Law Review 2 (Winter 1974): 47–59. Lawyers working for tribes, which is a privilege and an honor in its own right, have to learn to navigate the maze of federal Indian law. 1979. Strickland, Rennard. “Indian Law and Policy: The Historians Viewpoint.” Washington Law Review 54 (June 1979): 475–78. Lawyers have been dominant figures in tribal planning, but now social planners may become more powerful as tribes begin to develop new programs. 1980. Strickland, Rennard. “You Can’t Rollerskate in a Buffalo Herd Even If You Have All the Medicine: Some Thoughts on Indian Law and Lawyering.” In 1989 Harvard Indian Symposium, 3–14. Cambridge, MA: President and Fellows of Harvard College, 1990. Describes the challenges of those who enter the field of Indian law as practicing attorneys. With those victories came maturation of Indian law as a field and

Attorneys, Legal Aid, and Law Associations

greater responsibility and accountability by those practicing Indian law. 1981. Strickland, Rennard and Gloria Valencia-Weber. “Observations on the Evolution of Indian Law in the Law Schools.” New Mexico Law Review 26 (Spring 1996): 153–68. The two authors examine the positive influence that law schools teaching tribal law have had on the legal profession. 1982. Suagee, Duane B. “The Indian Country Environmental Justice Clinic: From Vision to Reality.” Vermont Law Review 23 (Spring 1999): 567–604. Describes the Vermont Law School’s development of the First Nation’s Environmental Law Program. 1983. Swan, Robert C. “Indian Legal Services Programs: The Key to Red Power.” Arizona Law Review 12 (Fall 1970): 594–626. The 1964 Economic Opportunity Act created federally funded social programs, but not legal services. The following year, the Legal Services Program was created as a separate OEO division, and the creation of the Dinebeiina Nahiilna be Agaditache, Attorneys Who Contribute to the Economic Revitalization of the People, was the first such program on a reservation. The creation of the Papago (Tohono O’odham) and Navajo legal services was important because lawyers established relationships with tribal governments, the BIA, and community services. 1984. Tullberg, Steven and Robert T. Coulter. “The Failure of Indian Rights Advocacy: Are Lawyers to Blame?” In Rethinking Indian Law, 51–56. New York: National Lawyers Guild, Committee on Native American Struggles, 1982. Lawyers representing Indians are partially responsible for failures to secure tribal rights. They have too often shuffled their feet and have often referred to their clients in court as wards of the federal government. 1985. Valencia-Weber, Gloria. “Law School Training of American Indians as Legal-Warriors.” American Indian Law Review 20, no. 1 (1995–1996): 5–63. Tribal legal staff must work outside the Western legal system to create tribal law in an evolving world, and not follow generic training in Western law. 1986. Vicenti, Carey N. “The Social Structures of Legal Neocolonialism in Native America.” Kansas Journal of Law & Public Policy 10 (Spring 2001): 513–32. Challenges the legal profession as a neocolonial institution, arguing that by even joining the bar, often a requirement for tribal legal employment, lawyers take an oath to uphold the Constitution, not the sovereignty of the tribe.

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1987. Watson, Editha L. “The Indian as a Lawyer.” Dicta 7 (July 1930): 10–18. A short, human-interest story providing an ethnographic overview of tribal laws, property rights, and marital practices. Many different cultures are discussed with the end goal to demonstrate that law and lawyers (or diplomats) are part of every culture. 1988. White, Dale T. “Tribal Law Practice: From the Outside to the Inside.” Kansas Journal of Law & Public Policy 10 (Spring 2000): 505–11. Discusses his personal experiences in Indian law, as well as trends in legal scholarship and the new patterns of tribal nations hiring their own legal counsel. 1989. Wise, Katherine J. “A Matter of Trust: The Elimination of Federally Funded Legal Services on the Navajo Nation.” American Indian Law Review 21, no. 1 (1997): 157–81. During the 1995–1996 national budget debates, Legal Services Corporation was in a conflict to obtain funding to continue its work. Despite Congress’s trust responsibility to tribes, cuts are taking place in legal services and social services that will only make conditions worse on the Navajo Nation. 1990. Wunder, John R. “Walter Echo-Hawk (Pawnee).” In The New Warriors: Native American Leaders since 1900, edited by R. David Edmunds, 299–321. Lincoln: University of Nebraska Press, 2001. As one of NARF’s senior staff attorneys, EchoHawk is a “legal warrior” who has worked for individual Native and tribal rights. Wunder surveys his and other NARF attorneys’ efforts regarding prisoners’ rights, tribal recognition and restoration, fishing rights, water rights, tax law, jurisdiction, gaming, sacred sites protection, NAC freedoms, repatriation, and other issues of vital interest to American Indians. 1991. Yazzie, Robert. “Address to the Ninth Annual Coming Together of the Peoples Conference of the Indigenous Students Association: Where Should Lawyers Be When the People Come Together?” American Indian Law Review 20, no. 1 (1995–1996): 301–5. Offers his views on the future of tribal lawyers and the problems they will face. 1992. Yazzie, Robert. “Law School as a Journey.” Arkansas Law Review 46, no. 1 (1993): 271–74. A Navajo attorney reflects on his law training and provides wisdom often heard in Indian Country; once done training you must go home.

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1993. Yellow Bird, Dorreen. “Legal Warriors.” ABA Journal 86 (March 2000): 67. Teaching cultural values is an important part of educating tribal lawyers. 1994. Zlock, Tracy N. “Native American Tribe as a Client: An Ethical Analysis.” Georgetown Journal of Legal Ethics 10 (Fall 1996): 159–84.

The Lakota people contend that the U.S. monetary award for the Black Hills was done incorrectly. They claim that their legal counsel pushed the claim for a monetary settlement without tribal authorization and that a monetary settlement has been misrepresented since 1923. Despite poverty, close to 10 percent of tribes refuse to take money claims that their attorneys have won.

Chapter 23 Law Enforcement Agencies

creation of the U.S. Indian Police force, which served on forty different agencies.

1995. Barker, Michael L. Policing in Indian Country. New York: Harrow and Hetson, 1998. Removal to reservations undermined traditional tribal policing societies and the federal government imposed non-Indian policing models. Tribal police today are confronted with complex and confusing jurisdictional challenges that limit their options. The Great Plains Reservation Tribal Police Department serves as a present-day case study.

1999. Cockerham, William C. and Morris A. Forslund. “Attitudes toward the Police among White and Native American Youth.” American Indian Law Review 3, no. 2 (1975): 419–28. Wind River juveniles have encounters with the police that are five times the national average, and that influences the unfavorable attitude they have toward law officers.

1996. Barker, Michael L. and Kenneth Mullen. “CrossDeputization in Indian Country.” Police Studies: International Review of Police Development 16, no. 4 (1993): 158–66. Cross-deputization of tribal and non-tribal police has benefits, such as faster response time. Critics of this process want structure and assurance that the agreements are legal. Cross-deputization is the best way to increase tribal police authority.

2000. Ellis, Mark R. “Reservation Akicitas: The Pine Ridge Police Force, 1879–1885.” South Dakota History 29 (Fall 1999): 185–210. Older men from the Lakota military societies became the first reservation police force on Pine Ridge. The Lakota placed their military societies in this role. 2001. Feinman, Clarice. “Police Problems on the Navajo Reservation.” Police Studies: International Review of Police Development 9 (Winter 1986): 194–98. Tribal communities are claiming that U.S. law enforcement services have ignored tribal crimes. The Navajo reservation has unique law enforcement issues, and Navajos argue that increasing tribal sovereignty is the best way to solve these problems.

1997. Bryne, Edward C. “The Oneida Tribal Police: Politics and Law Enforcement.” In Native Americans, Crime, and Justice, edited by Marianne O. Nielsen and Robert A. Silverman, 114–17. Boulder, CO: Westview Press, 1996. The Wisconsin Oneida tribal police force began in 1985, and increased in size and duties as casino profits transformed the small community. The local county law enforcement did not provide assistance for the tribal police force during its early years, but the tribal police force has helped on the reservation and in the surrounding jurisdictions.

2002. Gould, Larry A. “The Impact of Working in Two Worlds and Its Effect on Navajo Police Officers.” Journal of Legal Pluralism and Unofficial Law 44 (1999): 53–71. Navajo police officers work within two competing value systems. Those who rely on arrest, which is a western police concept, are not Navajo enough for other members of their community. Other police officers face criticism for being too Navajo, yet they still rely on western police tactics.

1998. Clum, John P. “The San Carlos Apache Police.” New Mexico Historical Review 4 (July 1929): 203–19; cont. 5 (January 1930): 67–92. Agent Clum defends his decision to install a tribal police force in 1874, arguing that the Apache police enforced law and order on the reservation. He further explains how this police force was the impetus for

2003. Gould, Larry A. “Indigenous People Policing Indigenous People: The Potential Psychological and 207

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Cultural Costs.” Social Science Journal 39, no. 2 (2002): 171–88. Takes a “snowball method of sample development” to select tribal police officers for interviews. The findings suggest that the officer’s feeling of “spiritual connectedness to his/her culture is inversely related to the strictness of the enforcement of European-based laws.” 2004. Hagan, William T. Indian Police and Judges: Experiments in Acculturation and Control. New Haven, CT: Yale University Press, 1966. One of the earliest and most influential works concerned with the idea of Indian-administered western law enforcement. The earliest Indian police and the Courts of Indian Offenses served more as an acculturation tool for white powers than as representatives of Indian values and needs. Only with the creation of courts and police forces controlled by tribal councils did western legal systems begin to answer Indian concerns. 2005. Humphrey, Norman D. “Police and Tribal Warfare in Plains Indian Cultures.” Journal of Criminal Law and Criminology 33, no. 2 (1942): 147–61. Discusses police societies in plains cultures. Their main purposes were to maintain tribal access to food resources and to prevent any individual from scaring the game away from the main body of hunters. This activity served to protect tribal physical welfare, but also the societies maintained tribal order. 2006. Jones, Oakah L., Jr. “The Origins of the Navajo Indian Police, 1872–1873.” Arizona and the West 8 (Autumn 1966): 225–38. Suggests that a short-lived Navajo police force may have played a major role in inspiring the better known force established at San Carlos in 1874. The force had a significant influence on Navajo leadership, establishing reservation law and order, helping prevent warfare, and paving the way for future Navajo forces. 2007. Knepper, Paul and Michael B. Puckett. “The Historicity of Tony Hillerman’s Indian Police.” Journal of the West 34 (January 1995): 13–18. The mystery author’s books are used as a departure point to discuss the historical development of Indian police forces. First created by John Clum at San Carlos, the police were meant to serve the federal government’s assimilation efforts. But the police forces nevertheless became important examples of tribal self-governance. 2008. Luna, Eileen. “The Growth and Development of Tribal Police.” Journal of Contemporary Criminal Justice 14 (February 1998): 75–86.

Surveys the history of tribal police, relevant legislation and litigation and important policing issues. Also categorizes tribal police forces into five types: BIA-LES, PL 93-638, Tribally Funded, SelfGovernance, and State Law Enforcement Pursuant to PL 280. The Indian Self-Determination and Education Assistance Act, Indian Self-Governance Act, and “cutbacks” in BIA Law Enforcement Services, “has created an environment in which tribal governments are developing and expanding tribal law enforcement services.” 2009. Luna-Firebaugh, Eileen and Samuel Walker. “Law Enforcement and the American Indian: Challenges and Obstacles for Effective Law Enforcement.” In Native Americans and the Criminal Justice System, edited by Jeffrey Ian Ross and Larry Gold, 117–34. Boulder, CO: Paradigm Publishers, 2006. Details the challenges facing tribal law enforcement, including historical distrust of police, staffing problems, and the complicated jurisdictional issues created by the Major Crimes Act and P.L. 280. Different varieties of tribal law enforcement models are explained. Tribal police forces must be culturally compatible with their communities. 2010. MacLeod, William Christie. “Police and Punishment among Native-Americans of the Plains.” Journal of the American Institute of Criminal Law and Criminology 28 (July–August 1937): 181–201. Instead of being chaotic, historic plains tribes and political structures had effective policing powers. The traditional police organizations reflected democratic institutions. 2011. Peak, Ken. “Criminal Justice, Law, and Policy in Indian Country: A Historical Perspective.” Journal of Criminal Justice 17, no. 5 (1989): 393–407. Examines the organization of tribal police forces under U.S. supervision after the Civil War. Courts of Indian Offenses were created in 1882, and placed under the Indian agents who selected tribal judges. The result has been animosity between tribal communities and federal authorities. 2012. Skoog, Douglas M. “Taking Control: Native SelfGovernment and Native Policing.” In Native Americans, Crime, and Justice, edited by Marianne O. Nielsen and Robert A. Silverman, 118–31. Boulder, CO: Westview Press, 1996. Tribal police forces are crucial to self-governance. Skoog provides different police models that tribal governments might employ. 2013. Stratton, John. “Cops and Drunks: Police Attitudes and Actions in Dealing with Indian Drunks.” Journal of the Addictions 8, no. 4 (1973): 613–21.

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Looks at the American Southwest and the relations between white law enforcement and Indians charged for intoxication. Though focusing more on nonIndian police officers, Stratton also assesses Indian attitudes regarding the idea of law enforcement as a control for alcohol-related social problems.

109–20. Totowa, NJ: Allanheld, Osmun & Co. Publishers, Inc., 1982. Examines contemporary reservation law and order and notes the absence of a high number of nonIndians committing crimes that requires tribal jurisdiction over non-Indians.

2014. Tate, Michael L. “John P. Clum and the Origins of an Apache Constabulary, 1874–1877.” American Indian Quarterly 3 (Summer 1977): 99–120. The San Carlos Apaches who joined Agent John Clum’s Indian police force cannot be evaluated in simple black or white terms. Apaches preferred their own as police and judges. This makes the role of tribal police more complex than describing them as sellouts or defenders of tribal culture. They were agents of acculturation who sometimes preserved more than was lost.

2018. Wachtel, David. “The Navajo Police Officer: An Analysis of Their Traditionality and Assimilation.” Quarterly Journal of Ideology 11, no. 4 (1987): 71–82. Focuses on the assimilation of Navajo police officers by western legal standards.

2015. Wachtel, David. “The Effects of Traditionalism on the Navajo Police Officer.” Police Studies 6, no. 3 (1983): 57–62. Studies the influence of traditional values on the decision-making process of Navajo tribal police. Wachtel finds that discretionary behavior is influenced by both external and internal factors. The external are manpower restrictions and budgets; the enactment of laws by legislators not familiar with the actions needed to enforce them; judicial interpretations of criminal arrest procedures; and community perceptions of what priorities should be set. 2016. Wachtel, David. “An Historical Look at BIA Police on the Reservations.” American Indian Journal of the Institute for the Development of Indian Law 6 (May 1980): 13–18. Tribal and non-tribal police officers have always defined their roles differently. The former is a community protector and handles cases differently if the offender is Indian or non-Indian. 2017. Wachtel, David. “Indian Law Enforcement.” In Indians and Criminal Justice, edited by Laurence French,

2019. Wakeling, Stewart, Miriam Jorgensen, Susan Michaelson, and Manley Begay. Policing on American Indian Reservations, A Report to the National Institute of Justice, Department of Justice, July 2001. More than 200 law enforcement offices work in Indian Country. One factor for successful law enforcement is tribal control over tribal institutions and the second is the cultural match between the community and the police force. 2020. Weil, Richard H. “The Loss of Lands Inside Indian Reservations.” In A Cultural Geography of North American Indians, edited by Thomas E. Ross and Tyrel G. Moore, 149–71. Boulder, CO: Westview Press, 1987. Studies the effect of land fragmentation on law enforcement at Red Lake, Rosebud and SissetonWahpeton. Chaotic geography threatens tribal sovereignty and law enforcement is particularly sensitive to geography because of issues of jurisdiction. 2021. Yazzie, Alfred. Navajo Police. Rough Rock, AZ: Navajo Curriculum Center, Rough Rock Demonstration School, 1980. Brief personal and historical account of the Navajo police force by a former officer who describes the relationship between the officers’ traditional concerns and their strong commitment to the ideals of the modern police force.

Chapter 24 Criminal Justice and Prisoners’ Rights

2022. “AILTP Conference on the Administration of Justice on Indian Reservations.” American Indian Journal of the Institute for the Development of Indian Law 4 (September 1978): 46–51. This discussion between the attorneys and tribal judges at the American Indian Lawyer Training Program focused on changes that Oliphant brought to reservation criminal justice.

2026. Archambeault, William G. “Soar Like an Eagle, Dive Like a Loon: Human Diversity and Social Justice in the Native American Prison Experience.” In Convict Criminology, edited by Jeffrey Ian Ross and Stephen C. Richards, 287–308. Belmont, CA: Wadsworth/ Thomson, 2003. Stresses diversity among Native American prisoners and describes how their status as a U.S. government-certified Indian, state-only-certified Indian, or no-status Indian affects their ability to exercise their First Amendment rights. There is no typical Native American prisoner experience.

2023. Alvarez, Alexander and Ronet Bachman. “American Indian and Sentencing Disparity: An Arizona Test.” In Race, Crime, and Justice, a Reader, edited by Shaun L. Gabbidon and Helen Taylor Greene, 319–32. New York: Routledge, 2005. Finds that Indians received longer sentences for robbery and burglary, but that Caucasians received longer sentences for homicide. This may be because Native lives are undervalued in cases of intra-racial murder, but the property crimes are often interracial.

2027. Asher, Brad. “A Shaman-killing Case on Puget Sound, 1873–1874: American Law and Salish Culture.” Pacific Northwest Quarterly 86 (Winter 1994–1995): 17–24. In 1874, a mixed-race Indian killed a shaman who he believed had caused his wife to become ill. American law did not recognize the traditional right for kin to slay the victims of shamanic attacks. Yet, the assailant was acquitted by an all-white jury. Not all whites wished to use law to oppress Indians and not all Indians agreed with the acquittal in this case.

2024. American Indian Lawyer Training Program. Justice in Indian Country. Oakland, CA: American Indian Lawyer Training Program, 1980. The problems of administering justice in Indian Country have not decreased. Such problems include inadequate funding, lack of training, low salaries, poor BIA accountability, and problems arising from Oliphant.

2028. Asher, Brad. “‘Their Own Domestic Difficulties’: Intra-Indian Crime and White Law in Western Washington Territory, 1873–1889.” Western Historical Quarterly 27 (Summer 1996): 189–209. Case files reveal that many justice proceedings were initiated by Indians. This suggests “some Indians viewed American law as a potentially viable alternative to Native dispute resolution mechanisms, which were substantially weakened by the social and political changes wrought by white settlement.”

2025. Archambeault, William G. “Imprisonment and American Indian Medicine Ways: A Comparative Analysis of Conflicting Cultural Beliefs, Values, and Practices.” In Native Americans and the Criminal Justice System, edited by Jeffrey Ian Ross and Larry Gold, 143–60. Boulder, CO: Paradigm Publishers, 2006. Even though some Native prisoners have been allowed access to their medicine people, the prison environment conflicts with Native healing practices. Prison administrators and medicine people should seek compromise.

2029. Bachman, Ronet. Death and Violence on the Reservation: Homicide, Family Violence, and Suicide in American Indian Populations. New York: Auburn House, 1992. 211

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Sociological study of the causes of violence, stressing the importance of feelings of powerlessness and economic deprivation. Bachman briefly comments on the importance of tribal sovereignty and self-determination. 2030. Bachman, Ronet, Alexander Alvarez, and Craig Perkins. “Discriminatory Imposition of the Law: Does It Affect Sentencing Outcomes for American Indians?” In Native Americans, Crime, and Justice, edited by Marianne O. Nielsen and Robert A. Silverman, 197–208. Boulder, CO: Westview Press, 1996. Native people are not only overrepresented in the legal system, they are also discriminated against. More work needs to be done at different stages of the judicial process to determine the full extent of discrimination in the legal system. 2031. Bond-Maupin, Lisa. “Self-Determination?: Juvenile Justice in One American Indian Community.” Journal of Contemporary Criminal Justice 14, no. 1 (1998): 26–41. Examines an unidentified tribal community’s decision to enter into a 638 contract and create a juvenile detention facility. Though it is a self-determination project, the community has little understanding of the role of the center, making this a poor project for a 638 contract. 2032. Bond-Maupin, Lisa, Carol Chiago, and M. A. Bortner. “Jailing of American Indian Adolescents.” Crime, Law, and Social Change 23 (1995): 1–16. There is a maze of power relationships that Indian adolescents face before trial. Tribal youth begin in the system conforming to the national trend, which has the highest jailing rate before trial in the Western World. Then differences emerge between tribal youth and youth nationwide. Tribal youth have a higher detention, untrained BIA authorities oversee tribal youth, and there is an absence of alternatives to detention for tribal youth. 2033. Bracey, Dorothy H. “Criminalizing Culture: An Anthropologist Looks at Native Americans and the U.S. Legal System.” In Native Americans and the Criminal Justice System, edited by Jeffrey Ian Ross and Larry Gold, 35–50. Boulder, CO: Paradigm Publishers, 2006. The U.S. has denied the legitimacy of Native American institutions and “criminalized important aspects of Native American culture,” thus weakening cultural forces that limit crime. Examples are dancing, peyote, violation of sacred sites, spiritual use of eagle feathers, and policies undermining Native families. 2034. Braunstein, Richard and Steve Feimer. “South Dakota Criminal Justice: A Study of Racial Dispari-

ties.” South Dakota Law Review 48, no. 2 (2002–2003): 171–207. The U.S. Commission on Civil Rights published a report on South Dakota’s treatment of tribal members in the state’s legal system based on anecdotal evidence. This study discovered that racial disparities included representation, sentence length, and time served. 2035. Braunstein, Richard and Amy Schweinle. “Explaining Race Disparities in South Dakota Sentencing and Incarceration.” South Dakota Law Review 50, no. 3 (2005): 440–74. Follow-up to a 2003 study of race and prisons in South Dakota that concludes legal and socioeconomic forces created racial disparities in state sentencing. 2036. Burns, Larry Alan. “Criminal Jurisdiction: Double Jeopardy in Indian Country.” American Indian Law Review 6, no. 2 (1978): 395–402. The maze of laws affecting criminal jurisdiction on reservations means that a tribal defendant may face double jeopardy. Congress can pass special legislation to permit flexibility in determining whether the tribal or federal court should prosecute and thereby avoid double jeopardy. 2037. Bynum, Tim. “Parole Decision-Making and Native Americans,” in Race, Crime and Criminal Justice, ed. R. L. McNeely and Carl E. Pope, 75–87. Beverly Hills, CA: Sage, 1981. Native prisoners are more severely sanctioned by parole boards than are non-Natives. Cumulative discrimination may be the cause. 2038. Bynum, Tim, and R. Paternoster. “Discrimination Revisited.” In Native Americans, Crime, and Justice, edited by Marianne O. Nielsen and Robert A. Silverman, 228–38. Boulder, CO: Westview Press, 1996. During “backstage legal decisions,” the system discriminates more against tribal people than white prisoners. Tribal inmates often serve shorter sentences than whites since their crimes are property related or against other native peoples. 2039. Carlson, Sarah-Eva Ellen. “They Tell Their Story: The Dakota Internment at Camp McClellan in Davenport, 1862–1866.” Annals of Iowa 63 (Summer 2004): 251–78. After the 1862 Santee uprising, the federal government wrongfully interred hundreds of Dakotas. Carlson uses first-hand Dakota accounts to tell the story of their internment, revealing injustices done to them and their resilience. 2040. Carrico, Richard L. “Spanish Crime and Punishment: The Native American Experience in Colonial San

Criminal Justice and Prisoners’ Rights

Diego.” Western Legal History 3 (Winter/Spring 1990): 21–33. In San Diego, Carrilo circumvented Spanish law when he killed tribal villagers and burned their homes. Even if the laws were followed, Spain’s laws were cruel and inhumane. 2041. Carroll, Jane Lamm. “Native Americans and Criminal Justice on the Minnesota Frontier.” Minnesota History 55 (Summer 1996): 46–58. The relationship between criminal justice and Native Americans on the frontier was more complex than is often assumed, with some tribal people receiving fair treatment and others not. During the 1850s, local officials often left it to the federal government to handle crimes involving Indian victims. When victims were white, local authorities preferred to try Indian suspects, and race played an important role in how such cases were decided. 2042. Chomsky, Carol. “The United States–Dakota War Trials: A Study in Military Justice.” Stanford Law Review 43 (November 1990): 13–98. Analyzes the trials following the 1862 Minnesota War, including the problematic outcome of this hastily created military court. The laws of war should not have applied to the Dakota, who were sovereign. 2043. Clayton, William F. “Indian Jurisdiction and Related Double Jeopardy Questions.” South Dakota Law Review 17 (Spring 1971): 341–49. Double jeopardy occurs when tribal and federal courts collide over jurisdiction and create a Fifth Amendment constitutional issue. Different courts have reached different conclusions including a separate sovereignty theory. 2044. Clow, Richmond L. “Justice in Transition: The Murder Trial of Straight Head and Scares the Hawk.” South Dakota History 27 (Fall 1997): 133–55. These two men were tribal police on the Cheyenne River Reservation. They killed in self-defense a white man married to a Lakota woman and were placed on trial for murder. This revealed the prejudices that worked against tribal police and tribal courts. 2045. Clow, Richmond L. “The Anatomy of a Lakota Shooting: Crow Dog and Spotted Tail, 1879–1881.” South Dakota History 28 (Winter 1998): 209–27. Examines the causes for the dispute between these two men and reveals that tribal law was upheld over federal law when a tribal member committed a crime against another member. 2046. Colt, Peter Thrush and Robert H. Keller, Jr. “‘I See What I Have Done’: The Life and Murder Trial of

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Xwelas, a S’Klallam Woman.” Western Historical Quarterly 26 (Summer 1995): 169–83. Discusses the trial of a S’Klallam woman accused of murdering her abusive white husband on Orcas Island in Washington Territory. A white jury found her guilty of manslaughter, and she was sentenced to two years imprisonment. The white jury may have decided against the death penalty because many of them were married to Indian women; they wanted stable race relations; the victim was poor; or they viewed Xwelas as mentally incompetent. 2047. “Constitutional Law—Equal Protection of the Laws—Federal Statute Imposing Less Severe Penalty Upon American Indian Who Rapes an Indian Woman Than Upon Other Rapists Is Constitutional.” Harvard Law Review 82 (January 1969): 697–702. The Ninth Circuit Court of Appeals declared in Gray v. United States that as a federal trustee the federal government can support different sentences for the same crime based on where the crime was committed and who committed it. 2048. Crawford, Richard W. “The White Man’s Justice: Native Americans and the Judicial System of San Diego County, 1870–1890.” Western Legal History 5, no. 1 (Winter/Spring 1992): 69–81. Examines San Diego County’s treatment of Native Americans in the local legal system where they found discrimination instead of justice. 2049. Creel, Von Russell. “Capital Punishment and the United States Court for the Indian Territory.” Chronicles of Oklahoma 81 (Summer 2003): 172–205. For more than a decade, beginning in 1889, this court exercised capital punishment jurisdiction. Nine executions were carried out in that time. Von Russell offers details on these cases and biographical information about judges. 2050. Crenshaw, Ronald W. “Jury Composition—The Purposeful Inclusion of American Indians.” South Dakota Law Review 16 (Winter 1971): 214–21. In 1969, tribal plaintiffs, in Lone Warrior v. Peacock, initiated a class action suit in the U.S. District Court of South Dakota against Mellette County officials, asking for relief under civil rights statutes to prevent prosecutors from eliminating tribal members from jury lists. The lower federal court ruled in favor of the plaintiffs. 2051. Cross, John. “The Economics of Indian Crime.” In Indians and Criminal Justice, edited by Laurence French, 53–63. Totowa, NJ: Allanheld, Osmun & Co., 1982. State reports to the U.S. Commission on Civil Rights have provided insights into tribal criminality,

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revealing prejudice and unequal treatment in state penal systems. Crime occurs because of racism and poverty. 2052. Daugheerty, Danelle J. “Waiting for Study III: Explaining Race Disparities in South Dakota Sentencing and Incarceration.” South Dakota Law Review 50, no. 3 (2005): 485–93. Historical forces created the legal and socioeconomic gaps between South Dakota’s tribal and nontribal populations. Unfortunately, this creates an image of a double standard of justice in the state. 2053. Dill, John C. “Criminal Procedure: Jury Prejudice after Wounded Knee—The Sufficiency of Federal Voir Dire.” American Indian Law Review 2 (Winter 1974): 81–88. Discusses the importance of voir dire examinations to remove prejudicial jurors. This became a very important question as the Wounded Knee trials began. 2054. Doerr, Brian M. “The Massacre at Deer Lick Creek, Madison County, Indiana, 1824.” Indiana Magazine of History 93 (March 1997): 19–47. Account of the events leading up to and trial following the murder of Seneca Indians by non-Indians. This case was “one of the rare times that Indians obtained justice in a grievance against white men in the Northwest Territory.” 2055. Donaldson, Laura E. “Speaking Out: Religious Rights and Imprisoned American Indian Women.” Journal of Feminist Studies in Religion 17 (Fall 2001): 57–59. Describes the denial of religious rights to female Native prisoners at the Central Oklahoma Correctional Facility and calls for scholars and activist to raise their voices. 2056. Doty, Sharon Womack. “United States v. Renville: The Unsettling Condition of the Settled Law Applying the Assimilated Crimes Act to Indians.” American Indian Law Review 16, no. 1 (1991): 247–66. The Major Crimes Act, the General Crimes Act, and the Assimilative Crimes Act all control criminal prosecution of Indians and non-Indians for criminal offenses committed in Indian Country. Based on these acts, the Eighth Circuit Court of Appeals has misapplied these laws and continues to do so. 2057. “Double Jeopardy and Successive Prosecutions by Tribal and Federal Courts.” Arizona Law Review 19, no. 3 (1977): 638–52. In United States v. Wheeler, the district judge dismissed charges against Anthony Wheeler from a previous conviction in Navajo Tribal Court for crimes committed during the same incident, citing a viola-

tion of double jeopardy protection. The Ninth Circuit Court of Appeals upheld the district court’s dismissal, but ignored the fact that the Navajo Tribe was a separate sovereign. If the court had examined the sovereignty issue, prosecution would have been permitted under the “dual sovereignty” provision. 2058. Drake, James. “Symbol of a Failed Strategy: The Sassamon Trial, Political Culture, and the Outbreak of King Philip’s War.” American Indian Culture and Research Journal 19, no. 2 (1995): 111–41. Previous authors correctly argued that the Sassamon trial helped trigger King Philip’s War, but failed to understand how Native Americans perceived the trial. Given that Indians were routinely mistreated by the colonial justice system, perceived legal unfairness was not the spark. Instead, the execution of three nonpraying Indians for the alleged murder of the praying Indian John Sassamon signaled the failure of the Native Americans’ efforts to gain protection by entering into relationships of mutual obligation with the English. 2059. Dumont, James. “Justice and Native Peoples.” In Native Americans, Crime, and Justice, edited by Marianne O. Nielsen and Robert A. Silverman, 20–33. Boulder, CO: Westview Press, 1996. European colonization has created two systems of justice in North America, with the European system holding culturally different values than tribal systems. 2060. Easton, Stephens D. “Native American Crime Victims Deserve Justice: A Response to Jensen and Rosenquist.” North Dakota Law Review 69, no. 3 (1993): 939–67. The problem is that different prosecutors have the same authority to pursue both felonies and misdemeanors. Changing the system by separation of duties might help, though it would attack tribal sovereignty. 2061. Edmunds, R. David. “Justice on a Changing Frontier: Deer Lick Creek, 1824–1825.” Indiana Magazine of History 93 (March 1997): 48–52. The execution of whites for killing nine Indians in Indiana in 1824 was an “extremely unusual” resolution to the common tragedy of white-against-Indian homicide. 2062. Epp, Todd D. “The State of Kansas v. Wild Hog, et. al.” Kansas History 5 (Summer 1982): 139–46. Analyzes the 1879 first-degree murder trial of Wild Hog and other Northern Cheyennes for killing white settlers in western Kansas during their flight from Indian Territory. The charges were eventually dismissed. The defendants were treated justly and granted the proper legal safeguards.

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2063. Evans, William Edward. “The Garra Uprising: Conflict between San Diego Indians and Settlers in 1851.” California Historical Society Quarterly 45 (December 1966): 339–49. An effort to impose a state property tax on Indians of Agua Caliente, without giving them political representation, prompted Cupeños and Yumas to undertake the Garra uprising, culminating in the conviction and execution of the Indian leaders. 2064. “Fifth Amendment-Double Jeopardy and the Doctrine of Dual Sovereignty.” Journal of Criminal Law and Criminology 69 (Winter 1978): 597–603. The Supreme Court, in the fall of 1977, ruled on Wheeler and Rinaldi. The former declared tribes sovereign, and therefore Anthony Robert Wheeler did not encounter double jeopardy when a Navajo tribal court and a federal court both convicted him for an offense against a minor. In Rinaldi, the court left the doctrine of duel sovereignty intact that helped to decide Wheeler. 2065. Foley, William E. “Different Notions of Justice: The Case of the 1808 St. Louis Murder Trials.” Gateway Heritage 9 (Winter 1988–1989): 2–13. The 1808 trials of Sacs and Ioways accused of murdering whites in the Louisiana Territory exemplify contrasting cultural values. The Indians escaped capital punishment, in these cases but their community’s were dissatisfied with the prolonged process. 2066. Folsom, R. D. “American Indians Imprisoned in the Oklahoma Penitentiary: ‘A Punishment More Primitive Than Torture.’” American Indian Law Review 2 (Summer 1974): 85–109. The Oklahoma penal system refused to recognize the plight of imprisoned tribal members and their cultural needs. The IHS and BIA, along with the Oklahoma penal system, need to improve their services. 2067. Foreman, Grant, ed. Indian Justice: A Cherokee Murder Trial at Tahlequah in 1840, as Reported by John Howard Payne. Oklahoma City, OK: Harlow, 1934. Foreman writes an introduction to Payne’s journalistic account of the Cherokee court trial of Archilla Smith, a Cherokee accused of murder. Foreman considers the case significant as an example of Indians attempting to try a case according to white man’s law. 2068. Foreman, Grant. “The Indian and the Law.” The Journal: Oklahoma Bar Association, 17, no. 4 (1946): 82–91. The last section focuses on the trial of Archilla Smith for murdering John McIntosh. 2069. Foster, Doug. “Imperfect Justice: The Modoc War Crimes Trial of 1873.” Oregon Historical Quarterly 100 (Fall 1999): 246–87.

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The trial of six Modocs, including Captain Jack, for the murder of Gen. Edward R. S. Canby serves as the only case in which American Indians were tried for war crimes. The Modocs were treated more harshly than were whites accused of killing Indians, had biased judges, were denied trial in civil courts, and did not receive legal counsel. 2070. Free, Kalyn Cherie. “Address: Justice in Indian Country.” American Indian Law Review 20, no. 2 (1995–1996): 509–16. Describes justice issues in Indian Country during the Clinton administration. Clinton reaffirmed the policy of self-determination. 2071. French, Laurence. “An Analysis of Contemporary Indian Justice and Correctional Treatment.” Federal Probation 44, no. 3 (1980): 19–23. Discusses the problems facing tribal inmates. French discusses the Swift Bird prison survival school that strives to teach the inmates their cultural heritage. 2072. French, Laurence. “Contemporary Indian Justice and Correctional Treatment.” In Indians and Criminal Justice, edited by Laurence French, 179–86. Totowa, NJ: Allanheld, Osmun & Co., 1982. Tribally operated treatment centers for tribal offenders would be better than other forms of correctional facilities. The Swift Bird Correctional Facility at Cheyenne River serves as a positive model. 2073. French, Laurence., ed. Indians and Criminal Justice. Totowa, NJ: Allanheld, Osmun & Co., 1982. In tracing the diminishment of tribal criminal jurisdiction, this book of essays is divided into three parts: Indian socio-legal issues, Indian crime and justice, and Indian treatment issues. 2074. French, Laurence. Native American Justice. Chicago, IL: Burnham, 2003. A series of inter-connected essays covering a variety of justice-related topics. The first section surveys federal Indian policies aimed at cultural genocide. ICRA and P.L. 93-638 are analyzed in detail in the second chapter. French then describes the Cherokee transition from traditional justice based on blood vengeance to the Euro-American form of justice. In chapter four, French offers a preface to an account by Little Rock Reed who endeavored to win tribal religious freedoms for Native prisoners. The work then turns to tribal justice systems, including courts and police forces. The Navajo justice system is described in detail. 2075. French, Laurence. “Native American Prison Survival Schools.” In Indians and Criminal Justice, edited by

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Laurence French, 187–95. Totowa, NJ: Allanheld, Osmun & Co., 1982. Following NARF’s first prison discrimination case, there was discussion of creating a prison survival school. This idea provides a hopeful model if it is operated in conjunction with an existing prison system. 2076. Garrow, Carrie E. and Sarah Deer. Tribal Criminal Law and Procedure. Walnut Creek, CA: AltaMira, 2004. This textbook aims to aid tribal courts and legal departments. It is broken into sections comparing traditional Native criminal law to Anglo-American criminal law, as well as discussing jurisdictional issues, criminal prosecution procedures, and sanctioning and sentencing. 2077. Gave, Howard B. “Juries—Voir Dire—Due Process Requires Inquiry into a Prospective Juror’s Possible Prejudice toward Indians.” Journal of Urban Law 53 (August 1975): 119–33. Countering jury bias is difficult when a tribal member is on trial. Attorney voir dire has been restricted due to the extensive time that it takes to question potential jurors, but the court must meet the “essential demands of fairness.” 2078. Ghere, David L. and Alvin H. Morrison. “Searching for Justice on the Maine Frontier: Legal Concepts, Treaties and the 1749 Wiscaseet Incident.” American Indian Quarterly 25 (Spring 2001): 378–99. In 1749, whites killed one Abenaki and wounded several more. Few Native Americans committed murder based on their view of a blood feud, but in 1749, the settlers did not fear the Natve Americans and the court’s acquittal of two whites was an opportunity for Maine to extend it legal arm over the Abenaki. 2079. Goldberg, Carole and Duane Champagne. “A Review of Explaining Race Disparities in South Dakota Sentencing and Incarceration,” South Dakota Law Review 50, no. 3 (2005): 475–84. Generally supportive of the racial incarceration study (by Braunstein and Schweinle), but the issue of race cannot be dispelled. The more tribal people that are swept into the state system because of reservation diminishment, the more carefully the situation needs to be studied. 2080. Green, Donald E. “The Contextual Nature of American Indian Criminality.” American Indian Culture and Research Journal 17, no. 2 (1993): 99–119. Assesses the body of literature regarding Native American criminality, adds some new data, and suggests avenues for future research. Stresses the importance of sociological context, cultural and situation

differences between tribal communities, and changing definitions of “Indianness.” 2081. Grobsmith, Elizabeth. “American Indians in Prison.” In Native Americans, Crime, and Justice, edited by Marianne O. Nielsen and Robert A. Silverman, 224–27. Boulder, CO: Westview Press, 1996. Incarcerated Native Americans in Nebraska prisons have become a model for tribal inmates asserting their religious freedoms. 2082. Grobsmith, Elizabeth. “The Future for Native American Prisoners.” In Native Americans, Crime, and Justice, edited by Marianne O. Nielsen and Robert A. Silverman, 278–86. Boulder, CO: Westview Press, 1996. Describes potential avenues that tribal people and the parole and prison officials may take to make the transition out of prison successful. 2083. Grobsmith, Elizabeth. Indians in Prison: Incarcerated Native Americans in Nebraska. Lincoln: University of Nebraska Press, 1994. Studies Native inmate experiences and focuses on the connection between alcohol and high incarceration and recidivist rates, failed prison rehabilitation efforts, and successful legal efforts to secure religious rights. 2084. Gunther, Vanessa. “Indians and the Criminal Justice System in San Bernardino and San Diego Counties, 1850–1900.” Journal of the West 39 (Fall 2000): 26–34. Surveys trial court records, newspapers and other sources in a discussion of the treatment of Indian people in Southern California courts. A picture emerges of unequal justice for Indians as compared to non-Indians. 2085. Gurich, Noma D. “Due Process: Tom v. Sutton— Right to Appointed Counsel for an Indigent Indian in Tribal Court Criminal Proceedings.” American Indian Law Review 5, no. 2 (1977): 381–92. The Constitution provides that a defendant has a right to counsel, but until the passage of ICRA, that was not always an option. Though slow to take hold, that requirement was met in tribal courts. 2086. Hall, Edwin L. and Albert A. Simkus. “Inequality in the Types of Sentences Received by Native Americans and Whites.” Criminology 13 (August 1975): 199–222. Tribal defendants are at an immediate disadvantage when they enter the white criminal system. They have to fight the stereotypes of being Indian. As a result, they serve full sentences while white offenders often get early release. 2087. Hall, Gilbert. An Introduction to Criminal Jurisdiction in Indian Country. Oakland CA: American Indian Lawyer Training Program, 1981. A textbook for legal personnel.

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2088. Harring, Sidney. “Native American Crime in the United States.” In Indians and Criminal Justice, edited by Laurence French, 93–108. Totowa, NJ: Allanheld, Osmun & Co., 1982. Examines crime patterns of tribal Americans, most of which are alcohol related. There are more crime arrests on the reservation than in urban centers. Harring discusses theoretical causes of tribal crime by focusing on cultural conflict, poverty, depressed aggression, and the reservation system. 2089. Harring, Sidney. “Red Lilac of the Cayugas: Traditional Indian Law and Culture Conflict in a Witchcraft Trial in Buffalo, New York, 1930.” New York History 73 (January 1992): 65–94. Two Cayuga women were prosecuted for murdering a white woman through witchery in the early 1930s and were acquitted. The trial became intertwined with opposition to the Snell Bill and the Iroquois were able to demonstrate why federal supervision of Indian affairs should supersede New York State’s. 2090. Hasian, Marouf, Jr. “Cultural Amnesia and Legal Rhetoric: Remembering the 1862 United States– Dakota War and the Need for Military Commissions.” American Indian Culture and Research Journal 27, no. 1 (2003): 91–117. Whereas some scholars question the legality of military tribunals, Hasian points that Lincoln’s intervention in 1862 led to fewer hangings than would have occurred if local authorities had held final say. 2091. Hietter, Paul T. “A Surprising Amount of Justice: The Experience of Mexican and Racial Minority Defendants Charged with Serious Crimes in Arizona, 1865–1920.” Pacific Historical Review 70 (May 2001): 183–219. Statistical analysis that suggests that minority experiences with the Arizona justice system were complex, with Mexican, Chinese, and American Indian defendants receiving more equitable treatment than is often assumed. American Indians, however, were more likely to be charged with serious crimes than were other minorities. 2092. Hogan, Lawrence J. The Osage Indian Murders: The True Story of a Multiple Murder Plot to Acquire the Estates of Wealthy Osage Tribe Members. Frederick, MD: Amlex, 1998. Story of an FBI investigation in the 1920s of the murder of Osage women by non-Indians to gain access to tribal oil wealth. 2093. Hutton, C., F. Pommersheim, and S. Feimer. “‘I Fought the Law and the Law Won.’” In Native Amer-

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icans, Crime, and Justice, edited by Marianne O. Nielsen and Robert A. Silverman, 209–20. Boulder, CO: Westview Press, 1996. Examines the sentencing disparity between white and Native women in South Dakota Penitentiary from 1980–1988. There was little discrimination in sentencing, but Native women may encounter discrimination during other phases of the criminal process. 2094. “Indians—Federal Court Has Jurisdiction to Issue Writ of Habeas Corpus on Behalf of Indian Convicted by Tribal Court.” Harvard Law Review 79 (December 1965): 436–39. Madeline Colliflower, a Gros Ventre from Fort Belknap, received a tribal court order to remove her cattle from another’s land. She claimed her Fifth Amendment due process rights were violated in tribal court because she had received no counsel nor confronted her accuser. The trial federal court dismissed, but on appeal, the Ninth Circuit reversed, since the reservation functions in part as federal property and must follow constitutional protections. 2095. Jensen, Jon J. and Kerry S. Rosenquist. “Satisfaction of a Compelling Governmental Interest or Simply Two Convictions for the Price of One?” North Dakota Law Review 69, no. 3 (1993): 915–38. After prosecution in tribal court, a defendant can be prosecuted in a federal court. Federal authorities “should refrain from using their prosecutorial power where there is no longer an existing compelling and unvindicated governmental interest.” 2096. Keller, Charles. “Prison Reform and Indians.” Indian Historian 9 (Winter 1976): 34–38. The nineteenth-century prison reform movement and reservation restructuring provided the need for cheap labor. In both cases, clients were to be carefully supervised and reformed for the purpose of increasing the labor force. 2097. Kim, Stephanie J. “Sentencing and Cultural Differences: Banishment of the American Indian Robbers.” John Marshall Law Review 29 (Fall 1995): 239–67. The Washington State judge’s decision to transfer two Tlingit tribal youths to tribal court for sentencing was judicially wrong. The tribal court’s banishment sentence was unconstitutional and outside the “Equal Protection Clause and the Cruel and Unusual Punishment Clause” and ICRA. The state court acted improperly and should have sentenced the youths. The Court of Appeals was wrong to defend the tribal court. 2098. King, James T. “‘A Better Way’: General George Crook and the Ponca Indians.” Nebraska History 50 (Fall 1969): 239–56.

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In 1879, a U.S. District Judge ordered that Crook must release a group of Ponca Indians that had been illegally arrested. King views Crook sympathetically, arguing that he not only helped arrange the case “against himself,” but also supported “civilian efforts to rectify the injustices suffered by the Ponca.” 2099. Koehler, Lyle. “Red-White Power Relations and Justice in the Courts of Seventeenth-Century New England.” American Indian Culture and Research Journal 3, no. 4 (1979): 1–31. As whites gained greater control over Native Americans, legal decisions were more likely to be unfair, racist, and ethnocentric. A wide variety of cases from throughout New England are discussed; Rhode Island is shown to be exceptional in its more equitable legal treatment of Natives. 2100. Lauer, Alisa Cook. “Dispelling the Constitutional Creation Myth of Tribal Sovereignty, United States v. Weaselhead.” Nebraska Law Review 78, no. 1 (1999): 162–204. Robert Lee Weaselhead was convicted in the Nebraska Winnebago tribal court for sexual assault. A federal grand jury indicted him on a similar charge and he pleaded not guilty, claiming double jeopardy. The federal trial court cited the Fifth Amendment barring further prosecution. 2101. Laurence, Robert A. “Dominant-Society Law and Tribal Court Adjudication.” New Mexico Law Review 25 (Winter 1995): 1–22. Challenges a decision in Wheeler that double jeopardy did not exist even though the Navajo court and U.S. court both punished Wheeler for the same crime. A tribal court found him guilty of contributing to the delinquency of a minor and a federal court found him guilty of statutory rape. Wheeler appealed and, in 1978, the U.S. Supreme Court ruled no double jeopardy occurred. The high court ruled that tribes possess inherent power that is not dependent on the U.S., therefore dual prosecution by different sovereigns is permissible. 2102. Lee, Nella. “Native American Crime: The Invisible Tragedy.” Wicazo Sa Review 9 (Spring 1993): 38–46. Examines 1985 crime rates on reservations with the understanding that data is limited. The study reveals low arrest rates for many personal and violent crimes due to both parties knowing each other. 2103. LeMaire, Kerstin G. and Mark D. Tallan. “Issues Involving Extradition and Their Impact on Tribal Sovereignty.” University of Detroit Mercy Law Review 76 (Spring 1999): 803–20. To ensure community protection and tribal sovereignty, tribes need to draft thorough extradition

agreements as part of their tribal codes and use these agreements in full faith and credit with other sovereigns. 2104. Lester, David. Crime and the Native American. Springfield, IL: Charles C Thomas, 1999. Examines Indian crime rates, criminal behavior theories, and criminal justice to determine the validity of the commonly held beliefs that American Indians have a higher crime rate and are treated unfairly in the justice system. Taking into account age and socioeconomic factors, Indian crime rates are actually low, and judicial mistreatment seems not to be common. 2105. Littlefield, Daniel F. and Lonnie E. Underhill. “Ned Christie and His One-Man Fight with the United States Marshals.” Journal of Ethnic Studies 1 (Winter 1974): 3–15. Ned Christie, a Cherokee was found guilty of murdering a U.S. Marshal. It was never demonstrated that he was the killer, but with so many crimes tied to his name, he was eventually found guilty and executed at Fort Smith. 2106. Loy, Debra K. “Criminal Law: Equal Protection and Unequal Punishment under the Major Crimes Act— United States v. Cleveland.” American Indian Law Review 3, no. 1 (1975): 103–8. Congress amended the Major Crimes Act in 1966 and 1968 so that tribal defendants did not receive favorable treatment. United States v. Cleveland marked the equalization between tribal and non-tribal persons in setting penalties and standards. 2107. Luebben, Ralph. “Anglo Law and Navaho Behavior.” Kiva 29, no. 3 (1964): 60–75. Since World War II, Navajos in “Carbonate City” Colorado came into contact with off-reservation law enforcement. A higher percentage of Navajos were arrested for crimes than Anglos; traditional Navajo patterns of social control tended to disintegrate; and some Navajos tried to manipulate other Navajos through the American legal system. 2108. McKanna, Clare V., Jr. “Four Hundred Dollars Worth of Justice.” Journal of San Diego History 33 (Fall 1987): 197–212. Though unable to determine Indian Joe’s guilt or innocence, no ethnic indigent would have had a fair trial, or have been represented by a competent attorney. 2109. McKanna, Clare V., Jr. “Life Hangs in the Balance: The U.S. Supreme Court’s Review of Ex Parte GonShay-Ee.” Western Legal History 3 (Summer/Fall 1990): 197–211.

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Eighty-four Apaches were tried for murder in the Southwest from 1880 to 1912. Three prominent cases reveal the problems and successes the Native Americans had in federal court. The federal authorities failed to understand Apache justice and brought them into the federal system. 2110. McKanna, Clare V., Jr. “Murderers All: The Treatment of Indian Defendants in Arizona Territory, 1880–1912.” American Indian Quarterly 17 (Summer 1993): 359–69. A statistical study of multiple Arizona counties revealing widespread discrimination against American Indian defendants because of severe racial prejudice. 2111. McKanna, Clare V., Jr. “The Treatment of Indian Murderers in San Diego County, 1850–1900.” Journal of San Diego History 36 (Winter 1990): 65–77. Examining cases that made it to indictment in San Diego County reflects a low tribal indictment compared to other racial groups. Conviction rates were significantly higher for tribal people, reflecting a bias pattern. 2112. McKanna, Clare V., Jr. The Trial of “Indian Joe”: Race and Justice in the Nineteenth-Century West. Lincoln: University of Nebraska Press, 2003. An Indian man named José Gabriel was accused of committing a double homicide in San Diego County in 1892. His trial exemplifies the injustice California Natives commonly received, in part because they were denied the right to serve as jurors. 2113. McKanna, Clare V., Jr. White Justice in Arizona: Apache Murder Trials in the Nineteenth Century. Lubbock: Texas Tech University Press, 2005. Analyzes four late nineteenth-century cases involving Apache defendants accused of killing whites and finds that the Apaches were not given fair treatment in the non-Indian justice system. Non-Indian judges and court-appointed attorneys did not serve Apache defendants well, the trials were often too short, and the defendants often could not speak English.

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1881, to the creation of a tribal court under an IRA constitution in 1936. 2116. MacMeekin, Daniel H. “”Red, White, and Gray: Equal Protection and the American Indian.” Stanford Law Review 21 (May 1969): 1236–48. In Gray v. United States in 1968, two tribal defendants were accused of raping a non-Indian woman. Because two different sets of laws governed rapes of Indian women and white women, the defense challenged that the punishment was racially based. The Ninth Circuit Court of Appeals ruled that Congress had seen fit to make this distinction the conduct of carrying out its trust responsibility. 2117. “Major Crimes Act—Felony Murder.” Gonzaga Law Review 11 (Winter 1976): 775–84. The Ninth Circuit Court of Appeals, in United States v. Antelope, ruled “the felony-murder provisions of the Major Crimes Act unconstitutional as applied to Indian defendants accused of killing a nonIndian in Idaho.” The article’s author argues that the defendants were “at a serious disadvantage solely because they were Indians.” 2118. Meeks, Elsie and Frank Pommersheim. “A Review of South Dakota Criminal Justice: A Study of Racial Disparities.” South Dakota Law Review 48, no. 2 (2002–03): 208–16. Reviews state-sponsored research on inmate sentencing disparities. Sentencing discrimination has public policy implications regarding the state’s political institutions and tribal residents. 2119. Moeller, James C. “The Death of Raymond Yellow Thunder: A Nebraska Problem—Not South Dakota’s.” Journal of the West 41 (Fall 2002): 57–62. The 1972 killing of Raymond Yellow Thunder in Gordon, Nebraska, was largely a reflection of the racist character of Gordon and Sheridan County. Moeller reviews the trial of the alleged assailants, arguing that justice was not served.

2114. McMurry, Orrin K. “Seventy-five Years of California Jurisprudence.” California Law Review 13 (September 1925): 445–67. Historical overview briefly discussing legislation that prohibits Indians from testifying in criminal cases against whites.

2120. Mudd, Joseph. “Indian Juveniles and Legislative Delinquency.” Montana Law Review 33 (Summer 1972): 233–54. Reservation juvenile delinquency is a problem that tribal judicial systems face because Congress has not provided enough resources. The creation of a federal Indian juvenile code would be a good first step.

2115. MacLachlan, Bruce B. “The Mescalero Apache Quest for Law and Order.” Journal of the West 3 (October 1964): 441–58. Relies primarily on reports of the Commissioner of Indian Affairs to detail the evolution of criminal justice on the Mescalero reservation, from the formation of a police force under the agent’s direction in

2121. Nash, Douglas. “Tribal Control of Extradition from Reservations.” Natural Resources Journal 10 (July 1970): 626–34. In 1969, the Ninth Circuit Court of Appeals heard State of Arizona ex rel Merrill v. Turtle involving extradition. The court upheld the Navajo tribe’s right of self-government.

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2122. National American Indian Court Judges Association. Justice and the American Indian, Vol. 3: The Effect of Having No Extradition Procedures for Indian Reservations. Washington, DC: National American Indian Court Judges Association, 1974. Extradition is an old problem that emerged early in this nation’s relationships with tribal nations and has become more complex with the passage of time. 2123. National American Indian Court Judges Association. Justice and the American Indian, Vol. 5: Federal Prosecution of Crimes Committed on Indian Reservations. Washington, DC: National American Indian Court Judges Association, 1974. Employing grassroots interviews, the study reveals that the federal authorities operate alone for the most part, but a majority of federal authorities are concerned and should be interested in this study. 2124. Nelson, Robert A. and Joseph F. Sheley. “Bureau of Indian Affairs Influence on Indian Self-Determination.” In American Indian Policy in the Twentieth Century, edited by Vine Deloria, Jr., 177–96. Norman: University of Oklahoma Press, 1985. The BIA has resisted relinquishing its control of tribes and impeded self-determination policy. Since P.L. 93-638, the BIA has maintained its position of power through increased bureaucratization. The authors propose a criminal justice plan to serve as a compromise between the BIA and tribes. 2125. Nelson, Robert A. and Joseph F. Sheley. “Current BIA Influence on Indian Self-Determination: A Criminal Justice Planning Illustration.” Social Science Journal 19 (July 1982): 73–85. Tribal self-determination has not advanced since the 1960s because of the BIA’s interest in keeping tribal people in a subordinate position. The illustration employed to defend this thesis is reservation criminal justice planning where the BIA tries to keep control over the reservation judicial system. 2126. Nielsen, Marianne O. “Contextualization for Native American Crime and Criminal Justice Involvement.” In Native Americans, Crime, and Justice, edited by Marianne O. Nielsen and Robert A. Silverman, 10–19. Boulder, CO: Westview Press, 1996. Tribal people are over-represented in the legal system because of the combination of colonialism, poor socio-economic conditions, and the limited power of tribal judicial institutions. 2127. Nielsen, Marianne O. “Major Issues in Native American Involvement in the Criminal Justice System.” In Native Americans, Crime, and Justice, edited by Marianne O. Nielsen and Robert A. Silverman, 293–302. Boulder, CO: Westview Press, 1996.

Sovereignty is crucial for tribes to establish their own courts and modes of punishment. Increasing tribal political power has potential to assist tribal members in staying out of prison. 2128. Nielsen, Marianne O., Dorothy Fulton, and Ivan Tsosie. “Recent Trends in Community-base Strategies for Dealing with Juvenile Crime in the Navajo Nation.” In Native Americans and the Criminal Justice System, edited by Jeffrey Ian Ross and Larry Gold, 197–215. Boulder, CO: Paradigm Publishers, 2006. There are many obstacles, including jurisdictional and funding constraints, impeding the development of culturally based juvenile justice models on the Navajo Nation. 2129. Nielsen, Marianne O. and Robert A. Silverman, eds. Native Americans, Crime, and Justice. Boulder, CO: Westview Press, 1996. Essays by various authors, and reprinted newspaper articles, discuss causes for social disruptions in tribal communities that have the potential to lead to crimes in tribal populations. Sections include the law, crimes, police, courts, sentencing, corrections, and alternatives. 2130. Norman, William. “Native American Inmates and Prison Grooming Regulations: Today’s Justified Scalps: Iron Eyes v. Henry.” American Indian Law Review 18, no. 1 (1993): 191–225. The Eighth Circuit Court of Appeals, in Iron Eyes v. Henry, denied Iron Eyes, a Lakota prisoner who practices the pipe religion, the right to wear his hair a specific way as part of his free exercise of religion. Four courts have followed this precedent. 2131. Nunis, Doyce B., Jr. “The 1811 San Diego Trial of the Mission Indian Nazario.” Western Legal History 4 (Winter/Fall 1991): 47–58. Revisionist scholars often use this case to illustrate the mission system’s cruelty. The trial transcript is presented, as well as a photograph of the La disciplina that was used to render a whipping to both Indian and Franciscans. 2132. Ogborn, Michael J. “Constitutional Implications of an Indian Defendant’s Right to a Lesser-Included Offense Instruction.” South Dakota Law Review 16 (Spring 1971): 468–80. A tribal defendant was charged with one of the ten major crimes under the Major Crimes Act, but was denied the right to bargain down for a lesser crime in United States v. Antelope. This denial robs the tribal defendant of due process. The problem is inherent in the Major Crimes Act because states continue to assume jurisdiction over tribal populations.

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2133. Parman, Donald L. “The ‘Big Stick’ in Indian Affairs: The Bai-a-lil-le Incident in 1909.” Arizona and the West 20 (Winter 1978): 343–60. Account of the 1907 arrest of Navajo dissidents and the subsequent violation of their trial rights by federal officials. IRA protests helped lead to their release in 1909. The case is significant because it revealed the true nature of racism in the era, as well as Indian dissatisfaction with the reservation system. 2134. Peak, Ken and Jack Spencer. “Crime in Indian Country: Another ‘Trail of Tears.’” Journal of Criminal Justice 15 (1987): 485–94. Examines the frequency of Indian committed offensives both on- and off-reservation. Tribal members lean toward “less serious, alcohol-related offenses,” forcing law and order systems to employ measures that are suited to this type of crime. 2135. Petterson, Jay R. “Education, Jurisdiction, and Inadequate Facilities as Causes of Juvenile Delinquency among Indians.” North Dakota Law Review 48 (Summer 1974): 661–94. Swings in federal policy, an educational system that does not understand tribal youth, jurisdictional conflicts, and inadequate reservation infrastructures all contribute to reservation delinquency. 2136. Pfaller, Rev. Louis. “The Brave Bear Murder Case.” North Dakota History 36 (Spring 1969): 121–39. In 1882, a Yanktonnai Sioux was hanged after robbing and killing Indians and whites. This is a narrative account of the crimes and trial. 2137. Pollman, Terrill. “Double Jeopardy and Nonmember Indians in Indian Country.” Nebraska Law Review 82, no. 4 (2004): 889–946. The Eighth Circuit Court of Appeals prevents prosecution in both tribal and federal courts while the Ninth Circuit Court of Appeals has ruled that tribal prosecution does not prohibit federal action. This split raises a Fifth Amendment double jeopardy issue and brings the extent of tribal sovereignty into question. 2138. Pommersheim, Frank and Steve Wise. “Going to the Penitentiary: A Study of Disparate Sentencing in South Dakota.” Criminal Justice and Behavior 16 (1989): 155–65. There is a disproportionate tribal prison population in South Dakota. Possible reasons for this include escalated tribal alcohol-related and poverty-related crime and police decisions to charge tribal offenders disproportionately. Parole practices may prevent more tribal members from leaving prison early. 2139. Poupart, Lisa M. “Juvenile Justice Processing of American Indian Youths: Disparity in One Rural

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County.” In Minorities in Juvenile Justice, edited by Kimberly Kempf Leonard, Carl E. Pope and William H. Feyerherm, 179–200. Thousand Oaks, CA: Sage Publications, 1995. Indian youths were “slightly more likely to receive the more punitive outcome” than were whites. 2140. Randall, Archie and Bette Randall. “Criminal Justice and the American Indian.” Indian Historian, 11 (Spring 1978): 42–48. Examines arrests of tribal people in Spokane, Washington, provides arrest figures, and urges the closure of the Indian bars as a preventive measure. 2141. Reed, Little Rock, ed. The American Indian in the White Man’s Prisons: A Story of Genocide. Taos, NM: Uncompromising Books, 1993. Contends that a great number of incarcerated American Indians are political prisoners. Legislation is needed to protect prisoners’ cultural and spiritual rights and end genocidal policies. 2142. Reid, John Phillip. “Restraints of Vengeance: Retaliation-in-Kind and the Use of Indian Law in Old Oregon Country.” Oregon Historical Quarterly 95 (Spring 1994): 48–92. American mountain men and British fur trading companies may have understood “Indian law,” which provided for blood retaliation for homicide, and applied it against Indians in the Pacific Northwest. 2143. Riding In, James. “The United States v. Yellow Sun et al. (The Pawnee People): A Case Study of Institutional and Societal Racism and U.S. Justice in Nebraska from the 1850s to 1870s.” Wicazo Sa Review 17 (Spring 2002): 13–41. Analysis of an unfair trial of four innocent Pawnees for murdering a homesteader in 1869. The trial led to abuse of the Pawnees and to their “involuntary incorporation” into the American legal system. 2144. Ross, Jeffrey Ian. “Policing Native Americans Off the Rez.” In Native Americans and the Criminal Justice System, edited by Jeffrey Ian Ross and Larry Gold, 135–42. Boulder, CO: Paradigm Publishers, 2006. Examines the relationship between police and Native Americans in large urban environments. One major problem with policing is that American law enforcement is still grounded in European philosophies of social control, which is anathema to Native ways. 2145. Ross, Jeffrey Ian and Larry Gould, eds. Native Americans and the Criminal Justice System. Boulder, CO: Paradigm Publishers, 2006. Essays by various authors dealing with the courts, police, corrections, and juvenile justice. In their

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introduction, the authors stress the importance of fundamental conflict between European-based concepts of justice and Native concepts. 2146. Ross, Luana. Inventing the Savage: The Social Construction of Native American Criminality. Austin: University of Texas Press, 1998. Studies the life histories of incarcerated Native women and compares their experiences to those of non-Natives. Colonialism, racism, and loss of sovereignty are key factors affecting their criminalization and treatment as prisoners. Differences are also shown to exist between the experiences of reservation and nonreservation Natives. Native prisoners view rehabilitation efforts as “culture-bound and racist.” 2147. Ross, Luana. “Race, Gender, and Social Control: Voices of Imprisoned Native American and White Women.” Wicazo Sa Review 10 (Fall 1994): 17–39. Indian women in Montana prisons were given longer sentences and were sexually touched more than their white counterparts. 2148. Ross, Rupert. “Leaving Our White Eyes Behind: The Sentencing of Native Accused.” In Native Americans, Crime, and Justice, edited by Marianne O. Nielsen and Robert A. Silverman, 152–69. Boulder, CO: Westview Press, 1996. Tribal members have a different set of “ethical commandments” than in nontribal cultures. As a result, outsiders do not properly interpret tribal judicial processes. 2149. Silverman, Robert A. “Patterns of Native American Crime.” In Native Americans, Crime, and Justice, edited by Marianne O. Nielsen and Robert A. Silverman, 58–74. Boulder, CO: Westview Press, 1996. Arrest records provide numerical data on the extent of tribal involvement in criminal activity. 2150. Smith, Gregory D. “Disparate Impact of the Federal Sentencing Guidelines on Indians in Indian Country: Why Congress Should Run the Erie Railroad in the Major Crimes Act.” Hamline Law Review 27 (Summer 2004): 483–533. In 1984, Congress passed the Sentencing Reform Act to push for uniformity and “honesty in sentencing.” The best way to end disparate sentences would be to adapt an Erie approach where the major crime would be heard in federal court, but apply state substantive law and sentencing guidelines. 2151. Smith, Robert E. “A Life for a Pair of Boots: The Murder of Shepalina.” Chronicles of Oklahoma 69 (Spring 1991): 26–47. A non-Indian storeowner was acquitted in an 1879 murder case involving a young Modoc victim. Vari-

ous factors, including simmering white attitudes about Custer’s defeat, personal political interests, bureaucratic disorganization, tribal government chaos, and general disregard of Native Americans led to a miscarriage of justice. 2152. Stewart, Omer. “Questions Regarding American Indian Criminality.” Human Organization 23, no. 1 (1964): 61–66. The 1962 Uniform Crime Report and records from tribal courts finds that Indians have a higher rate of criminality than the nation as a whole. This may be a result of federal wardship. 2153. Svingen, Orlan J. “The Case of Spotted Hawk and Little Whirlwind: An American Indian Dreyfus Affair.” Western Historical Quarterly 15 (July 1984): 281–97. Discusses the trial and conviction of Spotted Hawk and Little Whirlwind, two Northern Cheyenne men accused of the murder of a Montana sheepherder in the late 1890s. The two were first convicted, but later made successful appeals for their release. 2154. Taft, Philip. “Behind Prison Walls, Indians Reclaim Their Heritage.” Corrections Magazine 7 (June 1981): 6–14. Based on their life inside a prison, many tribal inmates believe they will never be assimilated. That makes ceremonies behind bars and facilities outside a prison important for the return of the tribal inmates to their communities. 2155. Trafzer, Clifford E., ed. “An Indian Trader’s Plea for Justice, 1906.” New Mexico Historical Review 47 (July 1972): 239–56. Uses Daniel Mitchell’s example to demonstrate how traders could be defenders of Indian rights. Mitchell’s intervention helped win the 1907 release of Navajo prisoners, who he believed had been denied their legal rights by BIA agents. 2156. W. F. C., Jr. “The Constitutional Rights of the American Tribal Indian.” Virginia Law Review 51 (January 1965): 121–42. Archie Glover was found guilty by the Confederated Salish and Kootenai tribal court and sentenced to serve time in the tribal jail. He petitioned the federal district court, but was denied his writ on grounds that the constitutional protections of “due process and right to counsel do not apply in prosecutions in tribal courts.” There needs to be a Bill of Rights for tribes. 2157. Washburn, Kevin K. “The Federal Criminal Justice System in Indian Country and the Legacy of Colonialism.” Federal Lawyer 52 (March/April 2005): 40–47.

Criminal Justice and Prisoners’ Rights

Despite that philosophical tie, there is a separation between local tribal control and federal control in criminal justice. That might create a constitutional issue if the differences between philosophy and practice are not resolved. 2158. Williams, Larry E., Bruce A. Chadwick, and Howard M. Bahr. “Antecedents of Self-Reported Arrest for Indian Americans in Seattle.” Phylon 4 (3) third quarter (1979): 243–52. Washington is a P.L. 280 state. Tribal activism brought the plight of tribal arrests and treatment by law enforcement officers into the public eye. One potential way to create a better system of law and order for tribal people is through retrocession. 2159. Winkler, Albert. “Justice in the Black Hawk War: The Trial of Thomas Jose.” Utah Historical Quarterly 60 (Spring 1992): 124–36. Account of the 1867 case of a white man convicted in Utah for murdering an Indian. Because Jose murdered his victim near the end of the Black Hawk conflict, when whites were repudiating brutality against Indians, he paid for a crime that would have been ignored previously. 2160. Wishart, David. “The Death of Edward McMurty.” Great Plains Quarterly 19 (Winter 1999): 5–22.

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Pawnees were accused of murdering a white man in 1869, leading to increased hostilities between nonIndian Nebraskans and tribes. The case also revealed inadequacies in the judicial treatment of crimes involving Indians and non-Indians. 2161. Young, Rowland. “Live as You Please, but Die Brave.” American Bar Association Journal 58 (April 1972): 376–77. Overview of the historic Seminole punishment for crimes against the community. There was an execution tree for serious crimes, a whipping tree for less serious crimes, and no jail. A man given death left the court and returned on the appointed date for his execution after his affairs were in order. 2162. Zobel, Ron. “Tribal Courts, Double Jeopardy and the Dual Sovereignty Doctrine.” Gonzaga Law Review 13 (Spring 1978): 467–92. Double jeopardy occurs when one is tried by two different courts of the same sovereign, but are tribal courts extensions of the federal government or inherent courts of self-rule? The latter is true; therefore, being tried in a federal court and tribal court does not violate the double jeopardy doctrine.

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2163. Althouse, H. Scott. “Idaho Nibbles at Montana: Carving Out a Third Exception for Tribal Jurisdiction over Environmental and Natural Resource Management.” Environmental Law 31 (Summer 2001): 721–66. The Ninth Circuit Court of Appeals ruled in United States v. Idaho that the Coeur d’Alene Tribe is the lakebed owner of Lake Coeur d’Alene, thus implying that tribes have regulatory authority over bodies of water “so long as that activity threatens or has a direct impact on Lake Coeur d’Alene.” The third Montana exception held, and tribal regulations over nonmembers preempt state regulations.

Great Plains Natural Resources Journal 3 (Fall 1998): 99–116. The General Allotment Act created this dispute and the IRA did not resolve the status of former reservation lands conveyed to non-Indians. Since Congress would not resolve this conflict, the courts did. When a nonIndian proposed to create a landfill on fee land, the tribe objected. The issue is whether the tribe or the state has jurisdiction within the original reservation boundaries. The Supreme Court ruled that Congress intended to diminish the reservation in the 1894 agreement. 2167. Angle, Jerry. Federal, State and Tribal Jurisdiction on Indian Reservations in Arizona. Bureau of Ethnic Research—Department of Anthropology, University of Arizona, 1959. The Supreme Court decision in Williams reaffirmed the right of tribal courts to hear cases both civil and criminal against tribal defendants. This ruling angered many non-Indian residents of the state who thought that state courts had authority to prosecute non-Indians. This short publication was written to promote an understanding of tribal sovereignty and jurisdiction.

2164. “American Indian Law—Tribal Court Civil Jurisdiction—Ninth Circuit Holds That Blackfeet Tribal Court Lacks Subject Matter Jurisdiction over Tort Suit Arising on Reservation between Member and Nonmember.” Harvard Law Review 111 (April 1998): 1620–25. A tribal member filed a negligence suit in tribal court and won. The district court recognized the tribal court award and the district federal court granted a summary judgment motion. The Ninth Circuit Court of Appeals reversed the decision “reflecting a narrow view of inherent tribal sovereignty.”

2168. Baldassin, William R. and John T. McDermott. “Jurisdiction over Non-Indians: An Opinion of the ‘Opinion’.” American Indian Law Review 1 (Winter 1973): 13–22. Lawfully vested, inherent powers, of a tribe are the foundation of tribal law and are more extensive than outsiders understand.

2165. “American Indian Law—Tribal Court Civil Jurisdiction—Ninth Circuit Holds That Tribal Courts Lack Subject Matter Jurisdiction over Product Liability Suits Arising on Tribal Lands.” Harvard Law Review 118 (May 2005): 2469–76. In Ford Motor Co. v. Todecheene, the Ninth Circuit Court of Appeals reduced the Navajo tribal court’s authority to hear a product liability suit stemming from a fatal car accident because of a faulty Ford vehicle. The court may have restricted tribal authority.

2169. Bamberger, James A. “Public Law 280: The Status of State Legal Jurisdiction over Indians after Washington v. Confederated Bands and Tribes of the Yakima Indian Nation.” Gonzaga Law Review 15, no. 1 (1979): 133–69. This Supreme Court decision diminishing tribal sovereignty. The court accepted Washington State’s P.L.

2166. Andersen, Bryan T. “South Dakota v. Yankton Sioux Tribe: Sewing a Patchwork Quilt of Jurisdiction.” 225

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280 jurisdiction assumption agreement even though it was an “arbitrary legislative choice forbidden by the Equal Protection Clause.” This case made inroads against ICRA and ICWA. 2170. Baris, Allan. “Washington’s Public Law 280 Jurisdiction on Indian Reservations.” Washington Law Review 53 (October 1978): 701–27. Since 1957, the revised code of Washington, chapter 37.12, has controlled state authority over reservations pursuant to P.L. 280. Tribes have complained that chapter 37.12 failed to comply with P.L. 280 and that it violated the equal protection clause of the Fourteenth Amendment. The Yakama have challenged the Washington law in court and if upheld, it will be overturned. 2171. Barton, John D. and Candace M. Barton. “Jurisdiction of Ute Reservation Lands.” American Indian Law Review 26, no. 1 (2001–2002): 133–46. The Ute Tribe engaged in a controversial effort between 1981 and 1994 to regain jurisdictional rights over reservation land taken by allotment. The Supreme Court finally decided that the reservation had been terminated and thus denied the tribe jurisdictional rights over non-Indians. 2172. Bekken, James M. “Indians—Reservations— Jurisdictional Effect of Surplus Land Statute upon Traditional Boundaries of an Indian Reservation.” North Dakota Law Review 52 (Winter 1975): 411–18. South Dakota authorities removed SissetonWahpeton enrolled children from their enrolled mother. She filed suit, claiming the state lacked jurisdiction, but the state Supreme Court ruled that the unallotted lands had been sold to the U.S. in 1891 and were not Indian Country. A second suit ruled the 1891 law had no effect on the reservation boundaries and the unallotted lands were Indian Country. Combined as DeCoteau v. District Court for Tenth Judicial District, for appeal to the U.S. Supreme Court, the high court ruled that an 1891 act terminated the Lake Traverse reservation. 2173. Bridgers, Ben Oshel. “An Historical Analysis of the Legal Status of the North Carolina Cherokee.” North Carolina Law Review 58 (August 1980): 1075–1131. North Carolina has hung on to a belief that it has jurisdiction over tribes, but that is an error since Congress never delegated any special authority over the Cherokee to North Carolina. Congress will have to intervene to prevent states from creating their own body of law and escalating the chaos. 2174. Briggs, Eric R. “Tribal Preemption.” Washington Law Review 54 (June 1979): 633–52.

Tribal preemption occurs when the tribal nation decides to cast out state concurrent jurisdiction. The non-Indian population living on a reservation opposes this because they will find themselves under either tribal or federal jurisdiction. Also, tribal preemption has a major effect on tribal economic development, which is necessary and may depend on tribal preemption, especially in the area of tribal tax assessment. 2175. Bubrow, Jonathan. “Recent Decisions.” Gonzaga Law Review 13 (Fall 1977): 225–39. The Ninth Circuit Court of Appeals ruled in Confederated Bands and Tribes of the Yakima Nation v. Washington that Washington state’s partial assumption of reservation criminal and civil jurisdiction “denied equal protection of the law to the residents of the Yakima Indian Reservations.” 2176. Burling, James S. “The Extension of Arizona’s Workmen’s Compensation Act to the Navajo Reservation: An Unjustified Infringement of Sovereignty?” Arizona Law Review 24, no. 1 (1982): 168–79. In Johnson v. Kerr-McGee Oil Industries (1981), the Arizona Court of Appeals ruled that the oil company was subject to Arizona’s workers compensation act. Chester Johnson died from radon exposure and his widow was entitled to compensation. This case was an infringement on tribal sovereignty since tribes have the right to govern health issues even if a state has cause to extend its justice onto tribal lands. 2177. Cable, Keith. “Rosebud v. South Dakota: How Does Tribal Sovereignty Affect the Determination of State Jurisdiction on Reservation Highways?” South Dakota Law Review 36, no. 2 (1991): 400–18. The Eighth Circuit prohibited South Dakota from assuming civil and criminal jurisdiction on highways traversing the reservation. 2178. Cahill, Bryan. “Teague v. Bad River Band of Lake Superior Tribe of Chippewa Indians: Bringing the Federal Exhaustion Rule to Tribal Remedies Home to Wisconsin Courts.” Wisconsin Law Review, no. 4 (2004): 1291–1345. The tribe fired Jerry Teague as the community’s casino manager and he filed suit in state court, initiating a series of cases to determine first if the state courts had authority to try a civil suit arising on the reservation. Despite being a P.L. 280 state, the state courts followed the exhaustion rule, dictating that Teague had to seek a remedy in tribal court. That decision weakens Wisconsin’s claim to civil authority on tribal lands.

Jurisdiction Overviews and Regulatory Powers

2179. Campf, Darren M. “California Supreme Court Survey.” Pepperdine Law Review 18, no. 4 (1991): 1053–62. California’s Supreme Court decided in Boisclair v. Superior Court that state courts had no authority to decide claims arising on tribal trust lands, but that tribal officials may be held responsible for acts committed off the reservation. 2180. Canby, William C., Jr. “Civil Jurisdiction and the Indian Reservation.” Utah Law Review (Spring 1973): 206–32. Williams v. Lee is the watershed civil jurisdiction case resurrecting Marshall’s Worcester decision. ICRA also limited state civil jurisdiction, but tribal courts operate under different procedures than state courts. Tribal courts should assume subject matter jurisdiction. 2181. Carter, Mickale. “Regulatory Jurisdiction on Indian Reservations in Montana.” Public Land Law Review 5 (Spring 1984): 147–70. Tribal regulatory authority is specific to each tribe’s activities. Enforcing regulatory activities will limit state authority on the reservation. The tribes with the most comprehensive resource plans and regulatory guidelines applicable to non-Indians will have the strongest authority. 2182. Christenson, Steven M. “Regulatory Jurisdiction over Non-Indian Hazardous Waste in Indian Country.” Iowa Law Review 72 (May 1987): 1091–1116. Congress passed the Resource Conservation and Recovery Act in 1976, providing for hazardous waste management, but the law did not address Indian Country. This legislation presents an opportunity for jurisdictional conflicts between states and tribal authorities over non-Indian owned or leased land inside reservations. Congress could prevent or reduce the problem by preempting state authority, but has not done so. 2183. Clayton, Thomas W. “Brendale v. Yakima Nation: A Divided Supreme Court Cannot Agree over Who May Zone Nonmember Fee Lands within the Reservation.” South Dakota Law Review 36, no. 2 (1991): 329–57. Three groups of Justices in the Supreme Court wrote three decisions in Brendale resulting in one group giving Yakima County obtained jurisdiction over open lands with a large number of resident nonIndians. The second group of justices gave the Yakama Nation obtained authority over a closed section of the reservation populated by primarily tribal residents, and the other group opposed the first order and the method used to reach the second.

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2184. Clow, Richmond L. “State Jurisdiction on Sioux Reservations: Indian and Non-Indian Responses, 1952–1964.” South Dakota History 11 (Summer 1981): 171–84. South Dakota attempted to assume jurisdiction over the reservations located within the state’s boundaries under P.L. 280 provisions in 1964. The Lakota leaders formed the United Sioux Tribes of South Dakota to defer to the voters the issue of state assumption of reservation jurisdiction. The Lakota campaign was based on increased costs and taxes to the state. The voters overturned the state legislature’s efforts. 2185. Coulter, Robert T. “A History of Indian Jurisdiction.” In Rethinking Indian Law 5–14. New York: National Lawyers Guild, Committee on Native American Struggles, 1982. Historical overview of jurisdiction problems presented from an Indian point of view. 2186. Crafts, Amy. “Nevada v. Hicks and Its Implications on American Indian Sovereignty.” Connecticut Law Review 34 (Summer 2002): 1249–80. The Oliphant ruling ended tribal criminal authority over non-Indians and tribes have not easily accepted it. It is wrong to apply the Oliphant construction to civil suits as so often happens. In the Hicks case, Nevada worked with the Fallon PaiuteShoshone, lending weight to the conclusion that Hicks did not diminish tribal sovereignty. 2187. Cree, Linda. “The Extension of County Jurisdiction over Indian Reservations in California: Public Law 280 and the Ninth Circuit.” Hastings Law Journal 25 (May 1977): 1451–1506. P.L. 280 granted California limited jurisdiction over tribes within the state. The Ninth Circuit Court of Appeals was “recently presented an opportunity to decide” the extent of P.L. 280 “but declined to reach the merits of the controversy on procedural grounds.” 2188. Crosse, Murray L. “Criminal and Civil Jurisdiction in Indian Country.” Arizona Law Review 4 (Fall 1962–1963): 57–64. Discusses the Assimilative Crimes Act and criminal and civil jurisdiction in Indian Country, and stresses that Williams v. Lee and Native American Church of No. America v. Navajo Tribal Council have not created a no-man’s land in Indian Country. Jurisdiction in Indian Country is complex, with tribal sovereignty being inherent and Congress granting jurisdiction on reservation lands to states. 2189. Davis, Laurence C. “Criminal Jurisdiction over Indian Country in Arizona.” Arizona Law Review 1 (Spring 1959): 62–101.

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The Supreme Court ruling in Williams v. Lee followed past precedents, especially Worcester. Federal law must be looked to for the limitations of tribal sovereignty. Extending state criminal authority over tribal people would be wrong since many could not serve on juries or pass the state’s literacy requirements. 2190. Demolli, Frank A. “A Pueblo’s Response to Strate v. A-1 Contractors.” Thomas M. Cooley Law Review 14, no. 3 (1997): 541–53. A judge for Pojoaque discusses the implications of Strate for the Pueblo that has a very busy highway running through it, U.S. 84-285. Demolli notes the differences between Pueblo, and the North Dakota reservation’s, rights of way. 2191. de Verges, George. “Jurisdiction: Extension of State Authority over Indian Lands—The New Mexico Cases.” American Indian Law Review 3, no. 1 (1975): 137–48. Examines cases from New Mexico that cover a wide range of topics including voting. The New Mexico Supreme Court was not bold in claiming state authority on tribal lands, but the question remains, how enforceable are these state decisions. 2192. Duck, Aaron S. “Indians: Modern Tribal Jurisdiction over Non-Indian Parties: The Supreme Court Takes another Bite out of Tribal Sovereignty in Strate v. A1 Contractors.” Oklahoma Law Review 51 (Winter 1998): 727–46. In Montana v. United States (1981), the Supreme Court decided two exceptions for tribal court civil jurisdiction over non-members: when a consensual agreement is made or when a tribe’s political welfare, or security is in jeopardy. Three year later in National Farmers Union, the high court ruled that tribal courts were the first remedy in civil cases. The first case to exhaust all tribal remedies was Strate that involved a vehicle accident on the Fort Berthold Reservation between non-tribal members. The case reached the Supreme Court that decided that the exhaustion rule of National Farmers Union only pertained to members, that the reason of Montana prevailed, and that tribal interests were not infringed upon, thus striking another blow against tribal sovereignty. 2193. Dussias, Allison M. “Tribal Court Jurisdiction over Civil Disputes Involving Non-Indians: An Assessment of National Farmers Union Insurance Cos. v. Crow Tribe of Indians and a Proposal for Reform.” University of Michigan Journal of Reform 20 (Fall 1986): 217–44. This began as a personal injury dispute involving the school district and its insurer and escalated to a discussion of what court had authority to hear the

case. Instead of following Oliphant, the court developed an exhaustion test that the tribal court is the first court of authority to hear the case. This decision recognizes tribal sovereignty, and after all tribal remedies are completed, then the case may proceed to the federal court. To insure that civil suits stay in tribal courts, a petition should be created listing the civil subjects under tribal court authority. 2194. “Enforcement of State Financial Responsibility Laws within Indian Country.” Arizona Law Review 17, no. 3 (1975): 831–45. In Wauneka v. Campbell, the Arizona Court of Appeals, in 1974, ruled that a state was powerless to enforce its financial responsibility laws on the reservation. This left a void that tribes could fill through the enactment of tribal ordinances based on tribal values permitting the tribes to assert their right of selfdetermination. 2195. Fisher, Sarah. “Indian Law.” Golden Gate University Law Review 7 (Fall 1976): 313–35. The Eighth, Ninth, and Tenth Circuit Courts of Appeals rule on most tribal cases. Santa Rosa Band of Indians v. Kings Country involved the application of non-Indian zoning regulations on reservation. The court ruled that P.L. 280 did not give non-Indian governments zoning authority. 2196. Foerster, Arthur F. “Divisiveness and Delusion: Public Law 280 and the Evasive Criminal/Regulatory Distinction.” UCLA Law Review 46 (April 1999): 1333–74. P.L. 280 states often hinder federal self-determination policy. The Supreme Court developed a test of state authority under P.L. 280 in California v. Cabazon to separate criminal actions from regulation, but this action is still short of the goals that Congress set for tribal America. 2197. Freimund, Jeffrey. “Queets Band of Indians v. Washington: An Indian Victory on Sovereignty Grounds.” Willamette Law Review 22 (Winter 1986): 201–8. This case involved tribal vehicle licensing on the reservation. The Ninth Circuit Court ruled that tribal sovereignty preempted state’s authority and that “Washington was obligated to offer licensing reciprocity to Indian tribes in the same way that it offered reciprocity to other jurisdictions.” 2198. Frizzell, Kent, “Evolution of the Jurisdiction in Indian Country: Foreword.” University of Kansas Law Review 22 (Spring 1974): 341–49. Wounded Knee raised the issue of tribal sovereignty and tribal relations with other governments. To facilitate a greater understanding of federal Indian law, Frizzell offers an overview of tribal legal history

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within the U.S., beginning with the Trade and Intercourse Act of 1790 and ending with President Nixon’s 1970 message to Congress that tribal Americans were a deprived minority. 2199. Garrison, Emma. “Baffling Distinctions between Criminal and Regulatory: How Public Law 280 Allows Vague Notions of State Policy to Trump Tribal Sovereignty.” Journal of Gender, Race & Justice 8 (Fall 2004): 449–81. Designed to solve the jurisdictional maze among the federal government, tribes and states, P.L. 280 created more complex legal tangles since criminal and civil jurisdiction was granted to specific states. The only solutions are for the federal government to withdraw P.L. 280, and for states and tribes to negotiate settlements between themselves to avoid unpredictable judicial decisions. 2200. Gerrard, Jessica. “Undermining Tribal Land Use Regulatory Authority: Brendale v. Confederated Tribes.” University of Puget Sound Law Review 13 (Winter 1990): 349–75. Controlling land use is an essential attribute of sovereignty, but the Supreme Court ruled that the 1887 General Allotment Act reduced the power of a tribe to restrict non-tribal members. Now a tribal government can only control land use in areas where non-Indians have been excluded. As a result, the decision hampers tribal efforts to regulate and zone reservation land usage. 2201. Goeppele, Craighton. “Solutions for Uneasy Neighbors: Regulating the Reservation Environment.” Washington Law Review 65 (April 1990): 417–36. Brendale was a consolidated case where a nonmember Indian and non-Indian wanted to sub-divide their fee lands on the Yakama Reservation. The tribal government required that the two men follow tribal zoning ordinances and they refused. The suit reached the Supreme Court, which ruled that tribes can control zoning on tribal lands, but not on fee lands, thus maintaining the checkerboard pattern that is contrary to good land planning. 2202. Goldberg, Carole E. “Public Law 280: The Limits of State Jurisdiction over Reservation Indians.” UCLA Law Review 22 (February 1975): 535–94. P.L. 280 gave criminal and civil jurisdiction over to the states and ICRA amended the previous law, requiring tribal consent before a state could assume jurisdiction over a reservation. The amendment provided for retrocession if Congress had mandated a state to assume jurisdiction over a reservation. With Congress stressing tribal self-rule, courts should consider P.L. 280 a preemptive measure that “should be interpreted to limit state jurisdiction where that is

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consistent with the often ambiguous language and legislative history.” 2203. Goldberg-Ambrose, Carole. Planting Tail Feathers: Tribal Survival and Public Law 280. American Indian Studies Center, UCLA, 1997. Discusses Congress’s enactment of P.L. 280 and the hardship this legislation brought to affected reservations. Also presents a legal understanding of this act and discusses the importance of rebuilding tribal governments, reservation economics, and communities after passage of P.L. 280. 2204. Goldberg-Ambrose, Carole. “Public Law 280 and the Problem of Lawlessness in California Indian Country.” UCLA Law Review 44 (June 1997): 1405–48. If one believes that reservation lawlessness was one reason for the passage of P.L. 280 in 1953, an even greater irony has occurred because “Public Law 280 has itself become a source of lawlessness on reservations.” It has created a “legal vacuum” of lawlessness and encouraged states to abuse their power. 2205. Gonzalez, Gerald T. E. “Indian Sovereignty and the Tribal Right to Charter a Municipality for NonIndians: A New Perspective for Jurisdiction on Indian Land.” New Mexico Law Review 7 (Summer 1977): 153–223. Despite ICRA, tribes retain inherent tribal sovereignty that includes the power to create municipalities— even for non-members. Under these conditions, there is no need for state jurisdiction and there is a mechanism to preserve tribal sovereignty. 2206. Gonzalez, Mario. “Regulation of Indian Traders: A Historical Perspective.” American Indian Law Review 5, no. 2 (1977): 313–42. The Indian trader is popular in myth, but the Indian trader still continues to operate on reservations. Today, the BIA still regulates non-Indians on the reservation doing business on fee land, but tribal leaders want to assume control of trader activities. 2207. Gover, Kevin. “Jurisdiction: Conflicts of Law and the Indian Reservation: Solutions to Problems in Indian Civil Jurisdiction.” American Indian Law Review 8, no. 2 (1980): 361–85. Tribes and states have the opportunity to create policies regarding private civil dispute resolution free from the jurisdictional maze. The states must accept tribal exclusivity. 2208. Grant, J. A. C. “The Scope and Nature of Concurrent Power.” Columbia Law Review 34 (June 1934): 995–1040. Discusses the legal theory of concurrent powers in a broad context, touching on Indian reservations as being under federal jurisdiction.

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2209. Guthals, Joel E. “State Civil Jurisdiction over Tribal Indians—A Rexamination.” Montana Law Review 35 (Summer 1974): 340–47. Raises the question of civil jurisdiction redress for tribal members when tribal courts do not have authority over specific actions. The Blackfeet tribe wanted to transfer jurisdiction to Montana, but the Supreme Court barred that action due to the lack of federal legislation and the absence of state acceptance. In two tribal divorce cases in state court, Iron Bear and Bad Horse the courts granted the divorces, departing from the Supreme Court rulings. 2210. Hacker, Patrick E., Dennis C. Meier, and Dan J. Pauli. “State Jurisdiction over Indian Land Use: An Interpretation of the ‘Encumbrance’ Savings Clause of Public Law 280.” Land and Water Law Review 9, no. 2 (1974): 421–56. Focuses on the term encumbrance that was part of P.L. 280 language. The courts have difficulty applying the concept to actual cases. The courts should take a broad approach when discussing encumbrance. 2211. Hansen, Sandra. “Survey of Civil Jurisdiction in Indian Country 1990.” American Indian Law Review 16, no. 2 (1991): 319–75. Surveys tribal taxation, P.L. 280’s role in civil jurisdiction matters, various federal acts, and state regulatory authority. After Oliphant, tribes fought to preserve their civil jurisdiction over non-Indians residing on the reservation. 2212. Harte, John J. “Civil Procedure—New Mexico State Courts Have Concurrent State Court Civil Jurisdiction over Nonmember Indians for Torts Committed on a Reservation: Wacondo v. Concha.” New Mexico Law Review 25 (Winter 1995): 97–108. The New Mexico Court of Appeals assisted the state’s effort to gain more authority on reservations, ruling that state courts have concurrent jurisdiction with tribal courts when a tribal member brings suit against a non-member Indian in tribal court. 2213. Hermes, Katherine A. “Jurisdiction in the Colonial Northeast: Algonquian, English and French Governance.” American Journal of Legal History 43 (January 1999): 52–73. English, French, and Algonquians all focused on gaining and maintaining power in New England in the seventeenth century. Hermes studies the relationship between subject matter jurisdiction and the slow shift from colonial to state and federal governance. 2214. “A History of Indian Jurisdiction.” American Indian Journal of the Institute for the Development of Indian Law 2 (April 1976): 2–15.

Overview of the history of court decisions and federal laws that influence the extent of tribal jurisdiction on reservations. 2215. Hoffman, Amy R. Pivetta. “Nevada v. Hicks and Tribal Civil Liberties Jurisdiction: A Plea for Federal Consistency.” Public Land & Resources Law Review 24 (Winter 2004): 99–120. In Hicks, the Supreme Court rejected some Montana exceptions and permitted a Nevada game warden to execute a search warrant. In disagreeing with the court’s ruling, Hoffman discusses the importance of this case in further diminishing tribal civil authority, while permitting greater state authority within the reservation. 2216. Houston, Les. “The States and Indian Jurisdiction.” State Government 51 (Winter 1978): 20–27. Congress should enact legislation giving states jurisdiction like they have over other citizens, but being careful to protect tribal cultural identity and tribal self-identity. 2217. Igou, Jeffery M. “Leaving the Reservation: The Eighth Circuit Court Eliminates Tribal Court Subject Matter Jurisdiction over Suits between Nonmembers in A-1 Contractors v. Strate.” Creighton Law Review 30 (May 1997): 865–911. Gisela Fredericks, a non-member property owner from the Fort Berthold Reservation, collided with a truck that A-1 Contractors owned. She sued in tribal court and the court applied the Montana rule that “the inherited authority of Indian tribes did not include the powers to regulate activities of nonmembers on lands owned by nonmembers.” The court overextended the Montana test, including a refusal to examine inherent sovereignty. This decision impairs a tribal court from conducting actions necessary for preserving reservation quality of life. 2218. Indian Civil Rights Task Force. “Development of Tripartite Jurisdiction in Indian Country.” University of Kansas Law Review 22 (Spring 1974): 351–85. Beginning with the early nineteenth century cases such as Fletcher v. Peck and ending with the Oliphant v. Schlie, the authors note that these cases have determined the scope and extent of tribal sovereignty. 2219. James, Richard E. “Sanctuaries No More: The United States Supreme Court Deals Another Blow to Indian Tribal Court Jurisdiction.” Washburn Law Journal 41 (Winter 2002): 347–64. Since 1978, the Supreme Court has limited tribal court authority, and it continued that trend in Nevada v. Hicks, ruling that tribal courts do not have authority over state officials operating on the reservation when the crime occurred off the reservation.

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2220. Jim’enez’, Vanessa J. and Soo C. Song. “Concurrent Tribal and State Jurisdiction under Public Law 280.” American University Law Review 47 (August 1998): 1627–1707. The era of termination that fostered this legislation has passed and the nation has entered into the era of tribal self-determination. President Clinton’s 1997 order on Indian Country law enforcement was a beginning. 2221. Johnny, Ronald Eagleye. “Nevada v. Hicks: No Threat to Most Nevada Tribes.” American Indian Law Review 25, no. 2 (2000–2001): 381–85. The Supreme Court stopped “tribal authority to regulate state officers in executing process related to the violation, off-reservation, of state laws” as “not essential to tribal self-government or internal relations.” It is not a threat to the Northern Paiute or Western Shoshone nations. Most litigants will continue bringing suit in their tribal courts. 2222. “Jurisdiction—Indian Courts—Powers of State Courts in Controversies Over Indian Reservation Lands.” Yale Law Journal 31 (January 1922): 331–32. New York State courts have jurisdiction over subjects not specified in the tribal peacemaker courts created in the New York legislation of 1797. 2223. Kawashima, Yasuhide. “Jurisdiction of the Colonial Courts over the Indians in Massachusetts, 1689– 1763.” New England Quarterly 42 (December 1969): 532–50. When the Indian plantations were established, the colony tried to create special tribal courts under its control, but failed. By the end of the eighteenth century, tribal members came under the same courts as other colonial residents. They had no other legal recourse and were treated the same as any other nonIndian resident of the colony. 2224. Keith, Shirley. “A Rebuttal to ‘The Pre-Emption Doctrine and Colonias de Santa Fe.’” Natural Resources Journal 14 (April 1974): 283–92. The court did not err because tribes have inherent sovereignty to regulate reservation building. Based on past case law, no state can extend its authority onto a reservation without congressional approval. 2225. Kennedy, Edward M. “Introduction.” University of Kansas Law Review 22 (Spring 1974): 337–40. Introduction to a forum discussing tribal sovereignty and concentrating on jurisdiction. The tribes’ unique status has created the legal conflicts between states and the federal government. 2226. King, Jamelle. “Tribal Court General Civil Jurisdiction over Actions between Non-Indian Plaintiffs and

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Defendants: Strate v. A-1 Contractors.” American Indian Law Review 22, no. 1 (1997–98): 191–221. After defining tests in Montana for tribal court civil jurisdiction over non-members, the Supreme Court, in Strate, turned the tables and provided nonmembers a way out of tribal court. The Supreme Court erred in this ruling, forcing Congress to enact a legislative remedy. 2227. Kirkwood, Martin. “Federal and State Regulation of Tribal Utilities.” Natural Resources & Environment 7 (Spring 1993): 27–29, 59–61. Congress passed the Energy Policy Act of 1992 “to encourage and cooperate with tribes in developing tribal natural resources.” The Federal Power Act can only regulate interstate power transmission, so the issue arises of states taxing utilities within their borders, and even more difficult legal problems arise if a tribal utility moves outside the reservation. 2228. Klein, Karen K. “Indians—Jurisdiction—Indian Consent to State Jurisdiction by Reservation Indian Ineffective.” North Dakota Law Review 52 (Winter 1975): 419–26. A member of the Fort Totten Reservation in North Dakota requested that his civil action be placed in state court, but the North Dakota Supreme Court overturned that court’s decision because Congress preempted the state from exercising such authority. 2229. Kuntz, James W. “Nuclear Incidents on Indian Reservations: Who Has Jurisdiction? Tribal Court Exhaustion versus the Price-Anderson Act.” American Indian Law Review 21, no. 1 (1997): 103–29. When tribal people suffer radiation exposure, what court has subject matter jurisdiction? The 1957 PriceAnderson Act, with its accompanying 1988 amendments, orders federal courts to be the primary forum, but “Congress may have intended to create an express tribal court jurisdictional prohibition.” 2230. Kutner, Peter B. “Can Federal Courts Remain Open When State Courts Are Closed? Erie R. Co. v. Tompkins on the Reservation.” North Dakota Law Review 52 (Summer 1976): 647–83. In the case Poitra v. Demarrias, the Eighth Circuit Court of Appeals properly applied the exercise of federal diversity jurisdiction despite the lack of state authority on the reservation in a civil suit. 2231. La Fontaine, Frank S. “Indian Property and State Judgment Executions.” Oregon Law Review 52 (Spring 1973): 313–24. A grocer on the Blackfeet Reservation attempted to collect a debt from several Native Americans and the state court ruled that the Blackfeet consented to state jurisdiction. The U.S. Supreme Court in Kennerly v.

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District Court (1971) strengthened the Willams v. Lee tribal sovereignty infringement test declaring that “the only way a state can acquire such jurisdiction is by congressional authorization.” This was a return to the days of Worcester. 2232. Laurence, Robert. “The Dominant Society’s Judicial Reluctance to Allow Tribal Civil Law to Apply to Non-Indians: Reservation Diminishment, Modern Demography and the Indian Civil Rights Act.” University of Richmond Law Review 30 (May 1996): 781–813. Tribes have no criminal jurisdiction over whites, but they can tax their activities. This situation reverses when a reservation is diminished, making the tribes subject to state jurisdiction. That leaves tribes with only civil jurisdiction over non-members and the right to self-govern their own members. 2233. LeBeau, Tracey A. “Reclaiming Reservation Infrastructure: Regulatory and Economic Opportunities for Tribal Development.” Stanford Law and Policy Review 12 (Spring 2001): 237–53. Regulation of utilities is part of self-governance and is one area where tribes and the federal governments can work together to increase tribal control over their reservation resources. 2234. Lenertz, Karen L. and Sandra Glass-Sirany. “State Regulatory Authority in Indian Country: State OSHA Jurisdiction.” Hamline Law Review 17 (Spring 1994): 447–75. As the courts move from inherent sovereignty to federal preemption to bar state regulatory authority on tribal lands, the balancing tests become more complex. Alternatives are congressional legislation enforcing OSHA standards over reservations or encouraging states to negotiate with tribes. 2235. Lynaugh, Thomas J. “Developing Theories of State Jurisdiction over Indians: The Dominance of the Preemption Analysis.” Montana Law Review 38 (Winter 1977): 63–96. Recent Supreme Court decisions are developing tribal jurisdictional standards that can be applied in Montana to determine whether the state has jurisdiction on the reservations. Stemming from the confusing infringement test rooted in Williams, and extending to Moe, the federal preemption theory still applies to determine the scope of state authority. 2236. McBride, Mike, III. “Oklahoma’s Civil-Adjudicatory Jurisdiction over Indian Activities in Indian Country: A Critical Commentary on Lewis v. Sac & Fox Tribe Housing Authority.” Oklahoma City University Law Review 19 (Spring 1994): 81–140.

In Lewis v. Sac & Fox Tribe Housing Authority, the Oklahoma Supreme Court overturned several past decisions and released some of the restraints necessary to determine the existence of a dependent Indian community. McBride lists six factors that the court needed to consider to determine the existence of a dependent tribal community. 2237. McFarland, Sean R. “Bankruptcy Court Jurisdiction over Tribal Creditors: Lower Brule Construction Co. v. Sheesley’s Plumbing & Heating Co.” American Indian Law Review 15, no. 2 (1990): 309–21. A tribal government’s creation of an economic entity does not mean that the entity also gains the protection of tribal sovereign immunity. Instead, the tribal business is subject to a bankruptcy court because broad economic interests take precedence over a tribe’s narrow interests in bankruptcy proceedings. 2238. Mackiel, Natalie M. “Walking the Straight and Narrow: Another Squeeze on Tribal Civil Jurisdiction over Nonmembers in Smith v. Salish Kootenai College.” Nebraska Law Review 83, no. 4 (2005): 1325–44. In 1981, the Supreme Court in Montana decided “that the inherent powers of an Indian tribe do not extend to the activities of nonmembers,” but tribes “retain inherent sovereign power to exercise some forms of civil jurisdiction over non-Indians” and the court developed tests that became known as the “Montana framework.” In a lawsuit that followed an accident, the legal battles reached the Ninth Circuit Court of Appeals where the court decided that the facts did not meet the Montana framework, thus narrowing tribal civil jurisdiction over nonmembers even more. 2239. Malone, S. Caroline. “Tribal Power over NonIndians: Tribal Courts at a Civil Crossroads: Twin City Construction Company v. Turtle Mountain Band of Chippewa Indians.” Arkansas Law Review 42, no. 4 (1989): 1027–52. The lower district court decision became law because the Eighth Circuit Court of Appeals was evenly split in this case that involved the authority of tribal court to exercise civil jurisdiction over non-Indians. The lower court determined that a tribal court does not have jurisdiction over a non-Indian in civil matters. 2240. Malone, Timothy R. and Bradley B. Furber. “Regulatory Jurisdiction over Nonmembers’ Land within Indian Reservations.” Natural Resources & Environment 7 (Spring 1993): 14–16, 54–55. Provides a background analysis of the Montana and Brendale decisions and concludes that future courts will follow a very narrow path when defining tribal power over non-members.

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2241. Marcus, Barry. “The Idaho Dredge and Placer Mining Protection Act: Placer Mining in National Forests and Federal Preemption.” Idaho Law Review 19 (Summer 1983): 553–75. Has a brief section on Snohomish County v. Seattle Disposal Co., noting that trust land is not subject to local zoning ordinances. 2242. Matthews, M. A. “Indian Law: The Pre-Emption Doctrine and Colonias de Santa Fe.” Natural Resources Journal 13 (July 1973): 535–45. The Supreme Court of New Mexico, in Sangre de Christo Development v. City of Santa Fe and Board of County Commissioners of Santa Fe, New Mexico, ruled in 1973 that the city has no control over the subdivision at Tesuque Pueblo. This decision reveals that Congress intended to prevent any city or county from exercising their zoning authority inside a reservation. Matthews challenges the court’s ruling, claiming that cities do have such authority inside reservations. 2243. Mattson, Yvonne. “Civil Regulatory Jurisdiction over Fee Simple Tribal Lands: Why Congress Is Not Acting Trustworthy.” Seattle University Law Review 27 (Spring 2004): 1063–1106. Comments on each justice of the Supreme Court and their analysis of Brendale, the Yakama Nation zoning case. The justices misread Montana upon which they based their decision in Brendale. Congress must accept its trust responsibility and pass corrective legislation in this area. 2244. Miller, Todd. “Easements on Tribal Sovereignty.” American Indian Law Review 26, no. 1 (2001–2002): 105–31. Commentary on Big Horn County Electric Cooperative v. Adams (Big Horn) in which the Crow tribe complained that a utility company had wrongly passed on a tribal utility tax to consumers. In a counterclaim the company disputed the tribe’s right to impose the tax. The Ninth Circuit court upheld the district court’s finding for the cooperative, extending the Strate decision’s logic about a highway easement through tribal land to power line easements. This decision strikes a blow to tribal sovereignty and will complicate future easement negotiations among tribes and energy providers. It is a “flawed interpretation of property law” and the tribe should have petitioned for certiorari to allow the Supreme Court to render a decision. 2245. Millhouse, Keith F. “California Supreme Court Survey.” Pepperdine Law Review 13, no. 1 (1985): 235–37.

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People ex rel. v. Naegele Outdoor Advertising Co. of California decided that state authority could not reach onto the reservation to make the tribe comply with state billboard regulations. 2246. “Minnesota’s Chippewas: Treaties and Trends.” Minnesota Law Review 39 (June 1955): 853–72. The most important assimilative legislation affecting the Minnesota tribal population was P.L. 280 that transferred criminal and civil jurisdiction to the state, except for Red Lake. Despite the passage of P.L. 280, there was not a complete federal withdrawal. 2247. Monro, James. “Constitutional Law: Cases: Indian Jurisdiction.” South Dakota Law Review 13 (Spring 1968): 460–63. The South Dakota Supreme Court, in Smith v. Temple, decided that the state can bar a tribal member with full citizenship from using state courts for settling disputes taking place on the reservation. 2248. Mundt, Karl E. “Indian Autonomy and Indian Legal Problems.” University of Kansas Law Review 15, no. 4 (1976): 505–11. The Assimilative Crimes Act invokes the appropriate state law for non-Indian offenders treating state law as a federal law. Criminal and civil authority rests with tribal courts. Williams, as well as financial concerns, make it difficult for states to assume jurisdiction over reservations. 2249. National American Indian Court Judges Association. Justice and the American Indian, Vol. 1: The Impact of Public Law 280 upon the Administration of Justice on Indian Reservations. Washington, DC: National American Indian Court Judges Association, 1974. Examines tribal views of that legislation and how the state of Washington administered reservation civil and criminal jurisdiction. The state had piecemeal jurisdiction and the tribal communities did not support P.L. 280. ICRA provided for tribal consent and Washington’s governor wanted to return jurisdiction to the tribes, but the legal question was did the governor have the power to do so? 2250. National Association of Attorneys General. Legal Issues in Indian Jurisdiction. The National Association of Attorneys General, Committee on the Office of Attorney General, 1976. Following a case law format, this publication provides chapters on the history of tribal jurisdiction questions. Chapters include P.L. 280, checkerboard reservations and jurisdiction problems, water rights, taxation, and environmental concerns. 2251. Olson, Thomas W. “Indians—State Jurisdiction Over Real Estate Developments on Tribal Lands.” New Mexico Law Review 2 (January 1972): 81–90.

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The conclusion of a long-term lease between a resort and Cochiti Pueblo in New Mexico forced the attorney general of New Mexico to file suit, claiming that this action was not proper. The U.S. district court dismissed the case because the state lacked authority. 2252. Parker, Alan R. “State and Tribal Courts in Montana: The Jurisdictional Relationship.” Montana Law Review 33 (Summer 1972): 277–90. In Kennerly v. District Court, the Supreme Court decided that absent states do not have jurisdiction over disputes inside reservations involving tribal members. This decision made the tribal court the forum for dispute resolution, yet the tribe may lack authority when a non-member interferes with a tribal ordinance. 2253. Pendleton, Jean. “Iowa Mutual Insurance Co. v. LaPlante and Diversity Jurisdiction in Indian Country: What If No Forum Exists?” South Dakota Law Review 33 (Summer 1988): 528–45. Tribal member Edward LaPlante was injured in a trucking accident on the Blackfeet Reservation and sued Iowa Mutual in tribal court. The Supreme Court ruled tribal courts have the authority to exercise civil jurisdiction, but the court ordered the tribes to insure a proper forum, or leave the forum issue for Congress to determine. 2254. Person, Louis D., II. “Jurisdiction: Public Law 280— Local Regulation of Protected Indian Lands.” American Indian Law Review 6, no. 2 (1978): 403–15. The Ninth Circuit Court of Appeals has been hearing reservation land regulatory cases, which have been complicated by P.L. 280. In Santa Rosa, the court made a stand by adapting the law’s language stating that state laws have no application on reservations. 2255. Pipestem, F. Browning. “The Journey from Ex Parte Crow Dog to Littlechief: A Survey of Tribal Civil and Criminal Jurisdiction in Western Oklahoma.” American Indian Law Review 6, no. 1 (1978): 1–80. From 1890 forward, congressional statutes and legal doctrines that apply to all tribes may or may not apply to the tribes of Oklahoma. From statehood forward, the tribal and federal laws became even more complex and interwoven with state law. The U.S. has recognized western Oklahoma tribes’ sovereignty, and state encroachment is serious. 2256. Pommersheim, Frank. “The Crucible of Sovereignty: Analyzing Issues of Tribal Jurisdiction.” Arizona Law Review 31, no. 2 (1989): 329–63. In National Farmers Union and Iowa Mutual, insurance companies tried to remove themselves from

tribal courts by appealing to federal courts. The federal courts ordered the cases back to tribal court. Despite these two civil victories, the Supreme Court has been willing to follow the Oliphant vision of circumstance. 2257. Pritchett, L. Bow, Jr. “Problems of State Jurisdiction over Indian Reservations.” De Paul Law Review 13, no. 1 (1963–1964): 74–98. States have renewed efforts to extend their authority onto reservations that are under tribal-federal sovereignty. Tribes will rely on the Metlakatla decision, and recent favorable human rights decisions affecting tribal governments, to prevent state encroachment. 2258. Ragsdale, John W., Jr. “Treaty-Based Exclusions from the Boundaries and Jurisdictions of States.” UMKC Law Review 71 (Summer 2004): 763–808. Examines the Oyler’s contention that Lot 206 is treaty-based and therefore Johnson County, Kansas, has no jurisdiction over their activities on this land, including the regulation of fireworks sales. The district court agreed. 2259. Ransom, Richard E. and William G. Gilstrap. “Indians—Civil Jurisdiction in New Mexico—State, Federal and Tribal Courts.” New Mexico Law Review 1 (January 1971): 196–214. Overview of civil suits involving Indians in New Mexico and how authority is determined among the tribal, state, and federal courts. 2260. Reed, Melanie. “Native American Sovereignty Meets a Bend in the Road: Difficulties in Nevada v. Hicks.” Brigham Young University Law Review 2002, no. 1 (2002): 137–74. The defendant asserted his right to prevent state officials from searching his Fallon Paiute-Shoshone home, but the high court dismissed the case from tribal court, thus diminishing tribal sovereignty and expanding state authority on the reservation. This case moves away from the Montana land test, making it more difficult for tribes to assert authority over non-members. 2261. Reynolds, Laurie. “Adjudication in Indian Country: The Confusing Parameters of State, Federal, and Tribal Jurisdiction.” William and Mary Law Review 38 (January 1997): 539–603. Since Williams v. Lee, the Supreme Court has developed tests for tribal courts to follow in determining their authoritative boundaries. Instead of identity-based boundaries, there should be a reconceptualization of court decisions to create an authoritative foundation for tribal courts. 2262. Reynolds, Laurie. “‘Jurisdiction’ In Federal Indian Law: Confusion, Contradiction, and Supreme Court

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Precedent.” New Mexico Law Review 27 (Spring 1997): 359–420. Tribal courts have received more support in recent years, but tribal jurisdictional authority is still not respected, as Oliphant illustrates. Non-Indian resistance to tribal courts forces lower federal courts to interpret the extent of a tribal court’s authority. The high court should open the door wider for tribal courts, as National Farmers Union did, and expand tribal sovereignty. 2263. Reynolds, Osborne M., Jr. “Agua Caliente Revisited: Recent Developments as to Zoning of Indian Reservations.” American Indian Law Review 4, no. 2 (1976): 249–67. Considers P.L. 280’s effect on tribal zoning authority over non-Indians. Despite the uncertainty of that legislation, the author supports the involvement of tribal governments in reservation zoning. 2264. Reynolds, Osborne M., Jr. “Indians-ReservationsFederal Jurisdiction Ended Only by Express Provisions of Congress—Seymour v. Superintendent, Wash. State Penitentiary.” Arizona Law Review 5 (Fall 1963): 131–35. Federal–tribal–state jurisdiction relationships bar states from any jurisdiction on reservations unless Congress expressly opens the door. The court followed the existing law in Seymour even though the Colville Reservation was allotted and lands sold. Congress created this situation through legislation and must resolve it through legislation. 2265. Reynolds, Osborne M., Jr. “Zoning the Reservation— Village of Euclid Meets Agua Caliente.” American Indian Law Review 2 (Winter 1974): 1–16. Describes tribal governments’ powers and status as akin to cities and towns. Zoning is an important issue for both reservations and cities so tribes should be included in the planning process. 2266. Rhonda, James. “Red and White before the Bench: Indians and the Law in Plymouth Colony, 1620–1691.” Essex Institute Historical Collections 110 (1974): 200–15. The first treaty between American Indians and Pilgrims contained a proviso placing all disputes under Plymouth jurisdiction. Racial attitudes blended into English law were used to control and exploit tribal people. 2267. Rogers, Carl Bryant. “Zoning: A Rebuttal to ‘Village of Euclid Meets Agua Caliente.’” American Indian Law Review 4, no. 1 (1976): 141–68. Reservations need zoning ordinances. The right to draft and enforce reservation-zoning ordinances lies with the tribal government because of the

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tribe’s inherent sovereignty. The U.S. is supporting this idea. 2268. Rosen, Deborah A. “Colonization through Law: The Judicial Defense of State Indian Legislation, 1790–1880.” American Journal of Legal History, 46 (January 2004): 26–54. Examines state civil and criminal authority over tribal affairs and state efforts to colonize tribes. 2269. Royster, Judith V. “Of Surplus Lands and Landfills: The Case of the Yankton Sioux.” South Dakota Law Review 43, no. 2 (1998): 283–314. The Supreme Court’s strict interpretation of a tribal government’s civil and regulatory powers on allotted reservations as defined in Montana moved to South Dakota. The high court in Montana reduced tribal control to only enrolled members and that eliminated the tribe’s regulatory control over non-Indians seeking to build a landfill within the 1858 borders of the Yankton Reservation. 2270. Schlosser, Thomas P. “Tribal Civil Jurisdiction over Nonmembers.” Tulsa Law Review 37 (Winter 2001): 573–602. For two centuries, the nation recognized tribal nations as distinct sovereigns, but the court departed in 1973 with McClanahan v. Arizona State Tax Commission, warning that sovereignty was changing, and that trend continued with Oliphant. On the other hand, ICWA and the Indian Self-Determination and Education Assistance Act provide strong congressional statements for defending tribal civil authority over non-members. 2271. Scott, Jane E. “Zoning: Controlling Land Use on the Checkerboard: The Zoning Powers of Indian Tribes After Montana v. United States.” American Indian Law Review 10, no. 1 (1982): 187–209. The Supreme Court used race in Oliphant and Montana to reduce tribal sovereignty. On the other hand, tribal regulation of land use and zoning is not race based. Instead zoning regulations protect the well being of an entire community making it imperative that tribes have zoning authority over fee lands on checkerboard reservations. 2272. “Service of Process on Indian Reservations.” Arizona Law Review 18, no. 3 (1976): 741–56. IRA tribal governments do not have full control over their affairs and state court decisions make this jurisdictional maze more confusing. Some courts have ruled that states have personal service obligations to tribal members. Others take the opposite approach, which occurred in Francisco v. State, decided in 1976 by the Arizona court. Since the deputy who served notice on the Papago (Tohono O’odham)

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executive order reservation had no jurisdiction, the case was dismissed. 2273. Sherick, Steve Paul. “State Jurisdiction over Indians as a Subject of Federal Common Law: The Infringement-Preemption Test.” Arizona Law Review 21, no. 1 (1979): 85–110. When state courts assume civil jurisdiction over a reservation conflict, another conflict arises because the state court is challenging tribal autonomy and sovereignty. The state court must prove through the infringement test that it is not stepping on tribal sovereignty or taking any actions federal authority prohibits. 2274. Skibine, Alex Tallchief. “Making Sense out of Nevada v. Hicks: A Reinterpretation.” St. Thomas Law Review 14 (Winter 2001): 347–71. A tribal member of the Fallon Paiute-Shoshone filed suit in tribal court against Nevada because of a state game warden’s illegal search. Since tribes are part of the federal system, the Supreme Court limited tribal sovereignty by allowing the state to serve a search warrant on a reservation without examining the factual evidence. 2275. Sonosky, Marvin J. “State Jurisdiction over Indians in Indian Country.” North Dakota Law Review 48 (Summer 1972): 551–59. Review essay examining early state efforts to extend authority into Indian Country through land allotments and surplus land acts that diminished reservations. Includes a jurisdictional test based on “tribal autonomy” that can be applied to determine if Indian Country is subject to state authority. 2276. Sturve, Catherine T. “How Bad Law Made a Hard Case Easy: Nevada v. Hicks and the Subject Matter Jurisdiction of Tribal Courts.” University of Pennsylvania Journal of Constitutional Law 5 (January 2003): 288–317. There are a number of important legal concepts associated with Hicks, but Sturve focuses on one: the contention that tribal courts lack subject matter jurisdiction to hear claims against state officials under federal statutes. 2277. Sullivan, John F. “State Civil Power over Reservation Indians.” Montana Law Review 33 (Summer 1972): 291–306. Many states have disclaimers prohibiting state authority from extending to reservations. This disclaimer also provided the Supreme Court the opportunity in Kennerly to reverse the Montana Supreme Court’s recognition of state civil authority on reservations to collect a debt.

2278. Thorington, Nancy. “Civil and Criminal Jurisdiction over Matters Arising in Indian Country: A Roadmap for Improving Interaction among Tribal, State and Federal Governments.” McGeorge Law Review 31 (Summer 2000): 973–1042. Historical and legal overview of civil and criminal jurisdiction on reservations and the developing tensions among three sovereigns. Discusses different legal scenarios that can affect which court has subject matter jurisdiction. 2279. Trentadue, Jesse C. The Role of Indian Tribal Courts in the Collection of Business Debts: Tool or Bane of Local Business? Bureau of Business and Economic Research, University of North Dakota, April 1985. Tribal courts operate outside of state courts, but these courts are often limited to Indian debtor collection and lack authority over non-Indians. 2280. Ujke, David Michael. “State Regulation of Lake Superior Chippewa Off-Reservation Usufructuary Rights: Lac Courte Oreilles Band of Chippewa Indians v. Wisconsin.” Hamline Law Review 11 (Spring 1988): 153–81. Since 1978, Wisconsin has challenged Chippewa off-reservation property rights. The district court ruled in favor of state-imposed regulations for conservation purposes. This ruling violates the supremacy clause. 2281. Valencia-Weber, Gloria. “Shrinking Indian Country: A State Offensive to Divest Tribal Sovereignty.” Connecticut Law Review 27 (Summer 1995): 1281–322. In Oklahoma Tax Commission v. Sac and Fox, the Supreme Court ruled, “distinctions based on geographical characteristics of land and on membership status and residency should eviscerate tribal sovereignty in favor of the states.” The court accepted part of Oklahoma’s argument and removed some people and land from tribal jurisdiction. 2282. Waldmeir, Peter W. “Local Land Use Regulations as State Civil Law: An Analysis of the Santa Rose Court’s Interpretation of Public Law 280.” Tulsa Law Journal 12, no. 3 (1977): 425–86. After passing P.L. 280, Kings County, California applied its land use regulations to the tribal lands. The Ninth Circuit Court of Appeals decided that the county had stretched the language of P.L. 280 and Congress’s intended scope of civil jurisdiction. Waldmeir concludes that the court reached a contrary conclusion based on the legislative history of P.L. 280.

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2283. Waters, James H. “State Lacks Jurisdiction over Abandoned Indian Minor—Federal Jurisdiction Exclusive.” Utah Law Review 7 (Spring 1961): 417–21. In re Colwash, the Supreme Court of Washington decided that federal jurisdiction prevailed over a minor abandoned on the Yakama Reservation, not the state. 2284. Widley, Julie L. “Indians—Constitutional Law— Interpretations of North Dakota’s Indian Civil Jurisdiction Act.” North Dakota Law Review 62, no. 4 (1986): 559–73. North Dakota accepted P.L. 280 and amended its constitution in 1958 to reflect this decision, but ICRA requires tribal consent before P.L. 280 can go into effect. This creates a conflict between state and federal statutes. 2285. Wilkinson, Charles. “Civil Liberties Guarantees When Indian Tribes Act as Majority Societies: The Case of the Winnebago Retrocession.” Creighton Law Review 21, no. 3 (1987–1988): 773–99. ICRA provided for the retrocession of jurisdiction from the states back to the tribes. Nebraska was one state that wanted to return jurisdiction to the Winnebago. The difficult task was undertaken and it ultimately fell short of the goal due to non-Indian resentment about tribal criminal jurisdiction over them by the tribe.

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2286. Wilson-Hoss, Robert D. “Jurisdiction to Zone Indian Reservations.” Washington Law Review 53 (October 1978): 677–99. Tribal zoning authority extends to all reservation lands and is based on its inherent sovereignty. 2287. Wishart, David J. and Oliver Froehling. “Land Ownership, Population, and Jurisdiction: The Case of the Devils Lake Sioux Tribe v. North Dakota Public Service Commission.” American Indian Culture and Research Journal 20, no. 2 (1996): 33–58. Discusses a case that involved a tribal–state dispute over who had authority to regulate public utilities on reservation land. The authors contend that the case threatened tribal sovereignty. 2288. Wright, J. Bart. “Tribes v. States: Zoning Indian Reservations.” Natural Resources Journal 32 (Winter 1992): 195–206. Two non-Indian residents of the Yakima Reservation obtained county building permits, and the Yakima tribe sued, claiming authority over zoning matters despite the checkerboard landholding patterns. The Supreme Court, in Brendale v. Confederated Tribes & Bands of Yakama Indian Nation (1989), restricted the tribe’s power to regulate nonIndian building on fee lands.

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2289. Abourezk, James G. “South Dakota Indian Jurisdiction.” South Dakota Law Review 11 (Winter 1966): 101–18. Defines the limits of different sovereigns’ authority regarding prosecution of crimes on reservations.

which many opponents of cross-deputization describe as colonialism. 2294. Barsh, Russel Lawrence. “Kennedy’s Criminal Code Reform Bill and What It Doesn’t Do for Tribes.” American Indian Journal 6 (March 1980): 2–15. Senator Edward Kennedy supported legislation reforming the federal criminal code. The Senate Judiciary Committee initially included an amended “Indian Affairs Crime Act.” Some reservations have as many as six jurisdictional levels, making it easy for conflicts over jurisdiction to arise. This bill only makes the matter worse, preventing tribes from assuming any criminal control over non-Indians on the reservation.

2290. Adams, K. Bliss. “Order in the Courts: Resolution of Tribal/State Criminal Jurisdictional Disputes.” Tulsa Law Journal 24 (Fall 1988): 89–116. A forum is needed to resolve state–tribal criminal conflicts in Oklahoma through the development of state–tribal agreements. 2291. American Indian Lawyer Training Program. An Introduction to Criminal Jurisdiction in Indian Country. Oakland, CA.: American Indian Lawyer Training Program. Monograph Series, 1981. Handbook designed for tribal governments to understand their authority in the area of criminal jurisdiction. Criminal jurisdiction requires that tribal territory and who is an Indian be defined, and the role of non-Indians in either committing or being a victim of a crime has to be explained.

2295. Barsh, Russel Lawrence and James Youngblood Henderson. “The Betrayal: Oliphant v. Suquamish Indian Tribe and the Hunting of the Shark.” Minnesota Law Review 63 (April 1979): 609–40. Criticizes the Supreme Court’s Oliphant decision prohibiting tribal jurisdiction over non-Indians for crimes committed on the reservation. This precedent may be extended to civil matters and damages the tribal judiciary. The court appears unreasonable in its construction of tribal rights, but is also guilty of poor judicial legal construction.

2292. “Attorney General’s Opinions.” Mississippi College Law Review 1, no. 4 (1980): 483–509. An included opinion outlines the state’s inability to enforce criminal laws on the Mississippi Band of Choctaw’s lands.

2296. Berger, Bethany R. “‘Power over This Unfortunate Race’: Race, Politics and Indian Law in United States v. Rogers.” William and Mary Law Review 45 (April 2004): 1957–2052. Decided in 1846, Justice Taney ruled that the U.S. had authority to prosecute William Rogers for violating the 1834 Trade and Intercourse Act by killing a white man, though both were considered part of the Cherokee Nation. Race surfaced again in Oliphant in 1978, illustrating that judges continue to employ race to reduce tribal sovereignty.

2293. Barker, Michael L. and Kenneth Mullen. “CrossDeputization in Indian Country.” Police Studies: The International Review of Police Development 16 (Winter 1993): 157–66. Tribal officers are not strong defenders of crossdeputization. They argue that they must enter into agreements with the state to preserve law and order. The need for such agreements stems from Oliphant,

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2297. Berger, Bethany R. “United States v. Lara as a Story of Native Agency.” Tulsa Law Review 40 (Fall 2004): 5–24. Examines the background behind Duro and Congress’s decision to authorize tribal governments to prosecute nonmember Native Americans for criminal acts. The Lara decision upholds the congressional fix and expands tribal sovereignty for the first time in many years, meaning that plenary power can become more compatible with tribal sovereignty. 2298. Berkey, Curtis G. “Indian Law—Indian Tribes have no Inherent Authority to Exercise Criminal Jurisdiction over Non-Indians Violating Criminal Laws within Reservation Boundaries—Oliphant v. Suquamish Indian Tribe.” Catholic University Law Review 28 (Spring 1979): 663–87. The Supreme Court ignored the body of case law that recognized the inherent sovereignty of tribal nations over people and property within their territory. The tribe’s status as subjugated peoples is not consistent with their ability to exercise criminal jurisdiction over non-Indians. The court also ignored legislative and treaty interpretations to reach this conclusion. 2299. Birdzell, Douglas. “Criminal Law—Indians—Statutory Rape Not a Basis for Jurisdiction under Ten Major Crimes Act.” North Dakota Law Review 30 (January 1954): 54–56. A rape occurred on the Menominee Reservation in Wisconsin and since the crime was outside the expressed ten major crimes, the federal government had no authority to prosecute the accused. The presence of different tribal, state, and federal jurisdictions create considerable latitude in punishment. 2300. Bohlman, Bruce E. “Indians—Crimes by Indians out of Indian Country or Reservation—Jurisdiction of State to Arrest Indian on the Reservation.” North Dakota Law Review 45 (Spring 1969): 430–40. Fourneir v. Roed dealt with an enrolled tribal member who committed a crime off the reservation. The North Dakota Supreme Court, on a writ of habeas corpus, ruled that the state had authority to arrest the alleged felon for the offense. 2301. Bozarth, Bonnie. “Public Law 280 and the Flathead Experience.” Journal of the West 39 (Summer 2000): 46–53. Explains why the Confederated Salish and Kootenai tribes voluntarily accepted the application of P.L. 280 in 1965, and then “almost immediately” tried to withdraw consent. The tribes stated that their inability to provide sufficient law enforcement necessitated that they temporarily accept P.L. 280. The tribes succeeded in regaining jurisdiction over misdemeanors, but did not attain this partial victory until 1993.

2302. Bradford, William. “‘Another Such Victory and We Are Undone’: A Call to an American Indian Declaration of Independence.” Tulsa Law Review 40 (Fall 2004): 71–135. Those who defend tribal sovereignty, based on Lara, should be cautious, because “plenary power and Indian tribal sovereignty are mutually exclusive.” Lara obscures the evils of federal Indian law. 2303. Carr, Allen Lane and Stanley M. Johanson. “Extent of Washington Criminal Jurisdiction over Indians.” Washington Law Review and State Bar Journal 33 (Summer 1958): 289–302. A 1956 Washington Supreme Court decision, In re Andy, determined that, since a crime was committed on the Yakama Reservation, the state had no authority. The Washington Constitution hindered the state’s efforts to assume jurisdiction under P.L. 280 because the constitution disclaimed any authority over Indians. The best thing to do is to amend the state constitution and assume jurisdiction over reservations. 2304. Chaney, Christopher B. “The Effort of the United States Supreme Court’s Decision during the Last Quarter of the Nineteenth Century on Tribal Criminal Jurisdiction.” BYU Journal of Public Law 14, no. 2 (2000): 173–89. Describes the high court’s decisions affecting tribal criminal jurisdiction on reservations. Oliphant should be overturned to improve public safety. 2305. Christoffel, Gregory J. “Indian Tribal Courts— Jurisdiction—Navajo Tribal Court Jurisdiction over Non-Indian Defendants.” St. Louis Law Journal 18 (Spring 1974): 461–73. Traces the evolution of tribal courts and their authority to prosecute non-Indian defendants beginning with Ex Parte Kenyon (1878), and then focuses on the Navajo appellate court that ruled that the tribal trial court had the authority to prosecute a nonIndian. 2306. Clinton, Robert N. “Criminal Jurisdiction over Indian Lands: A Journey through a Jurisdictional Maze.” Arizona Law Review 18, no. 3 (1976): 503–83. Despite only a few federal statutes pertaining to reservation criminal jurisdiction, there are several law enforcement problem areas: defining what is Indian Country, who is an Indian, and whether Federal statutes affecting the nation as a whole apply to tribal lands. There are also many exceptions that pertain to tribal lands, such as the Assimilative Crimes Act and Federal Major Crimes Act that forces federal jurisdiction over tribal members on the reservation.

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2307. Clinton, Robert N. “Development of Criminal Jurisdiction Over Indian Lands: The Historical Perspective.” Arizona Law Review 17, no. 4 (1975): 951–91. Legislative and court rulings created complex legal conflicts between states and tribes. Congress reduced tribal home rule and states have worked to control people and resources. This process began in the nineteenth century and the language of the past continues.

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The Department of Interior Solicitor wrote in 1970 that tribes possess no criminal jurisdiction over nonIndians. Yet, Quechan Tribe v. Rowe and OrtizBarraza v. United States upheld tribal authority over non-Indians claiming an inherent right of sovereignty.

2308. Collins, Richard B. “Implied Limitations on the Territorial Jurisdiction of Indian Tribes.” Washington Law Review 54 (June 1979): 479–529. Oliphant has few teeth when extended to nonmembers. The court used selective and inaccurate precedents and this decision is not consistent with the court’s past dealings with tribes.

2313. Dowling, Thomas F. “Criminal Jurisdiction over Indians and Post-Conviction Remedies.” Montana Law Review 22 (Spring 1961): 165–75. Overview of state criminal jurisdiction over tribal members on reservations that discusses the Major Crimes Act, the Assimilative Crimes Act and Williams v. United States, as well as P.L. 280. An amendment to the Montana constitution would be necessary for the state to assume criminal jurisdiction over reservations and tribal members.

2309. Colton, Milo, “Self-Determination and the American Indians: A Case Study.” St. Mary’s Law Review on Minority Issues 4 (Fall 2001): 1–35. Self-determination is an international human right and the Winnebago of Nebraska have struggled to achieve it. P.L. 280 mandated that reservation civil and criminal jurisdiction be transferred to the state of Nebraska. The tribe at first refused retrocession of jurisdiction because they lacked the internal structures to accept this responsibility. The tribe rebuilt its law and order institutions and, after a long battle, the state of Nebraska retroceded law and order to the tribe.

2314. DuMars, Charles T. “Indictment under the ‘Major Crimes Act’—An Exercise in Unfairness and Unconstitutionality.” Arizona Law Review 10 (Winter 1968): 691–705. Few if any Navajos are selected for juries since many do not vote in state elections. They receive greater punishments than non-Indians, thus creating an equal protection problem. The solutions include terminating federal jurisdiction over Indian Country, and making sure that all the states that share jurisdiction claims have the same punishment for the same crime committed off the reservation.

2310. Crawford, G. D. “Looking Again at Tribal Jurisdiction: ‘Unwarranted Intrusions on Their Personal Liberty.’” Marquette Law Review 76 (Winter 1993): 401–38. As reservation land became checkerboarded, tribal policing authority diminished. ICRA forced tribal courts to resemble non-tribal courts and the Oliphant and Duro decisions were signals for Congress to delegate criminal jurisdiction over all persons within the reservation boundaries.

2315. Erhart, Karl Jeffery. “Jurisdiction over Nonmember Indians on Reservations.” Arizona State Law Journal 1980, no. 3 (1980): 727–56. Treaty language and federal statutes claim that nonmember Native Americans residing on reservations should be treated like nontribal members. Membership, not racial identity, is the key to determining the authority of tribal criminal jurisdiction, thus making nonmember tribes subject to the same federal, state, and tribal laws as non-Indians.

2311. Cubberley, Douglas B. “Criminal Jurisdiction over Nonmember Indians: The Legal Void after Duro v. Reina.” American Indian Law Review 16, no. 1 (1991): 213–46. Historically tribes had authority over non-member Indians that extended into the twentieth century and even included extradition powers. Duro was an extension of the Oliphant. The decision reveals the Supreme Court’s dislike of tribal authority, which forces tribes to seek relief in Congress.

2316. Fabish, Peter. “The Decline of Tribal Sovereignty: The Journey from Dicta to Dogma in Duro v. Reina.” Washington Law Review 66 (November 1991): 567–86. The Supreme Court followed Oliphant and further reduced tribal sovereignty, prohibiting tribal courts from prosecuting non-member tribal Indians. This created both a jurisdictional gap and an equal protection problem on the reservations.

2312. Dillsaver, Joe D. “Land Use: Exclusion of NonIndians from Tribal Lands—An Established Right.” American Indian Law Review 4, no. 1 (1976): 135–40.

2317. Factor, Kenneth. “Tightening the Noose on Tribal Criminal Jurisdiction: Duro v. Reina.” Tulsa Law Journal 27 (Winter 1991): 225–45. The Supreme Court again struck at tribal sovereignty, denying tribal courts the authority to prosecute

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non-member Indians for criminal acts committed on the reservation. The courts and Congress should restore tribal rights. 2318. Flowers, Ronald B. Criminal Jurisdiction Allocation in Indian Country. Port Washington, NY: Associated Faculty Press, 1983. The extent of tribal sovereignty is examined beginning with international law, noting that tribal land cessions have eliminated tribal international sovereignty. In other areas, such as civil rights, sovereign immunity, and self-determination, the tribes do have sovereignty. 2319. Gaebler, Helen A. “The Legislative Reversal of Duro v. Reina: A First Step toward Making Rhetoric A Reality.” Wisconsin Law Review, no. 6 (1991): 1399–1426. With Oliphant, the Supreme Court restricted tribal criminal authority to Indians, and then restricted it further to member Indians in Duro. Finally Congress stopped this erosion of tribal sovereignty by amending ICRA in 1990, restating tribal authority over nonmember Indians. 2320. Garry, William C. “Jurisdictional Confusion on the Cheyenne River Indian Reservation—United States v. Dupris.” South Dakota Law Review 25 (Spring 1980): 355–71. Arrested for burglary, Dupris argued that Eagle Butte, the location of the crime, had lost its status as Indian Country. The Eighth Circuit Court of Appeals ruled otherwise, noting that the 1908 act that opened the reservation to homesteading did not diminish the reservation boundaries. 2321. Gould, L. Scott. “The Congressional Response to Duro v. Reina: Compromising Sovereignty and the Constitution.” U.C. Davis Law Review 28 (Fall 1994): 53–139. The Duro decision took Oliphant one more step, denying tribal court jurisdiction to prosecute nonmember Indians for criminal offenses. Congress then amended ICRA in the early 1990s, placing non-member Indians under tribal jurisdiction on the reservation where they were accused of committing the crime. The courts should overturn Duro and pursue “a compromise of sovereigns: a dual court system in which both the rights of Indian groups and the rights of individuals can be protected.” 2322. Gubler, Brent H. A Constitutional Analysis of the Criminal Jurisdiction and Procedural Guarantees of the American Indian. Saratoga, CA: R and E Research Associates, 1974. Tribal criminal jurisdiction questions result from whether authority lies with the federal, state, or tribal

governments. Because Native Americans are mentioned so little in the Constitution, the courts have given the national government an increased role in tribal affairs. This maze of criminal jurisdiction has not given tribal people a rational system of criminal law. 2323. Gunn, Steven J. “Respondents’ Brief—Reargument of Oliphant v. Suquamish Indian Tribe.” Kansas Journal of Law & Public Policy 13 (Fall 2003): 97–123. The U.S. Supreme Court should affirm the Oliphant decision, because the tribe’s constitution omits any language for providing the tribe criminal jurisdiction over non-tribal members. 2324. Gurich, Noma D. and R. Steve Haught. “Criminal Jurisdiction Over Indian Schools: Chilocco Indian School, An Example of Jurisdictional Confusion.” American Indian Law Review 6, no. 1 (1978): 217–29. Since 1950, state officials would not assist school administrators when they needed police assistance because officials considered it under federal control. The reality is that the school is not Indian Country, but is proprietary and the state has concurrent jurisdiction with the federal government. 2325. Harper, Keith and Tracy A. Labin. “Brief for the Appellant.” Kansas Journal of Law & Public Policy 10 (Spring 2001): 419–49. In retrying Kagama in a moot trial, the counsel for the appellant argues that the U.S. has a trust responsibility that protects tribal sovereignty. 2326. Harring, Sidney L. “Crow Dog’s Cases: A Chapter in the Legal History of Tribal Sovereignty.” American Indian Law Review 14, no. 2 (1986): 191–239. This case is remembered for many of the wrong reasons, including the eventual passage of the Major Crimes Act, and as an attack on tribal jurisprudence. The key strength of this act is its strong statement of tribal sovereignty. 2327. Harvey, Elizabeth. “The Aftermath of Duro v. Reina: A Congressional Attempt to Reaffirm Tribal Sovereignty through Criminal Jurisdiction over Nonmember Indians.” Thomas M. Cooley Law Review 8, no. 3 (1991): 573–607. Albert Duro, a Torres-Martinez Band of Cahuilla Mission Indian killed Phillip Fernando, an enrolled Gila River tribal member, on the Gila River Reservation. The district court dismissed the case, deciding that tribal prosecution would violate ICRA’s equal protection guarantees and that prosecuting a nonmember Indian, as in Oliphant, would constitute racial discrimination. This decision was reversed on appeal and the Supreme Court reversed again, deny-

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ing tribal courts the authority to prosecute non-member Indians. Congress enacted legislation permitting tribes’ authority to prosecute non-member Indians. Congress may have created discrimination in the Duro Fix legislation. 2328. Hatch, Mike, Sean R. McCarthy, and Jerilyn A. Hanold. “Brief for the Respondent.” Kansas Journal of Law & Public Policy 10 (Spring 2001): 451–64. The respondent’s attorneys in this moot retrial of Kagama request that the original decision be affirmed. 2329. Heisey, Geoffrey C. “Oliphant and Tribal Criminal Jurisdiction over Non-Indians: Asserting Congress’s Plenary Power to Restore Territorial Jurisdiction.” Indiana Law Journal 73 (Summer 1998): 1051–78. Prior to Oliphant, only Congress could abrogate tribal powers. The Supreme Court decided “that tribal powers of self-government remain intact unless the Court can find an implicit congressional intention to take them away due to their trust relationship, the “unspoken assumption.” Since this decision provided an opening for non-Indians to commit non-prosecutable misdemeanors on reservations, Congress should use its plenary power to pass corrective legislation, giving tribal courts power to prosecute nonIndian members. 2330. Huddleston, Carol A. “Allocation of Criminal Jurisdiction in Indian Country—Federal, State and Tribal Relationships.” University of California, Davis Law Review 8 (1975): 431–52. Reservation criminal jurisdiction is complex as well as prejudicial. Criminal jurisdiction in Indian Country is divided between federal, state, and tribal authority based on the offender and victim’s race, the offense, and the offense’s location. This system has created an “inconsistent and complex body of law” and this division of authority has reduced tribal sovereignty. 2331. “Indian Law—Criminal Jurisdiction—Tribal Courts Have Criminal Jurisdiction over Non-Indians— Oliphant v. Schlie, cert. granted sub nom. Oliphant v. Suquamish Indian Tribe.” Brigham Young University Law Review, no. 3 (1977): 506–23. Port Madison Indian Reservation police charged Oliphant with resisting arrest and assaulting an officer. The trial court and Ninth Circuit Court of appeals held that non-Indians are under tribal authority. The Supreme Court decided to hear the case. 2332. “Indians—Actions—Jurisdiction of State—Deragon v. Sero.” Yale Law Journal 18 (March 1908): 366. This court ruling was contrary to the general rules permitting extension of state authority onto reservations for the sake of law and order.

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2333. Johnson, Steven M. “Jurisdiction: Criminal Jurisdiction and Enforcement Problems on Indian Reservations in the Wake of Oliphant.” American Indian Law Review 7, no. 2 (1979): 291–317. The Supreme Court ruled that a tribal government did not possess inherent tribal sovereignty to prosecute non-Indians for crimes committed on the reservation. To circumvent this ruling, tribal police could become federal agents or use their inherent powers to detain non-Indian offenders. S. 1181, the Tribal– State Compact Act of 1979, is a congressional attempt to resolve enforcement problems. 2334. “Jurisdiction over Crimes on Reservations.” Journal of Criminal Law and Criminology 40 (January– February 1950): 616–17. State ex rel. Olson v. Shoemaker was decided in 1949. The problem was that, in 1901, South Dakota ceded all jurisdiction over tribal lands to the U.S. The 1948 revised federal code brought all reservations under a single code despite tribal treaty differences and provided for federal jurisdiction when an Indian was involved in the crime. Since the state never accepted jurisdiction back, the non-Indian defendant argued that South Dakota could not prosecute. Instead of creating a no-man’s land, the court ruled, “a cession by the state of such territory is only until the particular power accepted by the federal government ceases to be exercised.” 2335. Kane, Albert E. “Jurisdiction over Indians and Indian Reservations.” Arizona Law Review 6 (Spring 1964–1965): 237–55. If the states assume more control over reservation law and order, tribal courts will lose jurisdiction over all but tribal matters. 2336. Kelly, T. Christopher. “Indians—Jurisdiction—Tribal Courts Lack Jurisdiction over Non-Indian Offenders.” Wisconsin Law Review, no. 2 (1979): 537–69. In deciding Oliphant, the Supreme Court used ambiguous evidence. The ruling is contrary to the notion of tribal self-determination and may create a gap in reservation law and order that may contribute to escalating crime. Congress must end its “persistence silence” on this matter. 2337. King, James Winston. “The Legend of Crow Dog: An Examination of Jurisdiction over Intra-Tribal Crimes Not Covered by the Major Crimes Act.” Vanderbilt Law Review 52 (October 1999): 1479–1525. In the twentieth century, the circuit courts of appeals have divided into two camps, the pro intratribal authority, and the federal authority to prosecute intra-tribal reservation crimes. This issue is gaining more importance as successful gaming tribes gain more economic power. If the courts apply William N.

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Eskridge’s model, this may eliminate this circuit court disparity in intra-tribal claims. 2338. Koons, Melvin E., Jr. and Hans C. Walker, Jr. “Jurisdiction over Indian Country in North Dakota.” North Dakota Law Review 36 (January 1960): 51–62. Discusses federal criminal jurisdiction over tribal communities in North Dakota, and questions the extent of federal civil jurisdiction. Also examines tribal courts and the extent of tribal court jurisdiction. 2339. Kuswa, M. Wesley. “Criminal Law—Jurisdiction— Indians.” Marquette Law Review 16 (November 1931): 57–59. The Wisconsin Supreme Court decided in State v. Rufus that, Indian treaties and enabling acts admitting states into the union were two possible prohibitions against the state extending authority over tribal members. The state was unable to prosecute the individual because the federal government claimed exclusive authority dating back to Marshall’s earlier cases. Now, with only limited federal protection, a crime went unpunished. 2340. La Fontaine, Frank S. “Criminal Jurisdiction over Non-Trust Lands within the Limits of Indian Reservations.” Willamette Law Review 9 (June 1973): 288–310. A common conflict on allotted reservations is who has criminal jurisdiction over non-trust lands. Tribes have authority over tribal members on fee lands and the state has control over non-members. Yet the Indian Country extinguishment cases would define ceded lands outside the scope of Indian Country. P.L. 280 adds another dimension. 2341. Larson, Jeff. “Oliphant v. Suquamish Indian Tribe— A Jurisdictional Quagmire.” South Dakota Law Review 24, no. 1 (Winter 1979): 216–42. The courts decided that state courts have authority to prosecute crimes committed in Indian Country between non-Indians. In other situations, federal–tribal authority prevails, but in this case, the Supreme Court destroyed a section of tribal sovereignty, denying tribal governments the authority to prosecute non-Indians for lesser crimes committed against Indians. Congress needs to pass corrective legislation. 2342. Laurence, Robert. “Civil Procedure in Low Earth Orbit: Science Fiction, American Indians and Federal Courts.” New Mexico Law Review 24 (Spring 1994): 265–83. The Supreme Court ruled in Ex parte Crow Dog that one tribesman murdering another was not a federal crime unless Congress makes it so. Congress made that offense part of the Major Crimes Act of 1885. The broadening of federal jurisdiction over

reservation tribal actions has continued to the present where Indians will bear the death sentence from a legislative body in which they have little representation. 2343. Laurence, Robert. “Don’t Think of a Hippopotamus: An Essay on First-year Contracts, Earthquake Predictions, Gun Control in Baghdad, the Indian Civil Rights Act, the Clean Water Act, and Justice Thomas’s Separate Opinion in United States v. Lara.” Tulsa Law Review 40 (Fall 2004): 137–53. Supreme Court Justice Thomas’s separate opinion in Lara is the subject of this essay that leads the reader to question Congress’s power and how that power affects tribal sovereignty. 2344. LaVelle, John P. “Petitioner’s Brief—Reargument of Oliphant v. Suquamish Indian Tribe.” Kansas Journal of Law & Public Policy 13 (Fall 2003): 69–95. Writing for the petitioner, LaVelle requests that the Supreme Court of the American Indian Nations reverse Oliphant and restore federal plenary recognition that tribal nations have “inherent sovereign power to exercise criminal jurisdiction over nonIndians.” 2345. Littlefield, Daniel F., Jr. and Lonnie E. Underhill. “The Trial of Ezekiel Proctor.” Chronicles of Oklahoma 48 (Autumn 1970): 307–22. This 1872 murder trial brought to greater attention an ongoing jurisdictional conflict between the U.S. District Court in Fort Smith and the Cherokee Nation courts. 2346. McCrary, Henry T. “Indians—Jurisdiction—Federal or State Courts.” Temple Law Quarterly 26 (Summer 1952): 93–96. A native defendant robbed a grocery store and the state of Montana prosecuted, claiming that the reservation land was the state’s jurisdiction since the federal government had ceded all rights. The State Supreme Court ruled in State ex rel. Irvine v. District Court of the Fourth Judicial District that states do not have the authority to prosecute the ten major crimes even if the crime takes place on state lands. Congress intended that federal authority would preempt the state’s efforts. The door was open prior to the 1948 legislation for state authority, but Congress closed that door with its 1948 amendments. 2347. McGoldrick, Susan M. “Criminal Jurisdiction: Jurisdiction to Sentence and Convict for Lesser Included Offenses under the Major Crimes Act: A Critical Assessment of the Keeble Legacy.” American Indian Law Review 12, no. 2 (1984): 219–44. The Supreme Court in Keeble ruled that the defendant had a “right to a jury instruction on lesser in-

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cluded offenses, even though the lesser offenses may not be crimes enumerated in the Major Crimes Act.” This practice keeps the federal courts involved in tribal jurisprudence. In reviewing this case, the courts have continued this practice without a statute and contrary to federal policy that encourages greater tribal control. 2348. Mackay, Greg P. “Indian Self-Determination, Tribal Sovereignty, and Criminal Jurisdiction: What about the Nonmember Indian.” Utah Law Review, no. 2 (1988): 379–409. The Ninth Circuit Court of Appeals decided in Duro v. Reina that tribal courts have criminal authority over non-member Indians who have “significant contacts” with the tribal community in a decision that had no precedent. This decision raises serious question concerning equal protection. 2349. Martin, S. Lee. “Indian Rights and the Constitutional Implications of the Major Crimes Act.” Notre Dame Lawyer 52 (October 1976): 109–35. Discusses the importance of the Major Crimes Act and subsequent amendments as codified thereby creating a situation where some tribal members are punished under state statutes while others are not. 2350. Martone, Frederick J. “Of Power and Purpose.” Notre Dame Lawyer 54 (June 1979): 829–45. The Supreme Court in Oliphant and Wheeler clarified the scope of tribal authority. The latter case mandates that tribal governments have criminal authority only over members, and that by extension includes civil authority. Only Congress can alter this reality through specific legislation. 2351. Maxfield, Peter C. “Oliphant v. Suquamish Tribe: The Whole is Greater than the Sum of the Parts.” Journal of Contemporary Law 19, no. 2 (1993): 391–443. Oliphant is one of the most important cases in Indian law “because of the cases it has spawned.” Maxfield is very critical of the high court’s ruling noting that they based “their assumption on congressional action rather than inherent and implied inconsistency with tribal actions.” 2352. Meisner, Kevin. “Modern Problems of Criminal Jurisdiction in Indian Country.” American Indian Law Review 17, no. 1 (1992): 175–207. The Supreme Court denied tribal government the authority to prosecute non-Indians for minor criminal offenses and then diminished tribal authority to prosecute non-member Indians in Duro, leaving tribes little more controlling power than over their own members. There are three means for tribes to expand criminal jurisdiction: extend the definition of mem-

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ber, develop extensive civil regulatory ordinances in place of criminal ordinances, and ban non-tribal members from their territory. 2353. Miller, Kathleen. “Indian Law—Indian Sovereignty and Tribal Jurisdiction over Non-Indian Offenders.” Washington Law Review 52 (October 1977): 989–1010. Reviews Oliphant in the Ninth Circuit Court of Appeals. This court upheld the tribe’s right to prosecute a non-member for criminal acts committed on the reservation—a decision that supported tribal sovereignty. 2354. Million, Dian. “Policing the Rez: Keeping No Peace in Indian Country.” Social Justice 27 (Fall 2000): 101–20. Tribal communities are prevented from implementing their controls to stop racism, while nonIndians freely discriminate because the U.S. does not protect the people that it polices. 2355. Misterek, Leon. “State Jurisdiction over Indian Country.” Washington Law Review and State Bar Journal 36 (Summer 1961): 156–61. State ex rel. Starlund v. Superior Court and State ex rel. Adams v. Superior Court reveal the ongoing conflict between the state of Washington and tribes over state efforts to gain criminal jurisdiction over reservations. The increased cost of assuming law and order dissuades some states from pursuing jurisdiction, but Washington does not have money issues. Most of the smaller tribes want the state to assume jurisdiction, except the Colville and Yakama. 2356. Mitchell, Carol A. “Oliphant v. Schlie: Tribal Criminal Jurisdiction of Non-Indians.” Montana Law Review 38 (Summer 1977): 339–56. The Ninth Circuit Court of Appeals, in Oliphant, refused a non-Indian’s request for a writ of habeas corpus. The court ruled that tribes have inherent sovereignty over non-Indians committing specific crimes, while other courts have sought statutory grants of criminal authority over non-Indians committing crimes on the reservation. 2357. Monette, Richard. “Indian Country Jurisdiction and the Assimilative Crimes Act.” Oregon Law Review 69, no. 2 (1990): 269–94. The web of three sovereign authorities on reservations stifles tribes’ abilities to attain true self-determination. Two federal statutes, the Assimilative Crimes Act, which fills jurisdictional gaps in federal facilities, and the Organized Crime Control Act fail to mention tribal nations and were part of the state’s defense in the California gaming cases Cabazon and Santa Ana. These two cases are an indirect affirmation that these

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laws apply to Indian Country. If this is the case, that “would abrogate tribal sovereignty in ways not expressly provided for, nor intended, by Congress.” 2358. Murphy, James E. “Jurisdiction: The McBratney Decisions—A Pattern of Inconsistency.” American Indian Law Review 3, no. 1 (1975): 149–57. McBratney established the rule that neither tribes nor the federal government had jurisdiction over a crime committed on a reservation when both victim and perpetrator were non-Indian. This provides for the intrusion of state authority onto reservations. 2359. Nash, Douglas R. and Christopher P. Graham. “‘The Importance of Being Honest’: Exploring the Need for Tribal Court Approval for Search Warrants Executed in Indian Country after State v. Mathews.” Idaho Law Review 38, no. 3 (2002): 581–95. Reviews the actions of state authorities who entered the Nez Percé reservation and arrested a tribal member for a crime committed outside the reservation. Before entering the reservation, state authorities should have consulted tribal judges. 2360. Newton, Nell Jessup. “Permanent Legislation to Correct Duro v. Reina.” American Indian Law Review 17, no. 1 (1992): 109–27. Pleas for Congress to address the Duro problem with corrective legislation. 2361. Noyes, Henry S. “A ‘Civil’ Method of Law Enforcement on the Reservation: In Rem Forfeiture and Indian Law.” American Indian Law Review 20, no. 2 (1995–1996): 307–63. In an attempt to regain control over non-Indian criminal offenders, tribal governments should enact rem forfeiture, a civil proceeding over non-Indians. 2362. Oliviero, Melanie Beth and Alex T. Skibine. “The Supreme Court Decision that Jolted Tribal Jurisdiction.” American Indian Journal of the Institute for the Development of Indian Law 6 (May 1980): 2–12. The Supreme Court should never have denied tribes the right to prosecute non-Indians for committing crimes in Indian Country. The court made a political decision, not a legal decision. Without congressional intervention, criminal jurisdiction problems will continue. 2363. Owen, Patricia. “‘Who Is an Indian?’ Duro v. Reina’s Examination of Tribal Sovereignty and Criminal Jurisdiction over Nonmember Indians.” Brigham Young University Law Review, no. 1 (1988): 161–82. The Ninth Circuit Court of Appeals recognized that a tribe must have jurisdiction over tribal people on the reservation. Oliphant’s limitations do not ap-

ply to Duro, and tribal criminal jurisdiction over nonmember Indians is justified. 2364. Polashuk, Stacie S. “Following the Lead of the Indian Child Welfare Act: Expanding Tribal Court Jurisdiction over Native American Juvenile Delinquents.” Southern California Law Review 69 (March 1996): 1191–1231. Discusses problems that might arise if tribal courts had authority over juveniles. ICRA’s application would insure fair trials and avoid any troubles. Federal courts should have habeas corpus review. Congress must continue to expand tribal court authority through ICWA. 2365. Porter, Robert B. “Decision from the American Indian Nations Supreme Court.” Kansas Journal of Law & Public Policy 10 (Spring 2001): 465–90. In this moot trial, the American Indian Nations Supreme Court returns United States v. Kagama to the federal district court to determine if the Hoopa tribe consented to federal authority on their reservation. 2366. Radon, Amy. “Tribal Jurisdiction and Domestic Violence: The Need for Non-Indian Accountability on the Reservation.” University of Michigan Journal of Law Reform 37 (Summer 2004): 1275–1312. Overworked federal prosecutors have jurisdiction over non-Indian offenders who commit crimes on reservations, and they often plea bargain domestic violence cases. This practice deprives the tribal community and women of justice. The tribe should assume authority to prosecute non-Indian sex offenders. 2367. Radtke, Derek P. “State Encroachment into Tribal Sovereignty by Means of the Assimilative Crimes Act.” Whittier Law Review 19, no. 3 (1998): 655–77. The Assimilative Crimes Act enables federal authorities “to enforce state law” for crimes not listed in the federal Major Crimes Act on reservations in nonP.L. 280 states. This act provides for the prosecution of non-Indians who commit crimes against Indians on the reservation. 2368. Rassier, Phillip J. “Legal Jurisdiction on Indian Lands: Authority in Transition.” Idaho Yesterdays 25 (Spring 1981): 60–67. A disclaimer in Idaho’s state constitution explicitly asserted federal control over Indian lands. Rassier explains how federal criminal jurisdiction on Indian lands has been applied in Idaho, and how P.L. 280 has modified state, federal, and tribal jurisdiction there. How the Indian/non-Indian status of the defendant and victim affects jurisdiction is considered, as is how the courts in the 1980 case of State v. Allan

Criminal Jurisdiction

dealt with a defendant from one reservation committing a crime on another. 2369. Reeve. Robert K. “Did the North Dakota Supreme Court Properly Decide State v. Hook?” North Dakota Law Review 68, no. 3 (1992): 695–725. The court decided that the state had limited criminal jurisdiction, contrary to the state constitution, the wishes of the people of Devils Lake Sioux Reservation, federal statutes, and past court decisions. 2370. Richards, Clinton G. “Federal Jurisdiction over Criminal Matters Involving Indians.” South Dakota Law Review 2 (Spring 1957): 48–58. Discusses the issues of who is an Indian and which authorities have jurisdiction to prosecute crimes committed in Indian Country. 2371. “The ‘Right of Tribal Self-Government’ and Jurisdiction of Indian Affairs.” Utah Law Review, no. 2 (1970): 291–301. Self-government is intended to make tribes less dependent on the U.S. and preserve their cultures, but the Ninth Circuit Court in Arizona ex rel. Merrill v. Turtle upheld Arizona’s extradition of an Indian and interfered in tribal self-rule. 2372. Rotenberg, Daniel L. “American Indian Tribal Death—A Centennial Remembrance.” University of Miami Law Review 41 (December 1986): 409–23. One hundred years ago, the Supreme Court unanimously decided that Congress could legislatively deny tribal nations their sovereignty in United States v. Kagama. In this case, the court upheld the 1885 Major Crimes Act and reduced tribes to “local dependent communities” and within the boundaries of the U.S. only the U.S. and the individual states were sovereigns. It is necessary to revisit Kagama. 2373. Royster, Judith V. “Oliphant and Its Discontents: An Essay Introducing the Case for Reargument Before the American Indian Nations Supreme Court.” Kansas Journal of Law & Public Policy 13 (Fall 2003): 59–68. “Tribes have no criminal jurisdiction over non-Indians,” but “[t]he impacts of Oliphant . . . have been wide-ranging and severe,” compromising reservation law and order, leading to the loss of sovereignty over lands, and starting the push toward diminished civil authority over non-Indians. 2374. Royster, Judith V. and Rory SnowArrow Fausett. “Fresh Pursuit onto Native American Reservations: State Rights ‘To Pursue Savage Hostile Indian Marauders across the Border.’” University of Colorado Law Review 59 (Spring 1988): 191–287.

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State authority on reservations is a source of conflict and to prevent further conflict, federal authorities claim preemption, but this doctrine protects neither tribe nor suspects. To correct this problem the authors propose a change from suspect rights to a focus on tribal sovereignty that would focus on injuries to tribal rights. 2375. Samuels, Richard A. “Tribal Court Criminal Jurisdiction over Non-Indians: Testing the Limits of Retained Sovereignty.” Cornell International Law Journal 13 (Winter 1980): 89–103. Inherent sovereignty is the bedrock for the evolution of tribal authority over non-Indians on reservations. Oliphant was an important decision that eroded that inherent authority. In this post Oliphant era, territorial and race-based theories of justice should be discarded in favor of an approach that places the inherent interests of the tribe against the federal courts’ interests. To do so, Congress should enact legislation identifying a forum for specific crimes. 2376. Seagle, William. “The Murder of Spotted Tail.” Indian Historian 3 (Fall 1970): 10–22. Story of Spotted Tail’s murder by Crow Dog, which prompted passage of the 1885 Major Crimes Act. This act restricted tribal sovereignty. 2377. Sentelle, David B. and Melanie T. Morris. “Criminal Jurisdiction on the North Carolina Cherokee Indian Reservation—A Tangle of Race and History.” Wake Forest Law Review 24, no. 2 (1989): 335–66. Overview of the creation of the Eastern Band of Cherokee North Carolina reservation, with a discussion of tribal jurisdiction that follows patterns of other reservations. The reservation is Indian Country, but there is a denial of equal protection based on tribal membership. 2378. Shadid, Todd. “Indian Criminal Justice System Clarified: Negonsott v. Samuels.” University of Kansas Law Review 42, Criminal Procedure Edition (1994): 91–112. In 1993, the Supreme Court brought to Kansas some clarity concerning reservation criminal jurisdiction in Negonsott. The court decided that the Kansas Act gave to the state criminal authority based on a broad construction of the act. Shadid supports this decision and is hopeful that all of Indian Country will have the same laws as the rest of the nation. 2379. Silvestro, Jo-Nell. “The Indian Crimes Act of 1976: Another Amendment to the Major Crimes Act—But How Many More to Come?” South Dakota Law Review 22 (Spring 1977): 407–30. An equal protection issue emerged in Indian Country and was the impetus for the 1976 amendment to

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the Major Crimes Act, but the amendment returns the law to a pre-ICRA position and recreates some new equal protection problems while resolving others. 2380. Skibine, Alex Tallchief. “Duro v. Reina and the Legislation That Overturned It: A Power Play of Constitutional Dimensions.” Southern California Law Review 66 (January 1993): 767–806. After Duro, Congress amended ICRA to permit tribal court prosecution of non-member Indians. This legislation was an affirmation of tribal inherent sovereignty and tribal leaders supported it as a necessity. 2381. [Skibine], Alex Tallchief. “Oliphant—the Aftermath.” American Indian Journal of the Institute for the Development of Indian Law 5 (November 1979): 17–20. This decision disrupted tribal law and order, forcing tribes to find solutions that included crossdeputization, state police certification of tribal police, and negotiating law and order agreements with states and counties. 2382. Skibine, Alex Tallchief. “United States v. Lara, Indian Tribes, and the Dialectic of Incorporation.” Tulsa Law Review 40 (Fall 2004): 47–70. Since adverse decisions like Oliphant, legal scholars have argued whether tribes have been or have not been incorporated into the federal system. Tribal “incorporation” and congressional “plenary power” conflict. Lara has moved tribal Americans toward becoming the “third sovereigns within the federal system.” 2383. Skibine, Alex Tallchief, Melanie Beth Oliviero, and Ed Fagan. “Potential Solutions to Jurisdictional Problems on Reservations.” American Indian Journal of the Institute for the Development of Indian Law 6 (June 1980): 9–14. In seeking to circumvent Oliphant, the authors support the legal principle that tribes possess inherent sovereignty to prosecute all reservation crimes. The Secretary of the Interior should accept individual tribal petitions recognizing tribal jurisdiction, and Congress should pass legislation allowing nonIndians to appeal tribal court decisions to another jurisdiction. 2384. Smith, Kyle B. “Oliphant v. Suquamish Indian Tribe: A Restriction of Tribal Sovereignty.” Willamette Law Review 15 (Winter 1978): 127–42. This Supreme Court decision came from left field, forcing one to question if it was an aberration from the general rules of federal Indian law construction. The decision weakened tribal law enforcement and diminished tribal sovereignty.

2385. Snyder-Joy, Zoann K. “Self-Determination and American Indian Justice: Tribal versus Federal Jurisdiction on Indian Lands.” In Ethnicity, Race, and Crime: Perspectives across Time and Place, 310–22. Albany: State University of New York Press, 1995. Federal intervention into tribal justice systems has damaged tribal sovereignty. Local control is a better option. 2386. Spruhan, Paul. “Case Note: Means v. District Court of the Chinle Judicial District and the Hadane Doctrine in Navajo Criminal Law.” Tribal Law Journal 1 (2000–2001): online. http://tlj.unm.edu/articles/ In 1997, on the Navajo Reservation, Oglala Russell Means had an altercation with a Navajo and his Omaha father-in-law. The Navajo prosecutor charged Means with several crimes, but he asked for a dismissal claiming the court lacked subject matter authority. The Navajo Supreme Court ruled he was a hadane, which is an in-law, and by Navajo common law had submitted to Navajo authority. The court relied on past federal cases where the U.S. had exercised jurisdiction over whites living on a reservation, notably U.S. v. Rogers. This case represents an extension of Navajo authority through tribal common law, but using that power over non-members worries the federal judiciary. 2387. Standefer, Amy J. “The Federal Juvenile Delinquency Act: A Disparate Impact on Native American Juveniles.” Minnesota Law Review 84 (December 1999): 473–503. Congress passed a juvenile act in 1938 and greatly amended it in 1974 with the passage of the Juvenile Justice and Delinquency Prevention Act, intended to create a coordinated approach to youth crime. Tribal juveniles committing felonies are in the federal system and tribal courts retain authority if both victim and perpetrator are tribal and the crime is outside the Major Crimes Act. 2388. Tamblyn, Katherine Anne M. “Conflicts—Jurisdictional Problems, Indians and Indian Reservations.” Rocky Mountain Law Review 34 (1962): 546–47. Washington tried a Native American man for committing burglary on the Colville Reservation and the state court found him guilty, claiming that the crime was committed on land not deemed to be Indian Country. On appeal, the Washington Supreme Court reversed in Seymour v. Schneckloth that the crime did take place in Indian Country and the federal government had sole jurisdiction to prosecute. 2389. Tasso, Peter. “Greywater v. Joshua and Tribal Jurisdiction over Nonmember Indians.” Iowa Law Review 75 (March 1990): 685–711.

Criminal Jurisdiction

Devils Lake tribal police arrested three Chippewas on the Sioux Reservation in North Dakota and charged them under the tribal code of possessing liquor. The defendants filed for a writ of habeas corpus in federal court and, on appeal, the court dismissed the case, arguing that the tribe’s “status as a domestic dependent” negated its authority over nontribal members. Limiting tribal court authority excludes “non-member Indians from important government protections.” The Commerce Clause may provide a remedy. 2390. Tatum, Melissa L. “Symposium Forward.” Tulsa Law Review 40 (Fall 2004): 1–4. The 2004 Supreme Court decision in United States v. Lara provided the high court an opportunity to address tribal sovereignty. The case concerned the federal government seeking to prosecute Billy Jo Lara for assaulting a federal officer and was a test for Congress’s Duro fix. The Supreme Court upheld Congress’s legislation. 2391. Trachman, Will. “Tribal Criminal Jurisdiction after U.S. v. Lara: Answering Constitutional Challenges to the Duro Fix.” California Law Review 93 (May 2005): 847–97. In 1990, the Supreme Court ruled in Duro that tribes could not prosecute non-member Indians for crimes committed on the reservation. Congress amended ICRA to close this jurisdictional gap later that year. This was a delegation of authority to tribes known as the Duro fix. This was necessary due to problems related to calling non-Indian members political or racial groups because that invokes the equal protection clause. Does the fix create tribunals without full constitutional protections? 2392. “Tribal Sovereignty Sustained: Oliphant v. Schlie and Indian Court Criminal Jurisdiction.” Iowa Law Review 63 (October 1977): 230–47. Oliphant attacked a tribal police office and was taken to tribal court. He claimed the court had no jurisdiction to try him and subsequently the case went to federal court, where the court ruled that Congress had not restricted the tribe’s inherent powers. The Ninth Circuit Court of Appeals upheld the lower court. The Ninth Circuit Court of Appeals made the proper decision, recognizing “an essential sovereign right.” 2393. Vaskov, John A. “Indian Rights—What’s Left? Oliphant, Tribal Courts, and Non-Indians.” University of Pittsburgh Law Review 41 (Fall 1979): 75–88. Twentieth-century developments raised tribal peoples’ hopes of greater self-rule and economic selfsufficiency. The Supreme Court disrupted this mo-

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mentum, deciding in Oliphant that tribal courts have no authority to prosecute non-Indians. 2394. Vetter, William V. “A New Corridor for the Maze: Tribal Criminal Jurisdiction and Nonmember Indians.” American Indian Law Review 17, no. 2 (1992): 349–456. Duro lumped non-member Indians and non-Indians into one category that the Supreme Court prohibited tribal governments from prosecuting. There is now an elevated threat to reservation law and order and tribal governments must become skillful in getting past the Montana and Duro limitations. Intertribal treaties may work to minimize Duro. Developing courts of Indian Offenses that have jurisdiction over all Indians is another solution. 2395. Volk, Paul S. “The Legal Trail of Terrors: Supreme Court Removal Jurisdiction over Crimes by and against Reservation Indians.” New England Law Review 20, no. 2 (1984–1985): 247–83. A critique and criticism of the Supreme Court’s Oliphant decision that undermines inherent tribal rights. The court treated tribes as municipalities from whom the federal government could add or take away powers at will. 2396. Vollmann, Tim. “Criminal Jurisdiction in Indian Country: Tribal Sovereignty and Defendants’ Rights in Conflict.” University of Kansas Law Review 22, no. 3 (1974): 387–412. The multiple sovereigns that claim jurisdiction in Indian Country make law enforcement difficult. Distance adds to the confusion, often denying a tribal defendant his procedural rights. At the same time, an off-reservation court might undermine tribal sovereignty and self-rule. Ever since Ex Parte Crow Dog, Congress’s idea for reform is to reduce tribal authority when maybe it should expand tribal sovereignty. 2397. Wasserman, Richard David. “Oliphant v. Schlie: Recognition of Tribal Criminal Jurisdiction over Non-Indians.” Utah Law Review, no. 3 (1976): 631–45. The Ninth Circuit Court of Appeals upheld the Suquamish Tribe’s authority over non-Indians for criminal purposes. There were twenty-two voting tribal members who approved the tribal criminal code that will be forced on two thousand non-Indians and one thousand non-member Indians. 2398. Wetherington, Chris. “Criminal Jurisdiction of Tribal Courts over Nonmember Indians: The Circuit Split.” Duke Law Journal (September 1989): 1053–85. The Ninth Circuit Court of Appeals ruled in 1988 that tribal courts do not have jurisdiction over nonmember Indians, while the Eighth Circuit Court of

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Appeals declared that tribal courts have such authority. Tribal courts should have criminal authority over non-member Indians. 2399. Wheat, Douglas D. “Indian Law—Criminal Procedure—Instruction on Lesser Included Offenses under the Major Crimes Act.” University of Kansas Law Review 22 (Spring 1974): 479–87. In Keeple v. United States, the Supreme Court had to determine whether the instructions should be placed outside the boundaries of the Major Crimes Act. The Supreme Court agreed, thus further diminishing the role of the tribal courts. 2400. White, Eric B. “Falling through the Cracks after Duro v. Reina: A Close Look at a Jurisdictional Failure.” University of Puget Sound Law Review 15 (Fall 1991): 229–59. The Supreme Court’s decision had three flaws, including the court’s refusal to look at the jurisdictional gap. 2401. Wills, Ted. “Do Novo Review: An Alternative to State and Federal Court Jurisdiction of Non-Indian

Minor Crimes on Indian Land.” American Indian Law Review 17, no. 1 (1992): 309–24. Do novo review (trying the matter anew) could reverse tribal subordination to state and federal authorities. 2402. Wilson, Margaret. “Duro v. Reina: The Last Nail in the Coffin for Indian Tribal Sovereignty.” Utah Law Review, no. 3 (1991): 675–704. Relying on Oliphant, the Supreme Court decided, on appeal, that tribal courts do not have authority to prosecute non-member Indian. Whether the tribal courts were doing the job well did not matter to the high court. 2403. Wilson, Scott W. “Criminal Jurisdiction in Montana Indian Country.” Montana Law Review 47 (Summer 1986): 513–27. Which court has authority to prosecute Montana reservation criminal crimes is determined by the crime’s subject matter, the persons involved, and the crime’s location.

Chapter 27 Land Law and Property Rights

ture control of the region and the river when making this decision, instead of creating potential conflicts.

2404. Ackerman, Francis E. “A Conflict over Land.” American Indian Law Review 8, no. 2 (1980): 259–98. Discusses Eastern tribal land tenure concepts during the colonial era. Land views and culture are inseparable. Differing land holding patterns provide the source of conflict among tribal communities and outsiders.

2408. Atkinson, Matthew. “Red Tape: How American Laws Ensnare Native American Lands, Resources, and People.” Oklahoma City University Law Review 23 (Spring and Summer 1998): 379–431. Land takings are part of the history of tribal–U.S. relations and continue to this day through federal regulations, court rulings, and even the ICC that legalized the past takings. Leasing and land sales continue tribal land losses today.

2405. Alston, Lee J. and Pablo T. Spiller. “A Congressional Theory of Indian Property Rights: The Cherokee Outlet.” In Property Rights and Indian Economies, edited by Terry L. Anderson, 85–107. Lanham, MD: Rowman and Littlefield, 1992. Cherokees and non-Indians struggled for property rights exclusivity on the Outlet. Cherokee property rights on the Outlet and the evolution of government land policy there are consistent with the modern congressional theory, which emphasizes the need for flexible policies that also “enforce agreements among congressmen.”

2409. Baird, David W. “Arkansas’s Choctaw Boundary: A Study of Justice Delayed.” Arkansas Historical Quarterly 28 (1969): 203–22. In 1820, Andrew Jackson negotiated a treaty that defined an eastern boundary between the Choctaw and Arkansas. A boundary dispute began because white settlers found themselves on the Choctaw side of the line. There were false surveys and an absence of congressional solutions before a settlement was finally reached in 1881.

2406. Anderson, Grant K. “The Black Hills Exclusion Policy: Judicial Challenges.” Nebraska History 58 (Spring 1977): 1–24. Details the conflict between the military and miners over access to Black Hills gold. The military attempted to uphold the 1868 Fort Laramie Treaty and exclude the miners from Sioux lands. Judicial decisions in the Solis and Gordon cases weakened the military efforts and encouraged the prospectors, by deciding that miners could be removed but not punished.

2410. Bangs, Jeremy Dupertuis. Indian Deeds: Land in Plymouth Colony, 1620–1691. Boston, MA: New England Historic Genealogical Society, 2002. A chronological compilation of land deeds follows an extensive interpretive historical introduction. Indian land rights to reserves were established within the colonial legal system and the subsequent theft of these lands was invalid.

2407. Arnott, Sarah. “In the Aftermath of the Bighorn River Decision: Montana Has Title, Indian Law Doctrines are Clouded, and Trust Questions Remain.” Public Land Law Review 2 (Spring 1981): 1–56. The Supreme Court decided in Montana v. United States that the state had title to the riverbed within the Crow Reservation. The court needed to consider fu-

2411. Banner, Stuart. How the Indians Lost Their Land: Law and Power on the Frontier. Cambridge, MA: Belknap Press of Harvard University Press, 2005. Historians should consider that, when analyzing Indian treaties and land sales, “there is a large middle ground between conquest and contract.” Indians and non-Indians faced complex decisions involving 251

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issues of law and power. The earlier colonial treaties, when the power imbalance was less severely weighted toward the non-Indians were essentially contracts, while, by the late nineteenth century, Indians had little choice but to accept treaty terms. Throughout this history, whites debated about how law should govern Indian affairs. 2412. Barsh, Russel Lawrence and James Youngblood Henderson. “Contrary Jurisprudence: Tribal Interests in Navigable Waterways before and after Montana v. United States.” Washington Law Review 56 (November 1981): 627–85. The Crow tribe enacted a 1974 ordinance restricting reservation hunting and fishing to members only. The Supreme Court decided that the riverbed of the Big Horn River had passed to Montana upon statehood. The authors criticize the court for moving in a contrary position from established law when tribes have an interest in submerged lands. 2413. Bays, Brad A. Townsite Settlement and Dispossession in the Cherokee Nation, 1866–1907. New York: Garland Publishing, 1998. Chronological study of Cherokee townsite policy that “laid the foundations of the present regional urban system.” The Cherokee plan attempted to allow development and non-Indian settlement without leading to alienation of the land base, and while giving Cherokees a financial stake. The Curtis Act contributed to the rise of federal townsite planning, and Congressional actions led to the alienation of allotments. 2414. Behrens, Jo L. Wetherilt. “‘No Home on the Range’: The Miller Family’s Great Swindle of Indian Lands.” Chronicles of Oklahoma 82 (Summer 2004): 132–67. Reveals land frauds against the Ponca and Otoe Indians committed by the 101 Ranch owners who leased land on the Cherokee Outlet after the Civil War. They committed bribery, sublet leased lands, and paid unfairly low prices to purchase allotted Indian lands. The federal government failed to provide sufficient protection, and passed the enabling legislation, thus allowing white greed to win out over tribal rights. 2415. Benedek, Emily. The Wind Won’t Know Me: A History of the Navajo–Hopi Land Dispute. New York: Vintage Books, 1992. Chronological narrative of the dispute focusing on the Navajo perspective and written for a broad audience. It begins with historical overviews on the tribes and discussion of Healing v. Jones. 2416. Bennett, J. E. The Law of Titles to Indian Lands. Oklahoma City, OK: Harlow Publishing, 1917. Reprints legislation and litigation related to the conversion of the Five Tribe’s communal land-base

into allotted individual property. In an interpretive introduction Bennett discusses “dead claims” and takes issue with a Circuit Court decision in the SundayMallory case. 2417. Berman, Howard R. “The Concept of Aboriginal Rights in the Early Legal History of the United States.” Buffalo Law Review 27 (Fall 1978): 637–67. Fletcher v. Peck involved aboriginal land title, and did George III have the right to convey land held by Indian title? Marshall said no, but he understood the layering of sovereigns’ land rights that would be refined in Johnson v. M’Intosh, where he used the conquest theory and right of discovery to layer land titles. 2418. Best, Rick. “The Determination of Title to Submerged Lands on Indian Reservations.” Washington Law Review 61 (July 1986): 1185–1211. Examines factors associated with reservationsubmerged lands, such as aboriginal title and equal footing doctrines, and inconsistent rules, as was illustrated in Montana. The courts have not constructed a clear path to determine land ownership under submerged lands. 2419. Bissonnette, Andrew. “An Overview of the Question of Access across Indian Lands.” Land and Water Law Review 10, no. 1 (1975): 93–117. Squire v. Capoeman, decided in 1957 by the Supreme Court, is one of the leading cases related to this subject. Law and policy are at odds because the IRS is extremely rigid in defining taxable and nontaxable lands. 2420. Bledsoe, Samuel Thomas. Indian Land Laws: Being a Treatise on Indian Land Titles in Oklahoma and under the General Allotment Act, Amendments and Legislation Supplemental Thereto, Including a Full Consideration of Conveyances of Lands of Minors, Descent, Dower, Courtesy, Taxation, Easements in and Actions Affecting Title to Allotted Indian Lands. Kansas City, MO: Vernon Law, 1913. An early book to document this type of information. 2421. Bloxham, S. J. “Tribal Sovereignty: An Analysis of Montana v. United States.” American Indian Law Review 8, no. 1 (1980): 175–81. The Crow Nation claimed the right to exclude non-Indian fishermen from the Big Horn River where it passes through the reservation. The Supreme Court rejected the tribe’s claim, stating that no treaty conveyed the riverbed to the tribe. Despite the court’s claim of basing its decision on principles, it used ad hoc principles that hindered tribal self-government.

Land Law and Property Rights

2422. Blumenthal, Walter Hart. American Indians Dispossessed: Fraud in Land Cessions Forced upon the Tribes. Philadelphia: G. S. MacManus, 1955. History of colonial and U.S. Indian policies, land transactions, and treaties, some of which were fair and fulfilled, but most of which were fraudulent and dishonorable. The concept of land sales was alien to Indians and they were “doomed to be dispossessed.” 2423. Bond, Reford. “Delay Rental Instructions.” Oklahoma Law Review 14 (November 1961): 475–90. Discusses rental payments and includes a section on how lessee payments are made when tribal lands in Oklahoma and elsewhere are leased for oil and gas. 2424. Brayer, Herbert O. Pueblo Indian Land Grants of the “Rio Abajo,” New Mexico. Albuquerque: University of New Mexico Press, 1938. Study of Spanish and Mexican land grant policies and U.S. policies related to Pueblo property, including discussion of the 1924 Pueblo Lands Act. U.S. policy, since 1848, has resembled Spain’s in that it regards the Pueblos as wards, with communal land title originating from Spanish grants, and in that their lands may not be alienated without government consent. 2425. Brugge, David M. The Navajo–Hopi Land Dispute: An American Tragedy. Albuquerque: University of New Mexico Press, 1994. History of the dispute over the 1882 reservation and analysis of Healing v. Jones, a case Brugge assisted with. He was disillusioned by the success that attorneys working for the Hopis found in unfairly stereotyping the Navajos and playing on long-held racially prejudices against them in the Southwest. 2426. Bushnell, David. “The Treatment of the Indians in Plymouth Colony.” New England Quarterly 26 (June 1953): 193–218. Examines the Plymouth Colony’s treatment of the local Native Americans from the Wessagussset battle to Philip’s war. The Pilgrims were careful to never create a land question by carefully extinguishing tribal rights to occupancy, yet land was a source of constant trouble. 2427. Cabaniss, John C. “Federal Common Law and Its Application to Disputes Involving Accretive and Avulsive Hangs in the Bounds of Navigable Waters.” Land and Water Law Review 17, no. 2 (1982): 329–65. Includes a section on the Wilson case that involved the Omaha Nation of Nebraska and the changing course of the Missouri River. The state’s interests were greater than the federal or tribal government’s interests in this changing watercourse.

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2428. Cain, Gordon. “Indian Land Titles in Minnesota.” Minnesota Law Review 2 (January 1918): 177–91. Surveys the major acts that have developed Indian title, which has made Minnesota real estate titles complex. 2429. Carlson, Alvar W. “Spanish–American Acquisition of Cropland within the Northern Pueblo Indian Grants, New Mexico.” Ethnohistory 22 (Spring 1975): 95–110. Despite confirmation of land title to Pueblo lands that date from the Spanish era, many non-Indians obtained title to these lands through the Pueblo Land Board created in 1924. As the board granted land titles to Americans, the Pueblos’ landscape changed. 2430. Chambers, Reid Peyton and Monroe E. Price. “Regulating Sovereignty: Secretarial Discretion and the Leasing of Indian Lands.” Stanford Law Review 26 (May 1974): 1061–96. The Secretary of the Interior must approve leasing under legislation enacted in 1955. The foundation for this legislation stems from the Commerce Clause of the Constitution. Prior to 1955, the leases were shortterm and pertained to farming or grazing, but after 1955 the leases were often business ventures of fifty years in length, thus bringing non-Indians onto reservations and encouraging states to extend their authority. The secretary has ignored these implications, merely seeking revenue. 2431. Chapman, Berlin B. “How the Cherokees Acquired and Disposed of the Outlet.” Chronicles of Oklahoma 15 (March 1937): 30–49; cont. 15 (June 1937): 205–25; cont. 15 (September 1937): 291–321; cont. 16 (March 1938): 36–51; cont. 16 (June 1938): 135–62. Chronological account that considers this portion of land promised to the Cherokees to be the most important tract in the territory. Part two of the article includes Cherokee protests in 1869 over proposed settlement of other tribes on their lands, as well as discussion of the lucrative leasing of lands to ranchers, and the rise of the Cherokee Live Stock Association. The third segment deals with the “serious and futile effort” of the Cherokee Commission to purchase the Outlet. The fourth part includes analysis of the legal nature of Cherokee title and explains how the federal government induced the tribe to sell the lands by ordering in 1890 that livestock be removed. 2432. Chapman, Berlin B. “Opening of the Cherokee Outlet: An Archival Study.” Chronicles of Oklahoma 40 (Summer 1962): 158–81; cont. 40 (Winter 1962–63): 253–85. Employs archival sources to describe the administrative procedure involved in settling newly opened

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Cherokee lands. The federal government made a greater effort than in previous land openings to prevent fraud. 2433. Chapman, Berlin B. “Secret ‘Instructions and Suggestions’ to the Cherokee Commission, 1889–1890.” Chronicles of Oklahoma 26 (Winter 1948–1949): 449–58. Reprints a set of guidelines and opinions sent by Commissioner of Indian Affairs James H. Oberly to the Secretary of the Interior concerning the legal status of tribal lands. 2434. Churchill, Ward. “Genocide in Arizona? The ‘Navajo–Hopi Land Dispute’ in Perspective.” In From a Native Son: Selected Essays on Indigenism, 1985–1995, by Ward Churchill, 107–46. Boston, MA: South End Press, 1996. The “dispute” and relocations from the Joint Use Area were motivated by a U.S. scheme to eliminate the population from a significant portion of the area to access coal under these lands. John Boyden and Sam Steiger played leading roles. 2435. Clarke, Suzanne. “Hopi–Navajo Land Dispute— 1934—Sekaquaptewa v. McDonald.” Arizona State Law Journal 1978, no. 2–3, (1978): 323–31. In 1934, Congress consolidated treaty and executive order lands to define the Navajo Reservation exterior boundaries. Moencopi, a Hopi village, was surrounded by Navajo land, thus leaving these Hopi as “other Indians” within the law. Congress attempted to settle the inevitable dispute, but in 1974 the Hopi chairman filed suit against the Navajo chairman to assert a joint partition claim to the disputed lands. The Hopi persuaded the lower court to include all executive order lands in the partitioned area and the Navajo circumscribed Hopi interests. The district court protected Hopi land interests, but by finding joint ownership, diminished Hopi rights. 2436. Clemmer, Richard. “Land Use Patterns and Aboriginal Rights.” Indian Historian 7 (Winter 1974): 24–41, 47–49. Northern and eastern Nevada contains natural resources that non-Indians used in a value-oriented exploitation system that eventually came under the auspices of the Bureau of Reclamation. Federal movement toward resource and recreation development has severely limited Western Shoshone and Goshute subsistence practices. 2437. Cohen, Felix S. “Original Indian Title.” Minnesota Law Review 32 (December 1947): 28–59. Takes a doctrinal approach to understanding the origins of Indian title and discuss several cases that upheld tribal title.

2438. Coulter, Robert T. and Steven M. Tullberg. “Indian Land Rights.” In The Aggressions of Civilization: Federal Indian Policy since the 1880s, edited by Sandra L. Cadwalader and Vine Deloria, Jr., 185–213. Philadelphia: Temple University Press, 1984. Despite legal principles devoted to just treatment of Indians and their lands, U.S. law has failed to protect Indian lands. The authors list reasons why this is the case, and discuss major court cases related to land rights and non-Indian rights to extinguish them. Today’s problem stems from colonialist and racist ideologies of the past. The courts bear primary blame, beginning with the Marshall court, as federal courts have yielded to political expediency, and the trust relationship has handicapped tribes wishing to protect their land rights. 2439. Covington, James W. “A Peoria Indian States His Case.” Missouri Historical Review 51 (July 1957): 382–85. Brief comments on the value of firsthand tribal views of U.S. occupation and settlement. Covington includes a transcript of an 1828 speech by Wapi-ChaCa-Nan in which he disputes the government’s preferential treatment of other tribes recently removed to the area. 2440. Cox, Bruce A. “Hopi Trouble Cases: Cultivation Rights and Homesteads.” Plateau 39 (Spring 1967): 145–56. Discusses land issues that require tribal law to resolve. Matrilineal rules govern Hopi gardens. Houses are more complex issues because they are privately owned. A Baptist attempt to construct a church challenged Hopi spiritual authorities and Hopi landowning patterns. 2441. Cross, Raymond. “Sovereign Bargains, Indian Takings, and the Preservation of Indian Country in the Twenty-first Century.” Arizona Law Review 40 (Summer 1998): 425–509. By trying to protect tribal land through subordinating its status to an inferior position, John Marshall created a dangerous situation known as “Indian Country.” Using the 1992 Fort Berthold repayment act as a foundation, Cross suggests modifications to the current process that the federal government employs to take tribal lands. 2442. Damji, Feyrouz and Suzanne Kim. Strategic Land Acquisition: Implementing Formal Strategies, Policies and Processes for Sustainable Decision Making. Harvard Project on American Indian Economic Development, John F. Kennedy School of Government, Cambridge, MA: Harvard University, April 1997. There is tribal support for the Crow government to sustain a land acquisition program, but to succeed it

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must have a strategic plan. The current acquisition processes is not sustainable due the lack of money, and the tribal government does not have the expertise to reap the benefit of lands under tribal control. The report describes five steps to assist the Crows in the land acquisition program. 2443. Deutsch, Herman J. “Indian and White in the Inland Empire: The Contest for the Land, 1880–1912.” Pacific Northwest Quarterly 47 (April 1956): 44–51. Policies were undergoing significant change during these decades, including the shift from treaties to executive order reservations and allotment. Policies designed for prairie and forestlands in the Midwest were applied to these arid and semi-arid lands. In the contest for farmlands, Indians were disadvantaged. 2444. DeVorsey, Louis, Jr. “Indian Boundaries in Colonial Georgia.” Georgia Historical Quarterly 54 (Spring 1970): 63–78. Both Indians and whites recognized the significance of the land boundary lines separating them. DeVorsey surveys and maps these changing lines over time. Understanding the significance of these lines “should help dispel the myth of a one-sided European frontier” inevitably advancing. 2445. DiCastri, Frank W. “Are All States Really Equal? The ‘Equal Footing’ Doctrine and the Indian Claims to Submerged Lands.” Wisconsin Law Review, no. 1 (1997): 179–206. Tribes claim that their land and water rights existed before states were created. This created a legal conflict between states and tribes because when the state entered the union, the state was created from ceded tribal lands. It is important to remember that the Equal Footing doctrine is not defined equally, but rather those states that entered the union first got more than those who followed. 2446. “Documents: Correspondence about Indian Lands” Washington Historical Quarterly 4 (October 1913): 288–89. One-paragraph introduction to two letters between Governor Henry McGill and Captain Maloney interprets them as showing the territorial government’s unclear understanding of its rights vis-à-vis lands occupied by nontreaty tribes. 2447. Downs, Ernest C. “How the East Was Lost.” American Indian Journal of the Institute for the Development of Indian Law 1 (November 1975): 6–10. The Louisiana Purchase ended long-standing tribal–colonial agreements and opened the door for American expansion, hurting tribal sovereignty and reducing land bases.

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2448. Dozier, Jack. “The Coeur d’Alene Land Rush, 1909–1910.” Pacific Northwest Quarterly 53 (October 1962): 145–50. After Governor Stevens failed to deliver on his 1855 promise to meet with the tribe a second time, they waited until 1889 to receive a reservation. After 1905 the reservation was allotted and more than one-half of the tribal lands were thereafter occupied by white homesteaders. More land was later sold or leased. 2449. Eads, Sharon. “Prospecting Permits on Indian Lands: Who Benefits?” American Indian Law Review 2 (Winter 1974): 117–24. Explains differences between the 1920 and 1938 reservation leasing acts. Asks whether a permit to explore can be transferred into a permit to exploit. 2450. Eckersley, Brent. “Narragansett Indian Tribe of Rhode Island v. Narragansett Electric Company: When Dependent Indian Communities Fall within Indian Country.” American Indian Law Review 21, no. 1 (1997): 193–204. Indian Country remains a confusing concept despite its definition in case law and statute. In this case, the court did eliminate one confusing aspect by deciding, “tribes may not claim presumptive sovereignty rights by simply asserting Indian land is Indian Country.” 2451. Engstrand, Iris Wilson. “Land Grant Problems in the Southwest: The Spanish and Mexican Heritage.” New Mexico Historical Review 53 (October 1978): 317–36. Explains how scholarly and legal confusion has stemmed from the fact that Anglo-American law could not easily be imposed on a Spanish–Mexican system. A survey of Spanish law includes a discussion of Indian rights laid down in the Laws of the Indies. These laws guaranteed Native rights to “land, water, and pastures,” or due compensation if they were so deprived. 2452. Erickson, Ralph. “Aboriginal Land Rights in the United States.” North Dakota Law Review 60, no. 1 (1984): 107–39. Surveys the historic evolution and diminishment of aboriginal title in Canada and the U.S. Both countries approach aboriginal title similarly. Since Congress holds the authority to extinguish aboriginal title, it is tenuous. 2453. Estill, A. Emma. “The Great Lottery.” Chronicles of Oklahoma 9 (December 1931): 365–81. Describes the 1901 opening to non-Indian settlement of the Kiowa–Comanche and Apache reservations as “the superlative event to this time in the history of Oklahoma.”

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2454. Euler, Robert C. and Henry F. Dobyns. “Ethnic Group Land Rights in the Modern State.” Human Organization 20 (Winter 1961–1962): 203–7. Examines specific cases of cultural conflict, including conflicts involving the Hualapai and the Tuscarora. In both cases, the tribes were fighting local power authorities. These conflicts will continue as long as the larger society pushes for uniformity of both cultural behaviors and social structures. 2455. Farrand, Max. “The Indian Boundary Line.” American Historical Review 10 (July 1905): 782–91. The Peace of 1763 created the opportunity to solve a series of local land conflicts between English colonists and tribal nations. The solution was the Proclamation of 1763, a temporary measure to solve a continent-wide problem of white land trespass by placing a boundary between tribal and non-tribal territories. 2456. Feher-Elston, Catherine. Children of the Sacred Ground: America’s Last Indian War. Flagstaff, AZ: Northland Publishing, 1988. Account of the Navajo–Hopi land dispute, concluding that land is essential to both tribes and they must continue to struggle for it in this “last of the Indian wars.” 2457. Fickinger, Paul L. “Delegations of Authority to Remove Restrictions and other Acts Pertaining to Indian Lands.” Oklahoma Bar Journal 26, no. 11 (1955): 455. Discusses the 1908 and the 1946 acts that permit the removal of restrictions from tribal lands. 2458. Fitchett, Allen D. “Early History of Novel County.” Chronicles of Oklahoma 17 (March 1939): 75–86. The majority of the article deals with government efforts to obtain tribal lands in this county located in the north central part of the state. 2459. Forbes, Gerald. “The International Conflict for the Lands of the Creek Confederacy.” Chronicles of Oklahoma 14 (December 1936): 478–98. Contrasts Spanish, French, and English colonial efforts to win Creek loyalty and secure their lands. The French were most successful at winning their loyalty and the English at gaining the lands. The Creeks were pawns in European contests. 2460. Foreman, Grant. “Captain Nathan Boone’s Survey: Creek–Cherokee Boundary Line.” Chronicles of Oklahoma 4 (December 1926): 356–65. The 1833 treaties with the two tribes attempted to resolve a land-dispute by fixing a new boundary between them. Boone was employed to survey the line. His field notes are reprinted, showing the line’s specific location.

2461. Gates, Paul Wallace. Fifty Million Acres: Conflicts over Kansas Land Policy, 1854–1890. Ithaca, NY: Cornell University Press, 1954. The struggle over land was fiercer in Kansas than in Nebraska or Minnesota because of the complexity and confusion created by the intertwining issues of Indian land-rights, slavery, railroad competitors, and confusing land policies that allowed for plunder and patronage. Indians are a central focus of the study, with discussions of treaty making and land allotment. 2462. Gibson, Arrell M. “Indian Land Transfers.” In History of Indian–White Relations, volume 4, edited by Wilcomb E. Washburn, Handbook of North American Indians, general editor William C. Sturtevant, 211–29. Washington, DC: Smithsonian Institution, 1988. Chronological overview of non-Indian efforts to obtain Indian lands in the U.S. from the American Revolution through the 1970s. It includes four fullpage maps displaying land transfers over time and ends with a discussion of land claims. 2463. Gibson, Arrell M. “Philosophical, Legal, and Social Rationales for Appropriating the Tribal Estate, 1607–1980.” American Indian Law Review 12, no. 1 (1984): 3–37. Tribal leaders claim that the greatest crime Europeans and the U.S. committed was dispossessing tribal America. The tribal quest for justice has now led to presenting petitions to the United Nations and testifying before the Fourth Bertrand Russell Tribunal on alleged crimes. 2464. Gibson, Michael M. “Indian Claims in the Beds of Oklahoma Watercourses.” American Indian Law Review 4, no. 2 (1976): 83–90. These tribes have patent in fee claims, Indian reservation claims, and land allotment claims—all of which compound the problems of the navigable riverbed ownership. The state of Oklahoma did not gain authority over these tribal properties based on the Equal Footing Doctrine. 2465. Gilbert, William H. and John L. Taylor. “Indian Land Questions.” Arizona Law Review 8 (Fall 1968): 102–31. Tribal uses of their landscapes are constantly changing. Heirship lands, long-term leases, Army Corp of Engineers water projects, and land purchase restrictions are all issues that need to be addressed. 2466. Goldman, Patti. “Riverbed Ownership Law Metamorphosed Into a Determinant to Tribal Regulatory Authority—Montana v. United States.” Wisconsin Law Review, no. 2 (1982): 264–310. The Crow tribe exerted their political control over the Big Horn River, prohibiting non-tribal members’

Land Law and Property Rights

access. This case went to the Supreme Court where a decision went against the tribe, reducing their regulatory power over non-Indian fishing. The court did not accept the idea that the Crow might develop the river in the future, but put the river and the riverbed management in the hands of the state. 2467. Goodman, James M. and Gary L. Thompson. “The Hopi–Navajo Land Dispute.” American Indian Law Review 3, no. 2 (1975): 397–417. Examines the causes involved in the Hopi–Navajo land dispute over Black Mesa that began in 1882. These issues include the preservation of Navajo sacred sites and tribal resource utilization, including coal. 2468. Graebner, Norman Arthur. “The Public Land Policy of the Five Civilized Tribes.” Chronicles of Oklahoma 23 (Summer 1945): 107–18. Considers their system of communal land ownership, lasting until land allotment ended it around 1900, as perhaps “the most singular and most successful experiment in public ownership” in U.S. history. 2469. Greenleaf, Richard E. “Land and Water in Mexico and New Mexico, 1700–1821.” New Mexico Historical Review 47 (April 1972): 85–112. Broad conceptual discussion of the evolution of Spanish land and water rights laws, including Indian influence on those laws. 2470. Grinnell, George Bird.“Tenure of Land among the Indians.” American Anthropologist 9, no. 1 (1907): 1–11. Land tenure is a crucial aspect of tribal sovereignty. Pre- and post-contact tribal land titles are discussed. 2471. Gross, Harold M. “Submarginal Lands: An Instance of How the Legislative Process Fails Native Americans.” North Dakota Law Review 48 (Summer 1974): 561–91. The organization of the Land Program under President Franklin Roosevelt was intended to purchase and take out of production eroded family farms and economically benefit local populations, including tribes, by enabling them to improve these lands. The Emergency Relief Appropriation Act provided funds for this end. Ten tribal projects, mainly on the Great Plains, were established to place submarginal lands in tribal ownership. Similar projects were conducted in the southwest between the Department of Agriculture and the Indian Office. These promises fell through and tribes were still waiting for these lands in the 1970s when bills were introduced in Congress to fulfill past agreements.

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2472. Haas, Theodore. “Restrictive Covenants and the Indians.” American Indian 4 (Winter 1948): 11–15. In 1948, the Supreme Court ended the practice of restrictive covenants on property. Owners may continue to make restrictive covenants, but the courts will not have the power to enforce them. One of the cases that reached the Supreme Court involved a Seneca family that a lower court had separated. 2473. Haddon, Sam E. “Access and Wharfage Rights and the Territorial Extent of Indian Reservations Bordering on Navigable Water—Who Owns the Bed of Flathead Lake?” Montana Law Review 27 (Fall 1965): 55–77. The Confederated Salish and Kootenai Tribes do not have an interest in the southern half of Flathead Lake because the government, as trustee, has no interest in any lands below the high-water mark. As a result, the riparian land property owners with real estate on the lake have wharfage rights. 2474. Hagan, William T. “Justifying Dispossession of the Indian: The Land Utilization Argument.” In American Indian Environments: Ecological Issues in Native American History, edited by Christopher Vecsey and Robert W. Venables, 65–80. Syracuse, NY: Syracuse University Press, 1980. Over time, whites have commonly justified dispossessing Indians by arguing that they have not properly utilized the land. Hagan traces the evolution of this notion from the Puritans to the present. The argument has been used recently in disputes involving water, energy resources, and land claims. 2475. Harper, Allen G. “Fort Berthold Indians Hope for Justice.” American Indian 5, no. 2 (1949): 22–30. The construction of Fort Garrison Dam brought Congress into negotiations with the Fort Berthold community to reach a settlement for the flooding of their lands. A three-part contract was signed with the Corps of Engineers and the tribe providing for removing possessions, removing graves, and valuing the land. 2476. Harrison, John S. “Hoheld and Herefords: The Concept of Property and the Law of the Range.” New Mexico Law Review 22 (Spring 1992): 459–99. Presents the historical–legal background for the problem of administering public land grazing permits under the Taylor Grazing Act when tribal people claim a competing aboriginal title that provides them the right of occupancy and use. 2477. Haupt, Barbara. Buying Back the Land: Land Acquisition as a Means to Achieving Tribal Goals on the Puyallup Reservation. Harvard Project on American Indian Economic Development, John F. Kennedy

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School of Government, Cambridge, MA: Harvard University, April 1992. The tribe’s 1988 land claims settlement, along with a 1991 tribal council decision to repurchase former lands within the reservation, began a tribal landrepurchasing program. For this to work, the tribe must commit gaming money to the project, build a land office, create a planning process, and hire personnel. 2478. Hauptman, Laurence M. “The Historical Background to the Present-Day Seneca Nation–Salamanca Lease Controversy.” In Iroquois Land Claims, edited by Christopher Vecsey and William A. Starna, 101–22. Syracuse, NY: Syracuse University Press, 1988. Leases made between non-Indians and the Senecas in New York are set to expire in 1991. A controversy has developed and non-Indians have pressured the New York legislature to take actions perceived as hostile to Iroquois interests. The state has an obligation to confront the crisis directly and encourage negotiations toward the best possible solution for both Indian and non-Indians residents. 2479. Henderson, J. Youngblood. “Unraveling the Riddle of Aboriginal Title.” American Indian Law Review 5, no. 1 (1977): 75–137. The courts were searching for a way to unify federal land title and, as a result, destroyed the classic doctrine known as aboriginal title. The courts deprived tribal people of their economic futures. Today, Indian title has no bearing on the concept that John Marshall articulated because tribal communities have very limited rights. 2480. Hoerig, Karl A. “The Relationship between German Immigrants and the Native Peoples in Western Texas.” Southwestern Historical Quarterly 97 (January 1994): 422–51. This has been viewed as a rare example of amicable relations between European–American settlers and Native Americans. Settlers first entered treaty negotiations with Comanches in 1847, but relations thereafter may not have been as peaceful as once assumed. By 1850, these relations had deteriorated to the point that some German settlers encouraged the Texas government to remove the tribes. 2481. Hogan, Thomas E. “City in a Quandary: Salamanca and the Allegany Leases.” New York History 55 (January 1974): 79–101. When the railroad began to move into southern Cattaraugus County, it leased lands from the Seneca. The local state court ruled that the reservation was tribal land, and therefore under federal–tribal jurisdiction, and that New York had no authority, thus forcing local whites to ask Congress for corrective

legislation. In 1875, Congress passed the Salamanca Leasing Bill, which was amended in 1890, providing for a ninety-nine-year lease that is still in effect. 2482. Howland, Todd, “U.S. Law as a Tool of Forced Social Change: A Contextual Examination of the Human Rights Violations by the United States Government against Native Americans at Big Mountain.” Boston College Third World Law Journal 7 (Winter 1987): 61–96. The Big Mountain Joint Use Area is the object of an internal conflict between Hopi and Navajo who do not support or participate in the tribal government process. The more acculturated members of these two communities control each tribal government and work with the U.S. To settle the conflict, Hopis hired an advertising firm to create a Hopi–Navajo range war that succeeded in gaining passage of P.L. 93-531 to segregate the two tribal communities in the joint use area. This legislation will remove tribal members from their homes. 2483. Hunt, Jack. “Land Tenure and Economic Development on the Warm Springs Indian Reservation.” Journal of the West 9 (January 1970): 93–109. Discusses different forms of land tenure and tribal economic development efforts on the Warm Springs reservation. Forms of land tenure include tribal lands, allotted lands, allotted lands held in fee patent, and tribal assigned lands. The tribe has achieved better economic success by actively working to maintain tribal land tenure, even to the point of purchasing back allotted and fee lands. 2484. Hurt, Douglas A. “‘The Indian Home Is Undone’: Anglo Intrusion, Colonization, and the Creek Nation, 1867–1907.” Chronicles of Oklahoma 83 (Summer 2005): 194–217. Even after their initial dispossession, the Creeks in Indian Territory remained a “viable ethnic group” with strong connections to place that aided in their efforts to resist and adapt to white intrusion. 2485. “Indian Lands: Jurisdiction to Determine Title.” Buffalo Law Review 9, no. 1 (1959–1960): 182–84. New York Indian Law, Section 8, requires that when tribal leaders complain, the local non-Indian officials will remove intruders. Does Section 8 give authority to New York to decide title to land where an intruder is found? In 1955’s Brenner v. Great Cove Realty, the tribal court determined that removing intruders from tribal land did not grant the court the right to determine land title. On appeal, the New York Court of Appeals reversed the decision. 2486. Indian Law Resource Center. “United States Denial of Indian Property Rights: A Study in Lawless Power

Land Law and Property Rights

and Racial Discrimination.” In Rethinking Indian Law, 15–25. New York: National Lawyers Guild, Committee on Native American Struggles, 1982. Discusses the right of discovery, right of conquest, trust relationship, and plenary power doctrine. U.S. law regarding indigenous land rights is racially discriminatory and offends human rights recognized by international law. 2487. James, Parthena Louise. “The White Threat in the Chickasaw Nation.” Chronicles of Oklahoma 46 (Spring 1968): 73–85. After the Civil War, some tribal members were concerned that whites who came on tribal lands as laborers, or through lease agreements, might pose a threat to tribal well-being, and responded with permit regulations. The permit law and other strategies proposed by Chickasaws could not stop the tide of nonIndian immigration. 2488. Jenkins, Myra Ellen. “Spanish Land Grants in the Tewa Area.” New Mexico Historical Review 47 (April 1972): 113–34. Detailed discussion of Tewa land grants and disputes surrounding them in the Spanish era. The article demonstrates the conflicting interest that Spanish governors had in obeying laws that protected Pueblo lands, while also aiding Spanish settlers in the colonization of those lands.

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Congress had been misinformed “and to a great extent manipulated” in making its decision in 1974. 2492. Kasen, Larry M. “Federal Indian Burden of Proof Statute: 5th Amendment Due Process Considerations.” Natural Resources Journal 19 (July 1979): 725–34. The Eighth Circuit Court of Appeals heard the consolidated cases of Wilson v. Omaha Indian Tribe and Iowa v. Omaha Indian Tribe that were Missouri River boundary cases based on the river’s historic course changes. The court examined whether or not the 1834 Trade and Intercourse Act violated the Fifth Amendment’s due process clause. The court maintained that a special congressional statute did not violate the due process provision. 2493. Kaye, Francis W. “Little Squatter on the Osage Diminished Reserve: Reading Laura Ingalls Wilder’s Kansas Indians.” Great Plains Quarterly 20 (Spring 2000): 123–40. Includes a short discussion of the pressures put on Osage lands by squatters and land cession treaties in the 1860s.

2489. Jenkins, Myra Ellen. “Taos Pueblo and Its Neighbors.” New Mexico Historical Review 41 (April 1966): 85–114. Includes an account of Taos efforts to preserve their land base through petition and litigation, focusing mainly on the Spanish and Mexican eras. Also touches on Taos water rights.

2494. Kelley, Klara B. “Federal Indian Land Policy and Economic Development in the United States.” In Economic Development in American Indian Reservations, Development Series No. 1. Albuquerque: Native American Studies, University of New Mexico, 1979, 30–42. Divides the policy into seven periods beginning with trade and treaties from 1776–1810, and ending with self-determination from 1960 to the present. Shifts in policy are linked to changes in the American economic system. Kelley also provides a table showing land losses by millions of acres for these periods.

2490. Johansen, Bruce E., ed. Shapers of the Great Debate on Native Americans’ Land, Spirit, and Power: A Biographical Dictionary. Westport, CT: Greenwood Press, 2000. Compares European-American and Native American leaders’ perceptions of expansion, Indian land rights, and land use. Each chapter consists of biographies of key historical actors from the 17th century to modern day grouped around a specific land-related theme. The last chapter includes Felix Cohen, Vine Deloria, Jr., Oren Lyons, and Slade Gordon, and deal with the issue of “land base and the reclamation of culture.”

2495. Kelly, David G. “Indian Title: The Rights of American Natives in Lands They Have Occupied since Time Memorial.” Columbia Law Review 75 (April 1975): 655–86. Aboriginal title is the foundation of tribal claims to the lands they resided upon before colonization. Johnson v. McIntosh, 1823, established aboriginal title as well as federal control over these lands. Treaty lands also fall within Fifth Amendment rights. In 1935, the Supreme Court ruled in United States v. Creek Nation that they held their lands by fee, therefore Congress could not take their lands without compensation, and this included treaty lands.

2491. Kammer, Jerry. The Second Long Walk: The Navajo–Hopi Land Dispute. Albuquerque: University of New Mexico Press, 1980. Navajo relocation from the Joint Use Area was an “unjustified, inhumane, and unworkable” mistake.

2496. Kelly, Lawrence C. “John Collier and the Pueblo Lands Board Act.” New Mexico Historical Review 58 (January 1983): 5–34. Focuses on Collier’s role in fighting the Bursum bill and his reasons for reluctantly accepting the

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Pueblo Lands Act. Collier later became disillusioned with the Act’s failures to protect Pueblo land rights and provide due compensation. 2497. Linzee, E. H. “Registration and Drawing for Opening of Kiowa and Comanche Country, 1901.” Chronicles of Oklahoma 25 (Autumn 1947): 289–94. Rather than relying on a land rush, these tribal lands were opened using a registration and drawing method. The process is explained. 2498. Lipps, Oscar H. compiler. Laws and Regulations Relating to Indians and Their Lands. Lewiston, ID: Lewiston Printing and Binding, 1913. Part I of this manual describes reservation and individual land laws and regulations, Part II provides a short reprint of major court decisions such as Crow Dog, and Part III comprises lists of competent Nez Percé allottees who can make their leases and those who cannot. 2499. Lusvardi, Anthony A. “Montana v. United States— Effects on Liberal Treaty Interpretation and Indian Rights to Lands Underlying Navigable Rivers.” Notre Dame Lawyer 57 (April 1982): 689–703. This case involved ownership of the Big Horn riverbed. The Supreme Court decided that when equal footing and tribal interests clash, the state’s equal footing doctrine wins. This case is a setback for liberal Indian treaty interpretation. 2500. McAuthur, C. L. “Indian Land Law.” Oklahoma Bar Journal 30 (December 1959): 2168–85. Overview of the land and tax laws that affect Oklahoma tribes. Oklahoma has many different statutes that affect different tribes and their land rights differently. 2501. McCluggage, Robert W. “The Senate and Indian Land Titles, 1800–1825.” Western Historical Quarterly 1 (October 1970): 415–25. The Senate’s view of tribal land titles was similar to that of the nation’s white majority. The strength of tribal land title depended on the congressional assertion of sovereignty over all lands within its borders. The senate ratified tribal treaties and refused to let tribes have fee simple title. 2502. McLane, Alfred. “Indian Lands—Selected Problems.” Rocky Mountain Mineral Law Institute 2 (1956): 51–75. Discusses some of the legal issues and unique conflicts that arise when dealing with tribal lands, which have different ownership status than other lands because of the guardian–ward relationship and the role of the federal government. Describes wills and titles, tribal organization, and problems that arise from these institutions.

2503. McPherson, Robert S. “Canyons, Cows, and Conflict: A Native American History of Montezuma Canyon, 1874–1933.” Utah Historical Quarterly 60 (Summer 1992): 238–58. During the 1880s, non-Indian-owned cattle companies and Navajo herders both moved into Ute lands. Ute residents in the canyon resisted the incursions but were losing control of their land base. Navajos gained more control and even secured a small portion of the canyon. Whites were the greatest beneficiaries of the Utes’ losses. 2504. McQuire, Thomas R. “Operations on the Concept of Sovereignty.” Urban Anthropology and Studies of Cultural Systems and World Economic Development 17, no. 1 (1988): 75–86. A proposal to lease 18,000 acres for ninety years created turmoil within the Tohono O’odham tribe. In 1986, the tribal council voted against the leasing proposal. Throughout the process, the BIA supported self-determination, but was willing to act as trustee. 2505. Mathews-Lamb, Sandra K. “‘Designing and Mischievous Individuals’: The [Cru]zate Grants and the Office of the Surveyor General.” New Mexico Historical Review 71 (October 1996): 341–59. Account of Surveyor General William Pelham’s successful effort to gain congressional confirmation of Pueblo land titles, but which proved futile when the Court of Private Land Claims threw them out as forgeries in 1891. The U.S. government awkwardly handled Spanish land grants for Pueblo Indians in the era. 2506. Matthiessen, Peter. Indian Country. New York: Penguin Books, 1992; first published by Viking Press, 1984. Account of non-Indian encroachment on Native lands and the consequent harm done to all involved. Tribal communities discussed include the Miccosukee, Hopi, Cherokee, Mohawk, Yurok, Karuk, Lakota, Chumash, Paiute, Shoshone, Ute, and Navajo. 2507. Milam, Joe B. “The Opening of the Cherokee Outlet.” Chronicles of Oklahoma 9 (September 1931): 268–86; cont. 9 (December 1931): 454–75. Account of Cherokee land use, including the process leading to its opening to non-Indians and subsequent settlement. 2508. Miles, Lion G. “The Red Man Dispossessed: The Williams Family and the Alienation of Indian Land in Stockbridge, Massachusetts, 1736–1818.” New England Quarterly 67 (March 1994): 46–76. The creation of the Stockbridge tribal community provides a view of the differing tribal and non-tribal

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perspectives on land during the eighteenth and early nineteenth century. Conflict began immediately as a minority of English took as much as they could, even though the town was created for tribal use. 2509. Miller, Robert A. “Indians: Better Dead than Red?” Southern California Law Review 42 (Fall 1962): 101–25. Tribal land has greater value today Than current use and tribal possession permit. This occurred because a federal bureaucracy evolved that controlled Native property and non-Indians did not protest. 2510. Miner, Craig. “The Struggle for an East–West Railway into the Indian Territory, 1870–1882.” Chronicles of Oklahoma 47 (Spring 1969): 560–81. Focuses on the conflict between tribal sovereign rights and the development of rail lines through their lands. Senate Bill No. 60 signaled that tribal concerns and rights would be ignored in the name of national interests. 2511. Monahan, Forrest D. “The Kiowa–Comanche Reservation in the 1890s.” Chronicles of Oklahoma 45 (Winter 1967–1968): 451–63. Cattle ranchers were appeased through lease agreements, but settlers and prospectors illegally invaded tribal lands. In 1897, the Oklahoma Supreme Court decided in favor of the agent’s right to remove the invaders. Settlers were forced out but relocated nearby and their settlement served as a portal for illegal resource exploitation on the reservation. The Jerome Commission acted dishonorably and thus committed a further injustice. The reservation was finally opened to white settlement in 1901. 2512. Montgomery, Andrew S. “Tribal Sovereignty and Congressional Domain: Rights-of-Way for Gas Pipelines on Indian Reservations.” Stanford Law Review 38 (November 1985): 195–225. Tribal–gas right-of-way issues create competing interests and have posed challenges for the courts. Pipeline companies argue that they are transporting gas for the public’s interest, as defined by the Natural Gas Act of 1982, while tribes claim sovereignty. To eliminate tribal consent for a pipeline, the FERC must have an act of Congress or claim the right based on tribal dependent status. A potential solution is to secure tribal consent and judicial oversight of the companies. 2513. Moynihan, Ruth Barnes. “The Patent and the Indians: The Problem of Jurisdiction in Seventeenth-Century New England.” American Indian Culture and Research Journal 2, no. 1 (1977): 8–18. Contrasts the common English belief that the right of discovery, Christian superiority, possession, and

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proper use of land justified appropriation of Indian land with Roger Williams’s divergent opinion. Williams defended Native rights to, and jurisdiction over, their own territory and stressed the need for Anglo–Indian cooperation and co-occupancy. Had English settlement proceeded in the manner Williams argued for, both Indians and settlers would have been spared from unnecessary conflicts. 2514. Newcomb, Steven T. “The Evidence of Christian Nationalism in Federal Law: The Doctrine of Discovery, Johnson v. McIntosh, and Plenary Power.” New York University Review of Law & Social Change 20, no. 2 (1993): 303–41. The discovery doctrine Justice Marshall described in 1823 only “formalized the United States’ own theoretical version of the age-old proposition that Christian nations had the divine right to take possession of and to assume domination over non-Christian lands.” England bequeathed its claim to the U.S. 2515. Newcomb, Steven. “In the Name of God, Gold and Greed: The United States versus the Western Shoshone Nation.” Native Americas 21 (Spring 2004): 28–41. Using the Dann sisters’ fight to keep their Shoshone lands in Nevada as an example, Newcomb contends that the U.S. possesses superior land rights over tribal peoples’ claims based on a past concept of “Right of Christian Discovery.” This in turn has been translated into Congress’s plenary power over tribal nations. This contemporary version of right of discovery has diminished tribal sovereignty. 2516. Newhouse, Michael R. “Recognizing and Preserving Native American Treaty Usufructs in the Supreme Court: The Mille Lacs Case.” Public Land & Resources Law Review 21 (2000): 169–200. Contemporary tribal treaty usufructs, “the right to enjoy resources from the land that belongs to another,” do not depend on occupancy or title. This legal principle is the foundation for the Mille Lacs Chippewa Band’s suit against Minnesota. 2517. Newton, Nell Jessup. “At the Whim of the Sovereign: Aboriginal Title Reconsidered.” Hastings Law Journal 31 (July 1980): 1215–85. The 1954 Supreme Court opinion in Tee-Hit-Ton Indians v. United States was a blow to tribal aboriginal title claims. The court ruled this Alaskan tribe only had a right to occupy the lands, not a property right to the lands. Although most tribal reservation lands have treaty guarantees confirming title, the same is not true regarding aboriginal title. 2518. Nissenbaum, Paul and Paul Shadle. “Building a System for Land-Use Planning: A Case Study for the

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Puyallup Tribe.” In What Can Tribes Do? Strategies and Institutions in American Indian Economic Development, edited by Stephen Cornell and Joseph P. Kalt, 135–78. Los Angeles: UCLA, American Indian Studies Center, 1992. This Washington State tribe suffered from “a lack of long-range planning, and the absence of a coherent land-use evaluation system,” both of which were prerequisites to reestablish control over its historic land base. 2519. Nissenbaum, Paul and Paul Shadle. Evaluating Land Use Proposals: A Comprehensive System for the Puyallup Tribe of Indians. Harvard Project on American Indian Economic Development, John F. Kennedy School of Government, Cambridge, MA: Harvard University, April 1991. The shortcomings of a land management system need to be addressed before the tribe can take advantage of the stipulations set forth in the 1988 land claims settlement act. 2520. Oakley, Andrea Geiger. “Not On Clams Alone: Determining Indian Title to Inter-tidal Lands.” Washington Law Review 65 (July 1990): 713–30. United States v. Aam began as an equal footing case, where Washington claimed that upon entering the Union, the beds of navigable waters became state property, but a question arises when the water is on a reservation. The Ninth Circuit Court of Appeals developed a per se test to rebut state arguments on this issue. 2521. O’Brien, Jean M. Dispossession by Degrees: Indian Land and Identity in Natick, Massachusetts, 1650–1790. Cambridge: Cambridge University Press, 1997. The community had been established in 1650 as a missionary experiment. The 1740s ushered in an era of land loss as Native property was sold off to English settlers. This Native community, however, did not vanish. O’Brien’s central focus is on differing Native and non-Indian perceptions of land. 2522. Olipant, J. Orin. “Encroachments of Cattlemen on Indian Reservations in the Pacific Northwest, 1870–1890.” Agricultural History 24 (January 1950): 42–58. Such encroachments occurred during this period on each of twelve reservations located in Oregon, Washington, and Idaho. Defects in federal policy were as much to blame as was “the ruthlessness of cattlemen.” Contributing factors included imprecisely defined reservation boundaries and the lack of properly drawn grazing leases.

2523. O’Neil, Floyd A. and Kathryn L. MacKay. A History of the Uintah-Ouray Ute Lands. Salt Lake City, UT: American West Center, 1982. A brief history of tribal efforts to maintain their land base and inherent rights. 2524. Ordon, Kimberly. “Aboriginal Title: The Trials of Aboriginal Indian Title and Rights—An Overview of Recent Case Law.” American Indian Law Review 13, no. 1 (1985): 59–78. Tribal land rights stem from aboriginal title and there are parallels between these two concepts that the courts recognized in the Dann II ruling, despite Congress’s stated intent to eliminate aboriginal title. Most decisions have been unfavorable to the continual existence of aboriginal title. 2525. Orlowski, D. Faith and Robbie Emery Burke. “Oklahoma Indian Titles.” Tulsa Law Journal 29 (Winter 1993): 361–83. With the division of lands between tribes, nonIndians, allottees, heirs, and state and local governments, understanding Indian land title is necessary for understanding the scope of tribal jurisdiction. 2526. Parlow, Anita. “Cry, Sacred Ground: Big Mountain, U.S.A.” American Indian Law Review 14, no. 2 (1986): 301–22. Congressional enactment of the Navajo–Hopi Relocation Act of 1974 was intended as the “final solution” to this intertribal land dispute. The Navajos filed suit in Manybeads v. United States, claiming First Amendment rights on Hopi Partitioned Lands. The issues are human rights and religious freedom issues. 2527. Petersen, William J. “Chouteau v. Molony.” Palimpsest 47 (March 1966): 120–28. A Fox village at Catfish Creek disputed nonIndian lead mining on lands previously mined by Little Night. The U.S. Supreme Court upheld a lower court decision, refusing to eject a non-Indian miner named Molony from the lands. The court ruled that lands originally granted by the Spanish passed to the U.S. in the Louisiana Purchase. 2528. Pfaller, Louis L. “Indian Diplomat at Large: Two Incidents in the Career of Major McLaughlin.” North Dakota History 42 (Spring 1975): 4–17. McLaughlin exemplifies the best sort of Indian agent. Among the challenges he handled were land frauds involving oil leases and townsite lots on the Osage reservation. 2529. Philp, Kenneth. “Albert B. Fall and the Protest from the Pueblos, 1921–1923.” Arizona and the West 12 (Autumn 1970): 237–54.

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Provides background on the Bursum bill and the fight against that legislation. Fall may have intentionally threatened the eviction of non-Indian claimants to Pueblo lands to encourage public outcry against the bill’s opponents. His tactics backfired, and the bill’s defeat may have influenced his decision to resign his cabinet post. 2530. “The Preservation of Unallotted Tribal Lands: Concurrent Federal Jurisdiction and Tribal Jurisdictions.” Columbia Journal of Law and Social Problems 9 (Winter 1973): 279–307. Due to the problems associated with checkerboard landownership patterns on many reservations, it is difficult to develop a comprehensive land program. One method of overcoming this problem is leasing the lands back to the federal government and they could not use the lands for industrial purposes or extensive agriculture. The National Park Service should administer the lands. 2531. Quail, Keith F. “The Tragic Story of Pueblo Indian Land Titles.” Journal of the Bar Association of the State of Kansas 6 (November 1937): 158–63. The U.S. assumption of former Mexican territory in 1848 resulted in Pueblo land losses, court cases such as Joseph and Sandoval, and the later ruling that the U.S. was the guardian of the Pueblo lands. 2532. Reeve, Frank D. “A Navaho Struggle for Land.” New Mexico Historical Review 21 (January 1946): 1–21. A successful effort to regain a small strip of territory south of the San Juan River in the 1880s was “a minor, but important triumph.” 2533. Ringold, A. F. “Indian Land Law—Some Fundamental Concepts for the Title Examiner.” Tulsa Law Journal 10, no. 2 (1975): 321–39. Laws pertaining to tribal lands present the title examiner with the most trouble because of the need to understand treaties, statutes, and court decisions that affected Oklahoma’s diverse tribal population. One has to examine the ability of allottees to alienate their lands. 2534. Rister, Carl Coke and Bryan W. Lovelace. “A Diary Account of a Creek Boundary Survey, 1850.” Chronicles of Oklahoma 27 (Autumn 1949): 268–302. Excerpts from a diary kept by an Army officer charged with surveying the boundaries between the Creek and Cherokee nations. 2535. Robbins, William G. “Extinguishing Indian Land Title in Western Oregon.” Indian Historian 7 (Spring 1974): 10–14. The U.S. was unable to control the flood of American immigrants. This was the imperial conquest of

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one people by another, and the Palmer treaties were negotiated to remove the Native Americans from white settlements. 2536. Robertson, Linday G. “Brief for the Appellant.” Kansas Journal of Law & Public Policy 9 (Summer 2000): 852–72. In this moot trial, the Supreme Court of the American Indian Nations finds that discovery did not result in English preemption of the newly discovered lands, nor vest title by discovery to the U.S. 2537. Rollings, Willard H. “Indian Land and Water: The Pueblos of New Mexico (1848–1924).” American Indian Culture and Research Journal 7, no. 1 (1983): 1–21. Discusses the ambiguous relationship that evolved between the various Pueblos and U.S. federal government, which stemmed from the special status those tribes had under Spanish and Mexican authority. These ambiguities were not resolved until the passage of the Pueblo Lands Act in 1924, which for the first time provided fair and effective federal protection of Pueblo lands. 2538. St. Jean, Wendy. “‘You Have the Land. I Have the Cattle’: Intermarried Whites and the Chickasaw Range Lands.” Chronicles of Oklahoma 78 (Summer 2000): 182–95. The tribe experienced a cattle boom in the late 1870s. Tribal government efforts to protect their public domain were circumvented by white ranchers who married Chickasaw women. 2539. Schifter, Richard. “Indian Title to Land.” American Indian 7 (Spring 1954): 37–47. Well-meaning Americans are unintentionally aiding those interested in dispossessing Indians of their lands by supporting proposed legislative efforts to liberate tribes. Indian claims funds should be used to help tribes build viable land-based economies, and these funds should be supplemented by federal money. 2540. Schifter, Richard and W. Richard West, Jr. “Healing v. Jones: Mandate for Another Trail of Tears.” North Dakota Law Review 51 (Fall 1974): 73–106. A three-judge federal district court panel decided the future allocation of Hopi and Navajo resources and the potential relocation of tribal people from one area to another, in an effort to conclude the Hopi–Navajo land dispute. This decision would force the relocation of tribal members belonging to both tribes, but mainly Navajos. 2541. Schlesinger, Robert A. The California Indian Lease. California Continuing Education of the Bar, 1967.

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Discusses problems and provides copies of forms and other documents to aid in implementation of long-term Indian land leases, with a focus on the Palm Springs area and the Agua Caliente Band of Mission Indians. 2542. Schwartz, E. A. “Sick Hearts: Indian Removal on the Oregon Coast, 1875–1881.” Oregon Historical Quarterly 92 (Fall 1991): 229–64. In 1875, Sen. John Mitchell attached an amendment to an appropriations bill that authorized the dispossession of 737,000 acres of land from nontreaty tribes ostensibly because of timber resources located there. The lands were taken from the Coast Reservation, which had been established by executive order in 1855. Mitchell misrepresented his amendment with careless disregard for the Indians. 2543. Schwarz, Maureen Trudelle. “Unraveling the Anchoring Cord: Navajo Relocation, 1974 to 1996.” American Anthropologist 99, no. 1 (1997): 43–55. The Navajo–Hopi Land Settlement Act of 1974 disrupted many tribal lives. Schwarz examines the tribal rationales for opposing the act. 2544. Scudder, Thayer. No Place to Go: Effects of Compulsory Relocation on Navajos. Philadelphia: Institute for the Study of Human Issues, 1982. Studies the potential effects of the 1974 law P.L. 93-531 mandating the relocation of over 5,000 Navajos and a much smaller number of Hopis from the Joint Use Area. The relocation will adversely affect most Navajos who will become increasingly dependent on the welfare system. 2545. Semple, W. F. Oklahoma Indian Land Titles Annotated. St. Louis, MO: Thomas Law, 1952. Three classes of federal statutes relate to Indian lands in Oklahoma: those related to the Five Civilized Tribes; to the Osage Nation; and to Indians mainly in western Oklahoma whose lands are controlled under the provisions of the General Allotment Act. Semple collects key statutes, ruling cases, and departmental regulations. Laws governing inheritance, jurisdiction, resource sales and leasing, and taxation are included. 2546. Seymour, Flora Warren. “Land Titles in the Pueblo Indian Country.” American Bar Association Journal 10 (January 1924): 36–41. Prior to New Mexico statehood, the Pueblos sold and managed their lands as anyone else in the territory, based on the Joseph decision rendered by the Supreme Court. After statehood and the passage of the New Mexico enabling act, the courts heard the Sandoval case and restricted Pueblo title, creating complex legal questions. Congress must remedy this land title conflict.

2547. Shipek, Florence C. Pushed into the Rocks: Southern California Land Tenure, 1769–1986. Lincoln: University of Nebraska Press, 1987. California Natives have been relatively successful in adapting from a “traditional legal tenure-use” system to a “modern legal” one. Key historical policy changes are discussed, including the 1891 Act for the Relief of the Mission Indians granting legal title in trust to band lands. Unlike elsewhere in the U.S., allotment did not destroy tribal or band structures, nor did it lead to large land loss. 2548. Singer, Joseph William. “Legal Theory: Sovereignty and Property.” Northwestern University Law Review 86 (Fall 1991): 1–56. The cause for alarm is that the Supreme Court has treated protected non-Indian fee property with legal guarantees that are denied Indian property owners. Tribal property issues become political issues. The court created double standards by denying tribal authority over non-tribal members living on the reservations and then making their property immune from tribal authority. 2549. Singer, Joseph William. Property Law: Rules, Policies, and Practices. Boston, MA: Little, Brown, 1993. Extensive study of property, including tribal title, restricted trust properties, original tribal title, treaty abrogation, and taking clauses. 2550. Smith, Chadwick and Faye Teague. “The Response of the Cherokee to the Cherokee Outlet Centennial Celebration: A Legal and Historical Analysis.” Tulsa Law Journal 29 (Winter 1993): 256–302. Cherokees do not celebrate the opening of the Cherokee Strip, because it led to further demands to open their lands. Despite Cherokee resistance, the Oklahoma tourist industry pushes the celebration as a time of joy. 2551. Stoffle, Richard W. “The Hopi, Navajo, Paiute, Zuni Land Dispues.” American Anthropologist 92, no. 3 (1990): 744–45. The Zuni and the Paiute also have claims to lands in the Hopi–Navajo land dispute settlement area. 2552. Stone, Joseph C. “The Present Status of Indian Land Law.” Proceedings of the Thirteenth Annual Meeting of the Oklahoma State Bar Association 13 (1919): 72–102. Overview of tribal land law in Oklahoma, which is in constant flux. Subjects include court decisions involving judgments against restricted lands, approval of deeds, oil and mining leases, and congressional legislation. 2553. Strickland, Rennard. “Friends and Enemies of the American Indian: An Essay Review on Native Amer-

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ican Law and Public Policy.” American Indian Law Review 3, no. 2 (1975): 313–31. When studying law, it is important to understand history and remember who were friends and foes. Strickland relies on Angie Debo and Francis Paul Prucha’s works to develop the legalistic and sad story of tribal land loss in Oklahoma. 2554. Strickland, Rennard. “Genocide-at-Law: An Historic and Contemporary View of the Native American Experience.” University of Kansas Law Review 34 (Summer 1986): 713–55. Describes the legal methods used to dispossess tribal property. In many cases, lawyers stood by doing nothing. There were the usual mistakes of omission that contributed to the destruction of tribal America. 2555. Stroll, Dawn. “Hopi–Navajo Land Dispute—1882 Rectangle—Sekaquaptewa v. McDonald.” Arizona State Law Journal 1978, no. 2–3 (1978): 333–41. This decision involved the 1914 federal survey and the 1965 survey of the Navajo Reservation and included 50,000 acres that were considered part of the Navajo Nation. The district court claimed that the land issue was settled in the earlier Healing decision, but the McDonald court reversed Healing, ruling that they were not entitled to determine if the 50,000 acres that were now in the joint area were, in fact, Navajo lands. 2556. Suagee, Dean B. “Tribal Voices in Historic Preservation: Sacred Landscapes, Cross-Cultural Bridges, and Common Ground.” Vermont Law Review 21 (Fall 1996): 145–224. Tribes should assume the role of caretakers of federal public lands. 2557. Sullivan, Julia E. “Legal Analysis of the Treaty Violations That Resulted in the Nez Percé War of 1877.” Idaho Law Review 40, no. 3 (2004): 657–93. The war began years before the first shot was fired, when the U.S. refused to fulfill its duty to protect the Nez Percé from white trespassers. The Nez Percé followed the agreement and reported to their agent white transgressions, but the nothing was done, leading to the fateful day in 1877. 2558. Sutton, Imre. “Cartographic Review of Indian Land Tenure and Territoriality: A Schematic Approach.” American Indian Culture and Research Journal 26, no. 2 (2002): 63–114. Presents a cartographic scheme for better demonstrating the evolution of Indian land tenure and land use, and provides commentary on the importance of doing so accurately. The article offers a guide to var-

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ious cartographic sources and methods with the goal of aiding researchers and tribes. 2559. Sutton, Imre. “Indian Land, White Man’s Law: Southern California Revisited.” American Indian Culture and Research Journal 18, no. 3 (1994): 265–70. The best way to finally end the Indian-non-Indian confrontation over land is to “follow a consistent, fair, and equitable policy of land restoration.” 2560. Sutton, Imre. “Sovereign States and the Changing Definition of the Indian Reservation.” Geographical Review 66 (July 1976): 281–95. Since an Indian reservation is more than a cultural homeland, problems emerge between states and tribes over the many poorly defined geographical variables found on reservations. These conflicts include resource use, because each sovereign has a differing interpretation of the reservation border. Outsiders living inside a reservation’s border is another variable that opens the door to jurisdictional disputes. 2561. Tamir, Orit. “Relocation of Navajo from Hopi Partitioned Land in Pinon.” Human Organization 50 (Summer 1991): 173–78. In the 1974 Land Resettlement Act, over 10,000 Navajos and 100 Hopis were to be removed, and many of the Navajos were to be relocated to Pinon. This unplanned relocation hurt both the relocates and the host Navajos. 2562. Taylor, William B. “Land and Water Rights in the Viceroyalty of New Spain.” New Mexico Historical Review 50 (July 1975): 189–212. Centers on Pueblo rights between 1535 and 1810. Spain considered these Natives civilized in contrast to their less sedentary neighbors, and thus more preferential, but paternalistic and exploitive legal standards, applied to them. Spanish laws guaranteed Pueblo land rights and often included water rights. Water rights were based primarily on prior use and the protection of special advantage for sedentary Indians. Upstream advantage was only a tertiary consideration. 2563. Tehan, Kevin. “Of Indians, Land, and the Federal Government: The Hopi–Navajo Land Dispute.” Arizona State Law Journal 1976, no. 1 (1976): 173–212. President Ford signed P.L. 93-531 in 1974, hoping to settle this land dispute. The law did not settle the problem, but represents a partial victory for Hopis desiring to claim the Joint Use Area and an opportunity to gain land near the village of Moenkopi. Navajos view the act as severing land ties that reach back generations, but also an opportunity to gain new lands through purchase. To remedy the dispute, the Seaquaptewa v. MacDonald court should follow the

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standard of “fairness and equity” when dividing assets. 2564. Thiem, Rebecca S. “Indian Rights to Lands Underlying Navigable Waters: State Jurisdiction under the Equal Footing Doctrine vs. Tribal Sovereignty.” North Dakota Law Review 55, no. 3 (1979): 453–74. Most courts follow the rule that tribes own the land under waterways on reservations based on principles of federal Indian law—that tribes possess sovereignty, the trust relationship, and treaty construction. 2565. Thompson, Jerome. “Land and Personal Sovereignty.” Palimpsest 69 (Summer 1988): 88–93. Discusses tribal views of land and individual ownership in Iowa, and contrasts these views to those prevailing in Iowa’s non-Indian settlement. A cultural clash relative to land use and ownership led to EuroAmerican disregard for Native land claims. 2566. Thompson, Vern E. “A History of the Quapaw.” Chronicles of Oklahoma 33 (Autumn 1955): 360–83. Begins with European contact and covers the effects of the Louisiana Purchase, Quapaw fraudulent dispossession from Arkansas lands by an 1824 treaty, relocation to Indian Territory, the allotment of their lands, and the discovery of lead and zinc on their lands. A portion of the article is ethnographic. 2567. Tracey, Patricia Cleland. “Cherokee Gold in Georgia and California.” Journal of the West 39 (January 2000): 49–54. Overview of Native American land loss in Georgia and California. Notes the irony of the Cherokee’s inability to mine gold on their own land, but freedom to mine gold during the California Gold Rush. 2568. Trafzer, Clifford E. and Richard D. Scheuerman. “‘This Land Is Your Land and You Are Being Robbed of It’: Dispossession of Palouse Indian Land, 1860–1880.” Idaho Yesterdays 29 (Winter 1986): 2–12. Chronology of the tragic and drawn-out loss of Palouse land after their military defeat in 1858, ending in their exile in Indian Territory. 2569. “Tribal Property Interests in Executive-Order Reservations: A Compensable Indian Right.” Yale Law Journal 69 (March 1960): 627–42. Court decisions concerning the rights of American Indians living on executive order reservations initially provided only for right of occupancy. Congress passed legislation in 1927 pertaining to oil and gas leases that provide Indians living on executive-order reservations compensable rights in their property.

2570. Tsosie, Rebecca. “Land, Culture, and Community: Reflections on Native Sovereignty and Property in America.” Indiana Law Review 34, no. 4 (2001): 1291–312. In Brendale v. Confederated Tribes and Bands of Yakima (1989), the Supreme Court ruled that tribes do not have the authority to regulate non-Indian land use within the reservation boundaries, thus curtailing tribal sovereignty over non-Indian residents. Since there is a wide gap between cultural definitions of property, it is important to develop a new relationship between people and property, and the courts have to stop separating tribal peoples from their lands. 2571. Tubbs, Scott. “Prelude to the Black Hills Gold Rush of 1876.” Annals of Wyoming 54 (Spring 1982): 36–50. The 1868 Treaty of Fort Laramie included the Black Hills as part of the Great Sioux Indian Reservation. Tubbs gives a chronological account of the events leading to the eventual occupation of the hills by non-Indian miners. 2572. Tyler, S. Lyman. “The Zuni Indians under the Laws of Spain, Mexico, and the United States.” In Zuni and the Courts: A Struggle for Sovereign Land Rights, edited by E. Richard Hart, 60–71. Lawrence: University Press of Kansas, 1995. Discusses Zuni historical legal status and comments on Supreme Court decisions, including Sandoval. The U.S. did not uphold its guaranteed protections of Pueblo lands, but the claims process offers tribes the chance to seek justice. 2573. Vance, Ann Gifford. “Indian Law-Ownership of Lands Underlying Navigable Waters and Limits to Tribal Sovereignty.” Land and Water Review 17, no. 1 (1982): 189–205. The Crow Tribal Council passed an ordinance in 1974 barring non-members from hunting and fishing on the reservation, but the state of Montana continued to issue state licenses that were valid on the reservation. The U.S. initiated the case as trustee and the Supreme Court ruled that the U.S. possessed title to the Big Horn River. Indian sovereignty rights clashed with non-Indians rights and the Court very narrowly defined what those tribal sovereign rights were in respect to reservation hunting and fishing. 2574. van de Logt, Mark. “‘The Land Is Always with Us’: Removal, Allotment, and Industrial Development and Their Effects on Ponca Tribalism.” Chronicles of Oklahoma 83 (Fall 2005): 326–41. Because their relationship to the land was essential to Ponca identity, threats to the land between 1877 and 1930 threatened their tribalism. The pollution of their Oklahoma land and water “forced the Indians to

Land Law and Property Rights

abandon their traditional village-oriented lifestyle and adopt the more individualistic social pattern of Euro-American society.” 2575. Warde, Mary Jane. “Fight for Survival: The Indian Response to the Boomer Movement.” Chronicles of Oklahoma 67 (Spring 1989): 30–51. Tribes saw the opening of the Unassigned Lands as tragic. David L. Payne moved illegally onto tribal lands a second time in 1880 to secure a victory in court. Tribal leaders met in convention to defeat Payne and find common solutions to impede the intrusions. The tribes scored a victory, but a short-lived one. 2576. Washburn, Wilcomb E. “The Meaning of ‘Discovery’ in the Fifteenth and Sixteenth Centuries.” American Historical Review 68 (October 1962): 1–21. Discusses the colonizers’ travels to the Western Hemisphere and how they interpreted discovery to rationalize the creation of land claims. 2577. Washburn, Wilcomb E. “The Moral and Legal Justification for Dispossessing the Indians.” In Seventeenth Century America, edited by James Morton Smith, 15–32. Chapel Hill: University of North Carolina Press, 1959. Colonial governments used various justifications, including papal or royal grant, discovery, and possession, all of which aimed to exclude other Europeans rather than stemming from concern for Native rights. American treatment of Indians has been based on a “disregard of moral principle and exaltation of the fluctuating pronouncements of the white man’s law.” Washburn carries the discussion through the Marshall decisions and establishment of the ICC. 2578. Watson, Blake A. “State Acquisition of Interests in Indian Land: An Overview.” American Indian Law Review 10, no. 2 (1982): 219–56. The federal government condemned 1.8 million tribal acres between 1936 and 1974, and there are no figures on state takings of tribal lands. Federal and state powers of eminent domain are of great concern to tribal America. Despite the so-called federal protection from state laws, the Supreme Court decided in United States v. Clark that states have a right to condemn “inversely” tribal lands, often for right of way. 2579. Weinberg, Bill. “Requiem for Big Mountain: The Road to Relocation Is Unrelenting.” Native Americas 14 (Fall 1997): 30–39. Under the 1974 law, most of the Navajos were relocated from Black Mesa, and the holdouts faced eviction after the July 7, 1986, deadlines passed. Some Navajos have been allowed to stay if they

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signed agreements with the Hopi government for long-term leases. Both tribes claim the land is dotted with their sacred sites, and Peabody Coal Company has adversely affected the landscape and the water. 2580. Whitson, Hollis A. “A Policy Review of the Federal Government’s Relocation of Navajo Indians under P.L. 93-531 and P.L. 96-305.” Arizona Law Review 27, no. 1 (1985): 371–414. To settle the matter, there should be a federal policy-making process. Tribal attorneys should be removed from the process and those most affected should make decisions that will end forced relocation and provide the Hopi compensation. 2581. Whittenburg, James P. “‘The Common Farmer (Number 2)’: Herman Husband’s Plan for Peace between the United States and the Indians, 1792.” William and Mary Quarterly 34 (October 1977): 647–50. Husband, a pamphleteer, rejected the Confederation’s right of conquest theory to dispose of tribal lands and their land right. He favored the purchase approach since it was their God-given right to sell the lands. 2582. Wicks, Hamilton S. “The Opening of Oklahoma.” Chronicles of Oklahoma 4 (June 1926): 129–42. An account of Oklahoma’s settlement, lamenting the fact that Indians are “veritable American barons” possessing more lands than they require. 2583. Wilkins, David. “Quit-Claiming the Doctrine of Discovery: A Treaty-Based Reappraisal.” Oklahoma City University Law Review 23 (Spring and Summer 1998): 277–315. Reviews the history of discovery’s use as a legal tool to dispossess tribal America of its property and person. Discovery must be understood in its different forms and differing intents. The worst error was Justice Marshall’s judicial misunderstanding of discovery. He made a political decision. 2584. Williams, H. David. “Gambling Away the Inheritance: The Cherokee Nation and Georgia’s Gold and Land Lotteries of 1832–1833.” Georgia Historical Quarterly 73 (Fall 1989): 519–39. Lottery winners and mining companies were so struck with “gold fever” and enthused about the prospect of gaining instant riches “that the native Cherokees were regarded as less than human.” 2585. Williams, Robert A., Jr. “Jefferson, the Norman Yoke, and American Indian Lands.” Arizona Law Review 29, no. 2 (1987): 165–94. Describes the different legal theories prevalent in the American colonies. Eventually, these colonial policies pointed toward right of discovery and the

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end result was John Marshall’s famous decision in Johnson v. McIntosh, 1823.

Shoshones operate their range units as individuals while the Arapaho employ a community basis.

2586. Williams, Robert A., Jr. “The Rights and Status of Indigenous Peoples under International Law during the Classic Era Treaty Period (1600–1840).” Law & Anthropology 5 (1990): 237–55. In the colonial period, Western nations recognized tribal land rights and purchased lands. They accepted the tribes’ autonomy. The U.S. later rejected tribal property rights premises.

2589. Winkler, Ernest William. “The Cherokee Indians in Texas.” Texas State Historical Association Quarterly 7 (October 1903): 95–165. Discusses the origin of Cherokee land claims in Texas in 1819, as well as relations with the Mexican government. Cherokees insisted that Texas grant them the lands they occupied rather than accepting other lands granted to them in the 1830s.

2587. Wilms, Douglas C. “Georgia Land Lottery of 1832.” Chronicles of Oklahoma 52 (Spring 1974): 52–60. Provides details on Georgia’s surveying of Cherokee lands prior to removal. 2588. Wilson, Paul Burns. “Relationships of the Indian Reservation Land Tenure System to Land Use of the Wind River Reservation.” Annals of the Association of American Geographers 57 (December 1967): 806. Shoshone, Arapahoe, and whites live at Wind River. Non-Indians use most of the irrigated lands.

2590. Wishart, David J. An Unspeakable Sadness: The Dispossession of the Nebraska Indians. Lincoln: University of Nebraska Press, 1994. Begins by studying the traditional life of the Pawnee, Omaha, Ponca, and Otoe–Missouria inhabitants of Nebraska and then offers a chronological account of their nineteenth-century confinement to reservations and subsequent removal and territorial dispossession. The discussion includes land allotment’s effects.

Chapter 28 Land Claims and the Indian Claims Commissions

Congress established the ICC in 1946, creating work for appraisers since only monetary awards were permitted. Appraisers have to solve the problem of determining the fair market value at the time tribal property was taken.

2591. Anderson, Steven O. “Idaho v. United States: Taking a Wrong Turn in the Jurisprudence of the Equal Footing Doctrine.” Idaho Law Review 38, no. 3 (2002): 667–705. Idaho claimed authority over the Lake Coeur d’Alene lake bed. The high court erred because it examined documents written after statehood, a misapplication of the equal footing doctrine.

2596. Barney, Ralph A. “Legal Problems Peculiar to Indian Claims Litigation.” Ethnohistory 2 (Autumn 1955): 315–25. Describes unique problems associated with tribal claims litigation under the ICC, with an emphasis on the different legal grounds on which these claims originate.

2592. Antos, Susan T. “Indian Land Claims under the Nonintercourse Act.” Albany Law Review 44 (October 1979): 110–38. After centuries of land fraud, the Passamaquoddy tribe of Maine sued to get lands returned based on the 1790 Nonintercourse Act. Courts are reluctant to return lands to tribal nations because of the adverse effects on current landowners who purchased the property in good faith. This can be done through congressional negotiations.

2597. Barney, Ralph A. “Some Legal Problems under the Indian Claims Commission.” Federal Bar Journal 20 (Summer 1960): 235–39. The ICC was supposed to receive claims for five years and conclude its business in ten years, but the time was extended to April 1962 with 462 cases still pending. By 1960, there had been eighteen monetary recovery judgments for past federal misdeeds.

2593. Barker, Robert W. “The Indian Claims Commission—The Conscience of the Nation in Its Dealings with the Original American.” Federal Bar Journal 20 (Summer 1960): 240–47. Offers background on the ICC and proposes several ideas to improve the claims process.

2598. Barry, John Edward. “Oneida Indian Nation v. County of Oneida: Tribal Rights of Action and the Indian Trade and Intercourse Act.” Columbia Law Review 84 (November 1984): 1852–80. This complex case began in the early 1970s when the Oneida sought compensation for wrongful occupation by neighboring counties on their lands. The tribe has sought application of the Trade and Intercourse Act that was to protect tribal property rights. Hopefully, the Supreme Court will recognize their rights.

2594. Barney, Ralph A. “The Indian Claims Commission.” In American Indian Ethnohistory: Indians of the Southwest, edited by David Agee Horr, 13–16. New York: Garland Publishing, 1974. Summarizes the ICC history as an introduction to the Garland American Indian Ethnohistory series, which presents documents related to tribes and groups that went through the ICC process in the 1950s and 1960s.

2599. Barsh, Russel Lawrence. “Indian Land Claims Policy in the United States.” North Dakota Law Review 58, no. 1 (1982): 7–82. Critical of the land claims settlement decisions, concluding that the monetary awards have been inadequate

2595. Barney, Ralph A. “Indian Claims, or the Historical Appraisal.” Appraisal Journal 31 (April 1963): 169–77.

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in terms of replacing property taken and “meeting the tribes’ current economic needs.” Congress wanted the claims process to proceed as a liquidation of past property lost and tribes wanted the process to rebuild what had been taken. Awarding federal lands to tribes in lieu of monetary payments offers hope for better settlements. 2600. Beals, Ralph L. “The Anthropologist as Expert Witness: Illustrations from the California Indian Land Claims Case.” In Irredeemable America: The Indians’ Estate and Land Claims, edited by Imre Sutton, 139–55. Albuquerque: University of New Mexico Press, 1985. The expert academic witness must be above conflict. Beals, by the judge’s decision, became a friend of the court. Often the social scientist becomes the advocate or the policy-maker, but the political system makes the political decisions. 2601. Bekken, James M. “Indians—Reservations— Jurisdictional Effects of Surplus Land Statute upon Traditional Boundaries of an Indian Reservation.” North Dakota Law Review 52 (Winter 1975): 411–19. An 1891 act opened the unallotted lands on the Lake Traverse Reservation in South Dakota. The question before the court focused on whether these lands that homesteaders settled remained part of the reservation. In DeCoteau v. District Court for the Tenth Judicial District, the Eighth Circuit Court of Appeals ruled that these fee lands were removed from the reservation. 2602. Bell, Sharon J. “Osages, Iron Horses and Reversionary Interests: The Impact of United States v. Atterberry on Railroad Abandonments.” Tulsa Law Journal 20 (Winter 1984): 255–85. When the railroad gave up its right of way through the Osage Reservation, the tribe claimed that the land reverted to them, but the court decided that the land reverted to the abutting landowner. 2603. Bennett, Robert L. “Building Better Economies with Land Settlement Funds.” Human Organization 20 (Winter 1961–1962): 159–63. The Confederated Bands of Utes received an ICC settlement in 1950. They are now at a crossroads. They can spend the money as unearned income, as per capita payments, or they can seek to build longterm economic industries. 2604. Bergman, Gene. “Defying Precedent: Can Abenaki Aboriginal Title Be Extinguished by the ‘Weight of History.’” American Indian Law Review 18, no. 2 (1993): 447–85. In State v. Elliot, the Vermont State Supreme Court denied the Abenaki their aboriginal title. The court

created a new test that eliminated any clear expression of a sovereign and eliminated tribal aboriginal title in the interests of land title insurance companies. This case has influenced other New England states in their fight against tribal land claims. 2605. Bonaparte, John C. “Haudenosaunee Land Claims.” Native Americas 17 (Spring 2000): 24–27. The jury awarded the Cayugas a low damages amount of $36.9 million to protect the taxpayers and end the conflict with the tribe. This award leaves the pending cases in Iroquois land cases against New York in jeopardy. 2606. Brann, Amy C. “Karuk Tribe of California v. United States: The Courts Need a History Lesson.” New England Law Review 37, no. 3 (2002–2003): 743–80. In this case, the Federal Circuit court denied the Karuk people compensation for their property rights based on the faulty reasoning that the reservation was created by an executive order. 2607. Brodeur, Paul. Restitution: The Land Claims of the Mashpee, Passamaquoddy, and Penobscot Indians of New England. Boston, MA: Northeastern University Press, 1985. An attorney involved in the litigation discusses tribal land claims cases in the 1960s and 1970s that involved lands taken in violation of the Nonintercourse Act. 2608. Brown, Aaron R. “Judgments: ‘Brothers’ Fighting Over Indian Money: The Right of Seminole Freedmen to a Portion of the Indian Claims Judgment Fund.” American Indian Law Review 11, no. 2 (1983): 111– 24. Prior to 1823, African Americans and Seminoles living in Florida owned land in common and, as a result, should have a share of the land claims settlement. 2609. Buchin, Joanne. “Indian Law-Access to the Federal Courts.” Land and Water Law Review 21, no. 1 (1986): 89–97. The Oneida brought suit against New York in 1970, claiming a 1795 land sale did not comply with the 1793 Trade and Intercourse Act. The Court wrote that Native Americans have a common law right to enforce their land rights in federal court. 2610. Bucy, Pamela. “This Is Our Land, Or Coeur d’ Alene Tribe of Idaho v. State of Idaho.” Public Land & Resources Law Review 19 (1998): 113–29. To establish exclusive tribal ownership over lands, “tribes are filing quiet title actions against states in which their reservations are located.” The Coeur d’Alene tribe has done so against Idaho. On appeal, the Supreme Court dismissed this case, relying on Ex Parte Young.

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2611. Camp, Laurie Smith. “Land Accretion and Avulsion: The Battle of Blackbird Bend.” Nebraska Law Review 56, no. 4 (1977): 814–35. A peninsula, created by the Missouri River curving from Nebraska toward Iowa, was included as Omaha land in the Omaha Treaty of 1854. The Omaha and U.S. filed suit in 1975 against landowners in Iowa living along the river after the peninsula vanished following a river change to a shorter course. The U.S. District Court for Northern Iowa decided that the river moved by accretion, not avulsion, and therefore the Omaha were not entitled to the land that had been lost. 2612. Campisi, Jack. The Mashpee Indians: Tribe on Trial. Syracuse, NY: Syracuse University Press, 1991. The Mashpees of Cape Cod claimed the right to recover lost lands based on the Indian Trade and Intercourse Act of 1790, but the court decided that they were not a tribe and denied their claim. Campisi focuses on the meaning of the term “tribe” and ways in which “anthropological and historical data were used and abused in a courtroom setting.” 2613. Campisi, Jack. “The Trade and Intercourse Acts: Land Claims on the Eastern Seaboard.” In Irredeemable America: The Indians’ Estate and Land Claims, edited by Imre Sutton, 337–62. Albuquerque: University of New Mexico Press, 1985. Eastern tribal land claims are different than western ones, since many have hinged on the violations of the Trade and Intercourse Acts passed during the 1790s. In some cases, the tribes won monetary and land restoration and ended the legal argument that the thirteen original states hold exempt positions that permit them to interfere in tribal affairs. 2614. Carlson, Leonard A. “What Was It Worth? Economic and Historical Aspects of Determining Awards in Indian Land Claims Cases.” In Irredeemable America: The Indians’ Estate and Land Claims, edited by Imre Sutton, 87–109. Albuquerque: University of New Mexico Press, 1985. Applies economic theory to examine the ICC’s award practices. The practice of a tribal award plan reduced tribal and individual choice. Interest must be paid on the land and that interest should be inflation adjusted, and there is no reason not to award the interest claims. Returning land, a tribal preference, was not an option. 2615. Carriker, Robert C. “The Kalispel Tribe and the Indian Claims Commission Experience.” Western Historical Quarterly 9 (January 1978): 19–31. Discusses the complicated efforts by the Kalispel Tribe of northeastern Washington to win compensation for lands taken illegally by the U.S. The claims

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process can be linked conceptually to termination policy. 2616. Carrillo, Jo. “Identity as Idiom: Mashpee Reconsidered.” Indiana Law Review 28, no. 3 (1995): 511–45. In their Nonintercourse Act land claim against the U.S., the Mashpee faced great odds. They became outsiders in their own land due to gradual changing land ownership patterns. The specific ways they lost control can be documented in local records. The Mashpee had to determine if they were a tribe with standing. They lost their case, but all tribal nations have established rights that ought to be respected. 2617. Carroll, Jane Lamm. “Dams and Damages: The Ojibway, The United States, and the Mississippi Headwaters Reservoirs.” Minnesota History 52 (Spring 1990): 2–15. Ojibways received over three million dollars in 1985 for claims against the U.S. for lands lost to a federal dam and reservoirs projects at the headwaters of the Mississippi River. The tribe deemed earlier compensation insufficient and pursued a higher payment. Since World War II, the Army Corps of Engineers has made a greater effort to minimize effects on the tribe’s land and resources. 2618. Carter, Nancy Carol. “Race and Power Politics as Aspects of Federal Guardianship over American Indians: Land-Related Cases, 1887–1924.” American Indian Law Review 4, no. 2 (1976): 197–248. Discusses the federal government’s legal premise in several landmark cases, such as Kagama, Chickasaw Nation v. United States, Cherokee Nation v. Hitchcock, and Lone Wolf. 2619. Chapman, Berlin B. “The Day in Court for the Kiowa, Comanche and Apache Tribes.” Great Plains Journal 2, no. 1 (1962): 1–21. In 1960, a long struggle ended for these three tribes to obtain compensation for lands the U.S. took in 1900. The ICC awarded them slightly more than two million dollars, providing each member only $200 for the 1900 land cession. 2620. Chapman, Carye Cole. “Railroads across Tribal Lands.” American Indian Law Review 20, no. 2 (1995–1996): 489–508. The Rock Island and Pacific and the Choctaw and Chickasaw Nations land issues surfaced during bankruptcy proceedings. The landowners demanded their property to be returned, but the state claimed control over the land and would not relinquish it to the abutting landowners. 2621. Christie, John C., Jr. “The Catawba Indian Land Claim: A Giant among Indian Land Claims.” American Indian

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Culture and Research Journal 24, no. 1 (2000): 173–82. Thirteen years of litigation ended with the passage of the Catawba Land Claim Settlement Act, ending tribal claims to lands in South Carolina and awarding the tribe trespass damages. 2622. Christie, John C., Jr. “Indian Land Claims Involving Private Owners of Land: A Lawyer’s Perspective.” In Irredeemable America: The Indians’ Estate and Land Claims, edited by Imre Sutton, 233–46. Albuquerque: University of New Mexico Press, 1985. Contemporary tribal land claims bring non-Indian land ownership into a political–legal conflict. Since legislation would be a more equitable solution in the eyes of non-Indians, congressional involvement is important in tribal land claims involving private property owners. 2623. Churchill, Ward. “The Black Hill Are Not For Sale: A Summary of the Lakota Struggle for the 1868 Treaty Territory.” Journal of Ethnic Studies 18 (Spring 1990): 127–42. Brief overview of the Lakota Nation’s famous Black Hills claim against the U.S., ending with Senator Bill Bradley’s bill to return the federal lands in the Black Hills to the Lakota people. 2624. Churchill, Ward. “Charades, Anyone? The Indian Claims Commission in Context.” American Indian Culture and Research Journal 24, no. 1 (2000): 43–68. Critical of the ICC as a permanent solution to the Indian problem. The long process and the great number of claims accomplished nothing other than to “update the legal parity.” 2625. Churchill, Ward. “The Earth Is Our Mother: Struggles for American Indian Land and Liberation in the Contemporary United States.” In The State of Native America: Genocide, Colonization, and Resistance, edited by M. Annette Jaimes, 139–88. Boston, MA: South End Press, 1992. Survey of the historical and ongoing struggle for Native lands that has defined the U.S.–Native relationship. Special attention is devoted to the ICC, and land claims involving the Iroquois, Black Hills, and Western Shoshones. The success of any American revolution seeking social justice must follow from American Indians’ success at reclaiming their lands. 2626. Clemmer, Richard O. “‘The Legal Effect of the Judgment’: Indian Land Claims, Ecological Anthropology, Social Impact Assessment, and the Public Domain.” Human Organization 63 (Fall 2004): 334–45. Discusses the Western Shoshone land claim that covers much of Nevada. This aboriginal land is man-

aged by various federal agencies. To understand this situation, politics has been incorporated into ecological anthropology. Other tribes have also been isolated from the discussions involving aboriginal lands. 2627. Clinton, Robert N. “The Eastern Indian Land Claims: A Reply.” New York State Bar Journal (August 1981): 354–75. The law favors the eastern tribal land, and these claims “test whether the nation truly has a government of laws and not men.” 2628. Clinton, Robert N. and Margaret Tobey Hotopp. “Judicial Enforcement of the Federal Restraints on Alienation of Indian Land: The Origin of the Eastern Land Claims.” Maine Law Review 31, no. 1 (1979): 17–90. The eastern tribal land claims emerged from the historic constitutional conflict between states and the federal government over the control of Indian affairs. These cases exist today because historically some states refused to cede power to the federal government in the area of Indian affairs. As cases reach the courts, the realization of federal supremacy is being rewritten. 2629. Cohen, Felix S. “Indian Claims.” American Indian 2 (Spring 1945): 3–11. Before the ICC, many considered “our national sins were of purely antiquarian significance,” including the Supreme Court, which, in Northwestern Shoshone, denied the tribe a claims settlement. Proper Indian claims legislation, pending in Congress, should be passed. 2630. Coldebella, Gus P. and Mark S. Puzella. “The Landowner Defendants in Indian Land Claims: Hostages to History.” New England Law Review 37, no. 3 (2002–2003): 585–92. In 2002, a ten-year Indian land claims case that had clouded title to Grand Island, New York, was dismissed. This claim involved an 1815 treaty between the state and the Seneca. This dismissal was important to the innocent current property owners. The 1790 Trade and Intercourse Act had put these people’s property in jeopardy. 2631. Cole, D. H. “Tribal Bedlands Claims since Montana v. United States.” Public Land Law Review 6 (1985): 119–40. Prior to Montana, courts most often decided riverbed claims in favor of tribal claimants. After the Supreme Court’s ruling in Montana, the court ruled in favor of the tribes in five of seven cases. The pattern the court developed was to find exceptions to Montana based on the theory of “public exigency.”

Land Claims and the Indian Claims Commissions

2632. Cook, Charles A. “The Hunter Claim: A Colossal Land Scheme in the Papagueria.” Arizona and the West 15 (Autumn 1973): 213–44. In 1880, Robert Finley Hunter urged Papagos (Tohono O’odham) to file a suit seeking government recognition of their lands west of Tucson and ostensibly aided them by creating a 2.6-million acre claim. However, both his effort, and a later one by his partner Robert Martin, failed to gain the approval of U.S. government officials and the Supreme Court finally dismissed the suit in 1927. Hunter’s effort was actually a self-serving land scheme that revealed the “precariousness of Indian property rights” and “the gullibility of the public in accepting such schemes.” 2633. Cook-Lynn, Elizabeth. “Land Reform.” Wicazo Sa Review 14 (Spring 1999): 103–12. Transcribed speech arguing that land reform is required in such cases as the Black Hills claims case, and that the reconciliation movement “has been illadvised and is now defunct.” 2634. Coulter, Robert T. “Seminole Land Rights in Florida and the Award of the Indian Claims Commission.” American Indian Journal of the Institute for the Development of Indian Law 4 (August 1978): 2–27. The conservative Seminoles opposed any land claim settlement with the U.S., while others favored a settlement. Their reason for opposition was their treaty-land-based protections. The ICC-proposed settlement is unlawful and will jeopardize Seminole rights to their treaty lands. 2635. Crane, Daniel M. “Congressional Intent or Good Intentions: The Inference of Private Rights of Action under the Trade and Intercourse Act.” Boston University Law Review 63 (July 1983): 853–915. Liberal interpretation of cases in favor of tribes runs counter to the restrictive decisions found in implied right of action cases. A decision against the tribes would give current non-Indian owners justice in the present, but would not provide justice to the tribes for past violations. Legislative solutions, benefiting all parties, are important for land claims in Maine and Rhode Island. 2636. Crane, Jolene. “Lands and Natural Resources.” Denver Law Journal 61, no. 2 (1984): 357–68. Briefly discusses a wide array of Tenth Circuit Court of Appeals cases, including a tribal hunting and fishing case. 2637. Cutter, Donald C. “Clio and the California Indian Claims.” Journal of the West 14 (October 1975): 35–48. Offers an overview of the complexities involved in deciding Indian land claims cases dealing with terri-

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tory obtained through the Treaty of Guadalupe Hidalgo, and rates the merits of the cases presented by the plaintiffs and the defense. The California claims were instrumental in setting numerous precedents for other land claims cases involving tribes from former Spanish and Mexican territory. 2638. Dale, Nina. “County of Oneida v. Oneida Indian Nation: The Continuing Saga of American Indian Territorial Wars.” Pace Environmental Law Review 4 (Fall 1986): 221–51. In 1795, New York State entered into a land transaction with the Oneidas, but Congress never approved the transaction. In bringing suit, the clock was turned back to 1795 and the court had to decide in favor of the tribe. Their success has encouraged other tribes to initiate lawsuits of a similar nature. 2639. Danforth, Sandra C. “Repaying Historical Debts: The Indian Claims Commission.” North Dakota Law Review 49 (Winter 1973): 359–403. Criticizes the U.S. monetary payment approach to tribal land claims because tribal property losses cannot be measured simply by the monetary value of lost lands. 2640. Davis, John Joseph. “Land Claims under the Indian Trade and Intercourse Acts: The White Settlement Exception Defense.” Boston University Law Review 60 (November 1980): 911–32. The first Indian Nonintercourse Act was passed in 1790. In 1793 some Native Americans were exempted from the provisions of the legislation. That exception became permanent in 1802, permitting Indian trade in communities surrounded by white settlements. In 1978, the court, in Narragansett Tribe of Indians v. Southern Rhode Island Land Development Corp., decided that the exception clause did not apply to land sales. These eastern land claims are troublesome because both tribal and non-tribal parties are victims. 2641. Deloria, Vine, Jr. “Reflections on the Black Hills Claim.” Wicazo Sa Review 4 (Spring 1988): 33–38. Land claims is an alien concept to tribal nations who wanted to deal with foreign nations through treaties. When there is a settlement, the funds do not go to the tribal nation, but filter down to the BIA, where the money settlement is then distributed. 2642. Deloria, Vine, Jr. “The Western Shoshones.” American Indian Journal of the Institute for the Development of Indian Law 2 (January 1976): 16–20. The Western Shoshone claim twenty-four million acres of Nevada, declaring they never ceded their aboriginal rights. The conservative Shoshone oppose the claims settlement, but they must prove collusion between the U.S. and the prior claims attorney.

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2643. Downes, Randolph C. “How a Historical Society Helped Bring about the Award to the Ottawa Tribe.” Northwest Ohio Quarterly 47 (Winter 1974–1975): 4–14. In 1973, the ICC awarded the Ottawa over $263 million for a smallholding near Toledo. The essay discusses Robert F. Bauman’s work on Ottawa history that became an essential historical component for the tribe’s successful claim. 2644. Dukelow, Gayle L. and Rosalyn S. Zakheim. “Recovering Indian Lands: The Land Patent Annulment Suit.” Ecology Law Quarterly 2 (Winter 1972): 194–224. Based on the Alaskan experience of getting land instead of money for damages, annulment suits against U.S. land patents might be a way for tribes to regain lost lands. The probability of a successful land patent annulment suit is greater the less valuable the land involved. 2645. Dussias, Allison. “Squaw Drudges, Farm Wives, and the Dann Sisters’ Last Stand: American Indian Women’s Resistance to Domestication and the Denial of Their Property Rights.” North Carolina Law Review 77 (January 1999): 637–729. Carrie and Mary Dann, Shoshone sisters, have fought for their right to graze livestock on the tribe’s ancestral Nevada land that the U.S. claims as pubic domain. The sisters claim the Shoshone still have aboriginal title to the land. They have rejected the premise in Johnson v. McIntosh and continue to ranch despite court rulings. 2646. Dwyer, William E. “Land Claims under the Indian Nonintercourse Act: 25 U.S.C. §ß 177.” Boston College Environmental Affairs Law Review 7, no. 1 (1978–1979): 259–92. The District Court’s ruling in Oneida Nation of New York v. County of Oneida in 1977 brought the 1790 Trade and Intercourse Act into contemporary land claims litigation. Congress passed the act to regulate relations between states, tribes, and the U.S. There is legal doubt about the act’s appropriate role in judicial interpretations that Congress will have to face in light of growing land claims and frustrated current property owners. 2647. “Eminent Domain.” Harvard Law Review 72 (May 1959): 1372–75. The court ruled in Tuscarora Indian Nation v. FDC that tribal lands may be condemned and taken if doing so does not interfere with the purpose for which the reservation was created. 2648. Epstein, Richard A. “Property Rights Claims of Indigenous Populations: The View from Common

Law.” University of Toledo Law Review 31 (Fall 1999): 1–15. Understanding indigenous property rights reveals that property rights concepts can differ from one culture to another. The failure to understand indigenous property rights is a perpetual problem that is ongoing not only in the U.S., but the world. John Marshall’s Indian cases are the focus of this essay. 2649. Ericsson, Robert J. “The Navigation Servitude and Reserved Indian Property: Does the Rule of No Compensation Apply to Indian Interest in Navigable Waters?” Utah Law Review, no. 1 (1979): 57–76. States are not entitled to compensation for federal damage created by the high water mark of a navigable river. On the other hand, when the federal government damages tribal property, in a similar situation, the federal government is liable for damages because the U.S. creates a compensable interest when it confirms tribal title. 2650. Euler, Robert C. and Harry L. Naylor. “Southern Ute Rehabilitation Planning: A Study in Self-Determination.” Applied Anthropology: Problems of Human Organization 11 (Winter 1952): 27–32. The advent of claims money from the ICC encouraged tribal governments to plan for their futures. The Southern Ute and Ute Mountain have begun the planning process to improve their community, but the problems of dependency continue. For example, the planning board and the council are one in the same. Also, they want the BIA to handle their monies because they lack individuals to do that in the community. 2651. Formanek, Rjean K. “Blackbird Hills Indian Land Dispute Settled by Placing the Burden of Proving Title on the Non-Indian Party and Incorporating Nebraska Law into the Federal Standard.” Creighton Law Review 13 (1980): 1098–1102. State law often determines property ownership, but when tribal land is part of the dispute, federal law applies. In Omaha Tribe v. Wilson, the tribe claimed that the Missouri River changed course in the Blackbird Hills region of the Omaha Reservation due to avulsion. The court ruled against the non-Indians. It did not apply Title 25 U.S.C. section 194, and that decision placed the burden of proof on the nonIndians to make their claim to the land. 2652. Friedman, Howard M. “Interest on Indian Claims: Judicial Protection of the FISC.” Valparaiso University Law Review 5 (Fall 1970): 26–47. Critical examination of the ICC. The legislation permitted only a small number of subject matter claims to be addressed and permitted interest only on that small category of claims. The result was that the

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U.S. did not give full support to the Fifth Amendment. 2653. Ganter, Granville. “Sovereign Municipalities? Twenty Years after the Maine Indian Claims Settlement Act of 1980.” In Enduring Legacies, Native American Treaties and Contemporary Controversies, by Bruce E. Johansen, 25–43. Westport, CT: Praeger, 2004. In this settlement, the Wabanaki confederacy received an $81 million settlement and federal recognition. This was a victory but it “explicitly equated the regulatory rights of those Indian nations with those of state municipalities” and generated state–tribal conflict. 2654. Gestel, Allan Van. “The New York Indian Land Claims: The Modern Landowner as Hostage.” In Iroquois Land Claims, edited by Christopher Vecsey and William A. Starna, 123–39. Syracuse, NY: Syracuse University Press, 1988. The Cayuga and Oneida Indian Nations are currently pursuing claims involving New York State. Non-Indian landowners are held as “hostages” with neither the tribes nor the state or federal governments protecting their interests. Today’s tribal claimants have questionable connections to those Natives who originally lost these lands. Why should present-day landowners have to defend themselves when they are not responsible for past transgressions? 2655. Gestel, Allen Van. “The New York Indian Land Claims: An Overview and a Warning.” New York State Bar Journal (April 1981): 182–85, 212–16. Once the Iroquois initiated land claims in New York, title companies began refusing to insure those lands. Claimants seek to recover back rents. These are complex claims that must be “taken seriously,” but the U.S. has not taken necessary actions to resolve them. 2656. Gormley, Donald C. “The Role of the Expert Witness.” Ethnohistory 2 (Autumn 1955): 326–46. Discusses the role of the expert witness in the Indian claims process. 2657. Gross, David W. “Examining Aboriginal Rights in Submerged Lands: Coeur d’Alene Tribe v. Idaho.” Idaho Law Review 30, no. 1 (1993–1994): 139–57. A critique of the lower court case that declared the lakebed was state property. Gross calls attention to the ongoing dispossession of tribal lands. 2658. Gubin, John P. “The Black Hills Bill: Expressions of Doubt as to Its Justification and Constitutionality.” Wicazo Sa Review 4 (Spring 1988): 51–55. The Bradley bill intrudes into state affairs and is therefore unconstitutional. If passed, this bill would

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upset water rights, cloud land titles, and create a jurisdiction problem greater than one that already exists. 2659. Guenzel, Robert C. “Indians—Claims for Lands Taken by the United States Based on Original Possession.” Nebraska Law Review 26 (March 1947): 455–57. The Tillamook signed a treaty for a land cession, but the Senate never ratified the 1850 treaty. Under a 1935 law, the U.S. Court of Claims ruled that the Tillamook were entitled to compensation. This award was based on right of occupancy and that right could only be removed by war, treaty, or purchase. 2660. Gunter, William B. “Indian Lands: Joint Tribal Council of the Passamquoddy Tribe v. Morton.” American Indian Law Review 5, no. 2 (1977): 427–34. This is a reprint of the negotiations to settle the Maine tribal land claims. 2661. Hagan, William T. “‘To Correct Certain Evils’ the Indian Land Claims Cases.” In Iroquois Land Claims, edited by Christopher Vecsey and William A. Starna, 17–30. Syracuse, NY: Syracuse University Press, 1988. Explains the ICC’s historical background, and offers a critical analysis of the ICC’s activities. 2662. Hagan, William T. “Private Property, the Indian’s Door to Civilization.” Ethnohistory 3 (Spring 1956): 126–37. Senator Arthur Watkins argued that private property was the key to tribal success. This was just another defense of a long-standing claim. 2663. Haines, Francis. “The Nez Percé Tribe versus the United States.” Idaho Yesterdays 8 (Spring 1964): 18–25. Provides details on the course of claims cases first filed on behalf of the tribe in 1951. The claims were complicated by particular problems posed by disagreements over the original boundaries of Nez Percé lands, the value of the gold taken, and the market values of those lands when they were ceded. 2664. Handlin, Oscar and Mark Irving. “Chief Daniel Nimham v. Roger Morris, Beverly Robinson, and Philip Philipse—An Indian Land Case in Colonial New York, 1765–1767.” Ethnohistory 11 (Summer 1964): 193–246. This case involved poor white tenant farmers, the Wappinger tribe, and estate owners with grand designs for more landed wealth. The land in question was east of the Hudson in New York and involved fraudulent land patents. This edited document is sympathetic to the tribe.

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2665. Hanson, Randel D. “Contemporary Globalization and Tribal Sovereignty.” In A Companion to the Anthropology of American Indians, edited by Thomas Biolsi, 284–303. Malden, MA: Blackwell Publishing, 2004. Examines the ICC as one component of globalization and as a “dangerous opportunity” for tribal people to test their sovereignty. The ICC sought to settle past claims, but supporters of the legislation also wanted to get tribal lands and property. Tribes successfully preserved their sovereignty and succeed in their push for greater self-determination. 2666. Hanson, Stephen Cosby. “United States v. Sioux Nation of Indians: Political Questions, Moral Imperative and the National Honor.” University of West Los Angeles Law Review 13 (Spring 1981): 133–57. The Fort Berthold good faith test was ignored in the Sioux Nation’s claim in favor of a simple Fifth Amendment violation, but the Oglala began the process of seeking a return of the land. 2667. Hart, E. Richard. “The Coeur D’Alene Tribe’s Claim to Lake Coeur D’Alene.” American Indian Culture and Research Journal 24, no. 1 (2000): 183–88. The Coeur d’Alene people historically used the lake for many purposes. The creation of their 1873 reservation included part of the lake and they sued in 1973 to claim submerged lakebed ownership. In 1998, after several unsuccessful legal suits, the federal district court ruled that the U.S. held a beneficial interest for the tribe, opening the door to quiet lakebed title. 2668. Hart, E. Richard. “Zuni Claims: An Expert Witness’ Reflections.” American Indian Culture and Research Journal 24, no. 1 (2000): 163–71. The author was an expert witness for the Zuni in their aboriginal claim against the U.S. where they won nearly everything they asked for in 1990. In all, 25,000 acres was transferred to the Zuni through litigation and the Zuni Conservation Act. The key was that every year forty to sixty Zuni make a 110-mile pilgrimage to tribal historic and sacred sites to renew the world and now they have the right to go to Kolhu/wala:wa freely. 2669. Hart, E. Richard. ed. Zuni and the Courts: A Struggle for Sovereign Land Rights. Lawrence: University of Kansas Press, 1995. A collection of essays by various authors. The Zuni did not file a land claim with the ICC, but when the ICC awarded Zuni land to the Navajo, Zuni leaders sought their day in court that lasted three decades. In the course of this lengthy litigation, many of the scholars who provided expert testimony on behalf of the Zuni contributed to this text. Part one involves

Zuni aboriginal lands claims, and includes brief essays on Zuni traditional land use and history. Part two covers Zuni trust accounting claims, and part three involves a contemporary Zuni free-exercise claim. Articles discuss the use of government surveys, dendrochronology, oral history, and changes in word definitions. 2670. Hart, E. Richard. “The Zuni Land Conservation Act of 1990.” In Zuni and the Courts: A Struggle for Sovereign Land Rights, edited by E. Richard Hart, 91–102. Lawrence: University of Kansas Press, 1995. The act resulted from a negotiated settlement between the tribe and U.S. for damages to trust lands. Hart describes the damages the Zunis were able to document, the settlement, and the Zuni sustainable development plan which the 1990 act enabled them to implement. 2671. Hart, E. Richard. “Zuni Relations with the United States and the Zuni Land Claim”; “The Zuni Land Claim Victory.” In Zuni and the Courts: A Struggle for Sovereign Land Rights, edited by E. Richard Hart, 72–85; 86–87. Lawrence: University of Kansas Press, 1995. Discusses Zuni–U.S. relations and a claims suit filed in 1979. Zuni leaders showed great preparation and tenacity and were able to draw on four and a half centuries of experience with the Spanish, Mexican, and U.S. governments. The suit was a “great victory” for the tribe. 2672. Haught, Steve. “Due Process: Delaware Tribal Business Committee v. Weeks: The Participation of Kansas Delawares in Tribal Awards.” American Indian Law Review 5, no. 2 (1977): 369–80. The Supreme Court ruled that the Kansas Delaware could not participate in the claims settlement with the Oklahoma Delaware, leaving the promise of a fair settlement unfulfilled. 2673. Hauptman, Lawrence M. “Iroquois Land Issues: At Odds with the ‘Family of New York.’” In Iroquois Land Claims, edited by Christopher Vecsey and William A. Starna, 67–86. Syracuse, NY: Syracuse University Press, 1988. Past land losses continue to fuel tension between the Iroquois and New York as well as internal tribal tensions. Hauptman surveys the history of Iroquois land claims and recent state–tribal negotiations. State officials have recently pursued quick fixes instead of long-term resolution of these tensions. 2674. Hauptman, Laurence M. “Seneca Nation of Indians v. Christy: A Background Study.” Buffalo Law Review 46 (Fall 1998): 947–79.

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Not until 1881 did the Seneca become stable enough to bring suit to recover lands known as the mile strip in the town of Brant. The courts “insisted no federal issues were involved.” The Senate’s inability to ratify the 1826 treaty was at the heart of the land issue. The court permitted past land fraud to stand.

In Omaha Tribe v. Wilson, the Omaha wanted to get back Blackbird Bend on the Missouri River. The court briefly discussed section 194 in its opinion. Hotopp provides a greater analysis of this section of the opinion, concluding that it should be restricted to lands in trust.

2675. Hauptman, Laurence. “Who Owns Grand Island (Erie County, New York)?” Oklahoma City University Law Review 23 (Spring and Summer 1998): 151–74. Provides historical evidence that the state of New York does not own Grand Island. The tribal land claims case focused on the early Trade and Intercourse Acts, which are still in force, thus making the land Seneca land.

2681. “Indian Claims Commission 1975 Annual Report.” American Indian Law Review 4, no. 1 (1976): 175–88. The commission completed its largest award of $35 million to the Kiowa, Comanche, and Apache tribes of Oklahoma. The remaining part of the annual report provides routine data on the commission’s work.

2676. Heizer, Robert F., ed. The California Indians v. The United States of America (HR 4497). Socorro, NM: Ballena Press, 1978. List of the exhibits used in the California tribes’ claim against the U.S. in their case before the ICC. A short discussion of the case follows. 2677. Hodge, Ronald A. “Getting Back the Land: How Native Americans Can Acquire Excess and Surplus Federal Property.” North Dakota Law Review 49 (Winter 1973): 333–41. A how-to essay explaining the necessary procedures. Excess property and surplus property are two methods and each has its own drawbacks and advantages. 2678. Hoopes, Chad L. Domesticate or Exterminate: California Indian Treaties Unratified and Made Secret in 1952. Eureka, CA: Redwood Coast Publications, 1975. Small book published after the ICC awarded a claim to the California tribes for the abortive and ungratified 1952 treaties made with the U.S. and the tribal people of California. The claim payment will hardly purchase a dinner today. The appendix reprints the unratified treaty with California tribal nations and Commissioner Wozencraft’s report on California tribes. 2679. Hoover, Herbert T. “Yankton Sioux Tribal Claims against the United States, 1917–1975.” Western Historical Quarterly 7 (April 1976): 125–42. Documents Yankton efforts through the U.S. Court of Claims and the ICC to win compensation for lost territories, including the red pipestone quarry in southwestern Minnesota. The need for organization helped bring the tribe together as a political unit, and gave them crucial experience in dealing with the federal government. 2680. Hotopp, Margaret, “Preferential Burden of Proof Allocation in Indian Land Claims Cases.” Iowa Law Review 64 (January 1979): 386–407.

2682. “Indian Claims Commission 1977 Annual Report.” American Indian Law Review 6, no. 1 (1978): 256–58. Update on yearly activities. 2683. “Indians—United States Must Compensate for Appropriation of Lands Occupied by Tribes under Original Indian Title.” Harvard Law Review 60 (February 1947): 465–66. In United States v. Alcea Band of Tillamooks, the Supreme Court for the first time awarded “American Indians compensation for taking of lands held under a right of occupancy based solely upon aboriginal possession, a right referred to as ‘original Indian title.’” Previous cases required that compensation be awarded only for congressionally recognized lands. 2684. Inouye, Daniel. “1986 Black Hills Hearing on S. 1453.” Wicazo Sa Review 4 (Spring 1988): 10–17. Senator Bill Bradley introduced legislation to settle the Black Hills claim that included provisions for quiet title. The bill never passed, but the proposed legislation did provide short-term hope for the Lakota that their past land claims would be settled. Also discusses the significance of the Black Hills to the Lakota and the Bradley bill. 2685. Jaimes, M. Annette. “The Pit River Indian Land Claim Dispute in Northern California.” Journal of Ethnic Studies 14 (Winter 1986): 47–64. This tribal claim was settled initially for a pittance after offsets were made, then the ICC made additional compensation, but the tribe rejected the second settlement and in 1965 fired their attorney and began to assert their rights to the Pit River country. Through occupations, legal maneuverings, and extra-legal activities, the tribe fought for their rights. By the early 1970s, the constant conflict took its toll and more individuals assumed the position of settling, but the more staunch supporters would not give up.

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2686. Johnson, Kenneth M. K-344 or the Indians of California v. The United States. Los Angeles, CA: Dawson’s Book Shop, 1966. In 1929, the Attorney General of California filed the original California tribes’ lawsuit in the U.S. Court of Claims for the taking of lands during the mid-nineteenth century. This claim was based on the land‘s value at the time of taking. The court permitted the U.S. to take offsets for goods and services it provided. Using the value of the land at the time of taking became a precedent for the Indian Claims Commission Act. 2687. Jones, Gary T. “Enforcement Strategies for Indian Landlords.” American Indian Law Review 2 (Summer 1974): 41–60. When there is a default on tribal or individual trust property, there are three possible avenues for relief: state courts, federal regulations, and tribal courts. 2688. Kaplan, Michael J. “Issues in Land Claims.” In Irredeemable America: The Indians’ Estate and Land Claims, edited by Imre Sutton, 71–86. Albuquerque: University of New Mexico Press, 1985. The issue of aboriginal title is a crucial factor in tribal land claims. Congress decided that this title was inferior to the American right to discovery and that the Fifth Amendment did not protect aboriginal title property rights. This makes aboriginal title a political issue, not a legal issue, as tribal aboriginal rights were quickly disposed and taken by the U.S. 2689. Kelly, James Michael. “Indians—Extent of the “Fair and Honorable Dealings” Section of the Indian Claims Commission Act.” St. Louis University Law Journal 15 (Spring 1971): 491–507. The case of Gila River Pima–Maricopa Indian Community v. United States involves past treaties where the U.S. promised medical service, but did not deliver. The real issue is one of jurisdiction, involving whether the ICC has the authority to hear this case. The ICC and the Court of Claims ruled that no authority exists and the Supreme Court refused to hear the case on appeal. 2690. Kempers, Margot. “There’s Losing and Winning: Ironies of the Maine Indian Land Claims.” Legal Studies Forum 13, no. 3 (1989): 267–99. Tribes that were party to the Maine Indian Land Claims have found themselves under closer state supervision. Their status is closer to that of a municipality than a sovereign. 2691. Kendrick-Hands, Karen D. “State Sovereignty and Indian Land Claims: The Validity of New York’s Treaties Prior to the Nonintercourse Act of 1790.” Syracuse Law Review 31 (Summer 1980): 797–840.

Before the passage of the 1790 Trade and Intercourse Act, the individual states retained sovereignty as independent states, and under the Articles of Confederation maintained “their rights to preempt Indian land within their borders.” This power remained with the original states until the development of the federal government’s trust responsibility, and this limited trustee role cannot make federal law applicable to the New York land cases. The state is not blameless in this issue, but reopening a two-century-old case poses new problems. 2692. Kickingbird, Kirke and Karen Ducheneaux. One Hundred Million Acres. New York: Macmillan, 1973. Studies Indian land claims using a case method approach. Different tribal communities are examined and their relationship to their land and resource losses are described. The Menominee, Klamath, and Warm Springs are three of the several tribes that are discussed, as is the tribal takeover at Alcatraz. 2693. Knecht, Steven A. “Tribal Status and the Indian Nonintercourse Act: An Alternative to the Montoya Definition of Tribe.” Catholic University Law Review 39 (Spring 1980): 625–39. Montoya v. United States, in 1901, was the precedent for the current definition of a tribe. The court defined a tribe as “a body of Indians of the same or a similar race, united in a community under one leadership or government, and inhabiting a particular though sometimes ill-defined territory.” There is no justification for reaching this definition. The Montoya definition was applied in 1926, but in 1979, the court questioned this definition in Mashpee Tribe v. Seabury Corp. Knecht proposes a new definition that borrows from the ICC standard. 2694. Krauss, E. P. “The Irony of Native American ‘Rights’.” Oklahoma City University Law Review 8 (Fall 1983): 409–49. In the Lakota Nation’s Black Hills claim, the court did not discuss the cultural relevance of the region to the Lakota, but rather decided the suit based on federal plenary power. 2695. Lang, Gottfried O. “Economic Development and Self-Determination: The Northern Ute Case.” Human Organization 20 (Winter 1961–1962): 164–71. In 1950, the Uintah and Ouray Utes received a claims settlement from the ICC. Lang describes the transitions that took place politically within the Northern Ute community between mixed-bloods and full-bloods over the distribution and planning for future uses of these dollars. Problems of communication, language, and political barriers at the tribal level created great difficulties in the planning process.

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2696. Lavin, Chris. “Responses to the Cayuga Land Claim.” In Iroquois Land Claims, edited by Christopher Vecsey and William A. Starna, 87–100. Syracuse, NY: Syracuse University Press, 1988. For almost a decade, the Cayuga have pursued a claim for lands lost around Cayuga Lake. Lavin provides a detailed analysis of their claims process. Federal, state, and local “political snags” have delayed resolution. 2697. Lazarus, Edward. Black Hills/White Justice: The Sioux Nation versus the United States 1775 to the Present. New York: HarperCollins, 1991. The son of one of the attorneys who represented the Lakota during the last phase of the Black Hills claims writes a history of the lost legal battle to reach a settlement over the taking of the Black Hills. The Lakota did not want a monetary settlement, but wanted their lands returned, thus putting them at odds with legal counsel. 2698. Leavitt, John H. “Hodel v. Irving: The Supreme Court’s Emerging Taking Analysis—A Questions of How Many Pumpkin Seeds Per Acre.” Environmental Law 18 (Spring 1988): 597–634. Mary Irving, Patrick Pumpkin Seed, and Mary Poor Bear-Little Hoop Cross from Pine Ridge sued the U.S., claiming the Indian Land Consolidation Act of 1983 took property without compensation. The law returned heirship land to tribal ownership if it generated less than $100 per year income. The claimants prevailed and that section of the law was ruled unconstitutional. 2699. Le Duc, Thomas. “The Work of the Indian Claims Commission under the Act of 1946.” Pacific Historical Review 26 (February 1957): 1–16. Discusses the reasons for the creation of the ICC, its intended functions, and its shortcomings, including the difficulty attorneys have in finding live witnesses and the prohibitive expenses faced by tribes wishing to pursue claims. The Justice Department has used delaying tactics and “official chicanery.” But the ICC process can be credited with revealing vital information about past fraud. 2700. Lieder, Michael and Jake Page. Wild Justice: The People of Geronimo vs. the United States. New York: Random House, 1997. The Chiricahua Apache and their leader Geronimo were moved from San Carlos, to Florida and later to Oklahoma and, in the 1940s, placed on the Mescalero Apache Reservation. They maintained their distinct identity and finally received partial compensation for lost lands in the 1970s, when they received a payment that was far less than to what they were entitled.

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2701. Lief, Joshua N. “The Oneida Land Claims: Equity and Ejectment.” Syracuse Law Review 39, no. 2 (1988): 825–44. Between 1785 and 1842, New York and the Oneidas signed several treaties transferring six million acres to New York. In 1985, the Supreme Court decided that these claims would go forward based on “federal common law” violations “of their possessory rights.” These cases are tricky because innocent third parties own the lands. Congress should intervene and protect these landowners as well as the injured tribal parties. 2702. Light, Alfred R. “The Myth of the Everglades Settlement.” St. Thomas Law Review 11 (Fall 1998): 55–76. The Seminole Tribe entered into an agreement in 1987, known as the Seminole Indian Land Claims Settlement Act, to settle over the government water projects that flooded the lands of the East Big Cypress Reservation. Such settlements posed problems and political alignments were necessary in this case to gain passage. This was a short-term solution as the Seminoles are now in a battle with the National Park Service over the location of a tribal housing project. 2703. Locklear, Arlinda. “The Buffalo Creek Treaty of 1838 and Its Legal Implications for Oneida Indian Land Claims.” In The Oneida Indian Journey: From New York to Wisconsin, 1784–1860, edited by Laurence M. Hauptman and L. Gordon McLester III, 85–89. Madison: University of Wisconsin Press, 1999. The Oneidas are claiming approximately 250,000 acres, asserting past occupancy and treaty rights. The state claims it acquired these lands legally. Non-tribal landowners base their opposition to the claims on the 1838 treaty, which exchanged tribal lands for lands in Kansas. Locklear argues that treaties are binding legal documents, but explains why this particular treaty does not legally limit the tribal claims. 2704. Locklear, Arlinda. “Morality and Justice 200 Years after the Fact.” New England Law Review 37, no. 3 (2002–2003): 593–601. What constitutes morality and justice in the process of settling claims? Instead of letting current landowners escape from tribal claims, they should seek a legislative solution that would enable them to gain a clear title to the land, while the tribe gains money damages for past wrongs. 2705. Locklear, Arlinda. “The Oneida Land Claims: A Legal Overview.” In Iroquois Land Claims, edited by Christopher Vecsey and William A. Starna, 141–53. Syracuse, NY: Syracuse University Press, 1988.

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These claims have a legal basis that passionate critics of tribal rights often ignore. This legal foundation consists of federal common law, the Nonintercourse Act, and the corpus of federal treaties. The Oneida claims are thus justified. 2706. Loftis, Lynn. “The Catawbas’ Final Battle: A Bittersweet Victory.” American Indian Law Review 19, no. 1 (1994): 183–215. Under the Clinton administration, the U.S. ended the tribe’s battle with South Carolina. For $50 million, they ceded their aboriginal claims. The reservation was expanded, a tribal government organized, funds placed in a trust account, and the tribe will determine members. 2707. Lope, Susan. “Indian Giver: The Illusion of Effective Legal Redress for Native American Land Claims.” Southwestern University Law Review 23, no. 2 (1994): 331–59. The federal judiciary was not capable of protecting tribal rights in the past, nor will it be in the future. Meanwhile, Congress has a history of abrogating treaty provisions with tribal nations. The 1871 act banning treaties with tribes should be repealed, and tribal nations should be recognized as full and independent sovereigns. The Lakota Nation’s land claims provide the focus for these ideas. 2708. Lucido, Robert O. “Aboriginal Title: Abenaki Indian Land Claim in Vermont.” Vermont Law Review 16 (Winter 2002): 611–38. The Abenaki initiated a land claim for the Swanton– Highgate region in Vermont and two court decisions followed. One ruled that they possessed aboriginal title and the other decided that they did not. Lucido argues that they have occupied this area continually since before the European arrival and the U.S. never extinguished the Abenaki land claim. 2709. Luebben, Thomas E. and Cathy Nelson. “The Indian Wars: Efforts to Resolve Western Shoshone Land and Treaty Issues and to Distribute the Indian Claims Commission Judgment Fund.” Natural Resources Journal 42 (Fall 2002): 801–33. International human rights organizations cited the U.S. for violating Western Shoshone rights. The 1863 Treaty of Ruby Valley neither ceded lands to the U.S. nor extinguished aboriginal title. A 1979 settlement offer failed because it did not include a permanent land base for the tribe. 2710. Lurie, Nancy Oestreich. “Communications: A Reply To ‘The Land Claims Cases: Anthropologists in Conflict.’” Ethnohistory 3 (Summer 1956): 256–79. A critique of the Robert Manners’ essay on anthropologists, which refutes his approach.

2711. Lurie, Nancy Oestreich. “Epilogue.” In Irredeemable America: The Indians’ Estate and Land Claims, edited by Imre Sutton, 363–82. Albuquerque: University of New Mexico Press, 1985. As an active participant in tribal claims, the author discusses the weakness of the ICC, including the initial absence of an investigative division, slow case settlement, and narrow construction of the 1946 ICC legislation. 2712. Lurie, Nancy O. “The Indian Claims Commission.” Annals of the American Academy of Political and Social Science 436 (1978): 97–110. Discusses the extension of the act beyond its initial ten years. The process has not satisfied tribes as awards have been insufficient and required congressional approval for implementation. 2713. Lurie, Nancy Oestreich. “The Indian Claims Commission Act.” Annals of the American Academy of Political and Social Science 311 (May 1957): 56–70. Explains reasons why the ICC Act was passed and extended, including recognition of the importance of quickly solving Native claims. Also discusses types of claims and comments on expert testimony by anthropologists. The claims process has slowly moved forward, but it cannot be expected to serve as a “cureall” for past injustices. 2714. Lyons, David. “The New Indian Claims and Original Rights to Lands.” Social Theory and Practice 4 (Fall 1977): 249–72. Tribal members have claims today to the nation’s resources and the right to fair compensation for past wrongs. On the other hand, “it is highly doubtful that they have special claims based upon their distant ancestors’ original occupation of the land.” Current land claims should be viewed as correcting current injustices, not past wrongs. Introduction to a special issue stressing the importance of an interdisciplinary approach to just resolution of Indian claims. 2715. McGinty, G. W. “Valuating the Caddo Land Cession of 1835.” Louisiana Studies 2 (Summer 1963): 59–73. Following the ICC rules, the Caddo brought suit against the U.S. and, in 1954, the ICC divided the claim into two parts: one to determine the land the tribe occupied prior to July 1, 1835, and the second to determine the value of those lands. One method to determine market value for the Caddo lands used the 1835 treaty. Another arrived at a value using the value of cotton the lands produced. Using market tools, the Caddo lands were worth on average $3.48 per acre, but they only received 152⁄3 cents per acre.

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2716. McNeil, Kent and Jill E. Martin. “History, Law, and Indian Claims: An Introduction.” Journal of the West 39 (Summer 2000): 8–9. Introduction to a special issue stressing the importance of an interdisciplinary approach to just resolution of Indian claims. 2717. McSloy, Stephen Paul. “Revisiting the Courts of the Conqueror: American Indian Claims against the United States.” Federal Bar News & Journal 41 (September 1994): 552–78. Federal circuit courts and Court of Federal Claims hear only a few cases involving breach of trust, but these cases involve large monetary sums. Despite claims of inherent sovereignty, tribes find themselves in the enemy’s courts seeking damages, making these cases and courts international in nature. 2718. Manners, Robert A. “Introduction to the Ethnohistorical Reports on the Land Claims Cases.” In American Indian Ethnohistory: Indians of the Southwest, edited by David Agee Horr, 17–19. New York: Garland Publishing, 1974. Introductory comments to the Garland American Indian Ethnohistory series supplementing Ralph A. Barney’s comments. In addition to the ICC’s legal effects, the process it initiated has led to the production of a large amount of ethnohistorical materials and helped demonstrate the importance of pan-Indian cooperation. 2719. Manners, Robert A. “The Land Claims Cases: Anthropologists in Conflict.” Ethnohistory 3 (Winter 1956): 72–81. Out of the ICC work, bitterness grew between anthropologists working for the tribes and those working for the Department of Justice. Tribal claims should be addressed quickly. 2720. Manners, Robert A. “Tribe and Tribal Boundaries: The Walapai.” Ethnohistory 4 (Winter 1957): 1–26. The ICC has declared the importance of determining who is a tribe, as well as deciding proper tribal boundaries and territories. 2721. Marozas, Bryan A. “The Role of Geographic Information Systems in American Indian Land and Water Rights Litigation.” American Indian Culture and Research Journal 15, no. 3 (1991): 77–162. Commentary encouraging tribes, researchers, and attorneys to use the geographic information systems (GIS) technology to help resolve tribal land and water rights disputes. It can be used successfully in both litigation and decision-making processes. 2722. Martin, Jill E. “Returning the Black Hills.” Journal of the West 39 (Summer 2000): 31–37. An overview of the events leading up to the loss of the Black Hills and Sioux efforts to regain that land

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through claims cases. Precedents from other disputes involving Native American sovereignty support the Sioux claim, including the return of Blue Lake to the Taos Indians, the repatriation of sacred items, and Seminole Nation v. United States. 2723. Martin, John F. “From Judgment to Land Restoration: The Havasupai Land Claims Case.” In Irredeemable America: The Indians’ Estate and Land Claims, edited by Imre Sutton, 271–300. Albuquerque: University of New Mexico Press, 1985. The Havasupai economy shifted from agriculture to tourism, making it necessary for them to control more lands to pasture horses for tourism. Federal agencies opposed any land restoration to the tribe, but in 1969, an ICC claim was awarded, and in 1985, Congress authorized 185,000 acres, as well as nearly 1,000,000 acres of lands for use in the Grand Canyon National Park. 2724. Max, Theodore C. “Conundrums along the Mohawk: Preconstitutional Land Claims of the Oneida Indian Nation.” New York University Review of Law & Social Change 11, no. 3 (1982–1983): 473–519. The Oneidas of New York sued the state for lands ceded improperly in the Fort Stanwix Treaty of 1784. In working through these early eastern land claims, it is important that the tribes be identified as sovereigns. Max supports the tribal claims in Oneida Indian Nation v. New York. 2725. Meyer, Randy L. “The Supreme Court’s Analysis in Idaho v. Coeur d’Alene Tribe of Idaho: Is the Young Exception to the Eleventh Amendment Inapplicable to Indian Tribe Claims?” University of Toledo Law Review 30 (Fall 1998): 131–58. This case makes it nearly impossible for a tribe to reclaim submerged lands inside a reservation through federal court because of state sovereign immunity. The case failed at limiting the Young exception because it destroyed the exception. It had the opportunity to maintain federalism between sovereigns, but tipped the scales in favor of the states in this suit to quiet title, because Idaho was the real defendant. 2726. Miller, David B. “Historian’s View of S. 705—The Sioux Nation Black Hills Bill.” Wicazo Sa Review 4 (Spring 1988): 55–59. The bill, if passed, would create more conflict, frustration, and anger and would escalate racism. 2727. Mohawk, John C. “The Iroquois Land Claims: A Legacy of Fraud, Politics, and Dispossession.” In Enduring Legacies, Native American Treaties and Contemporary Controversies, by Bruce E. Johansen, 81–93. Westport, CT: Praeger, 2004.

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It is yet to be seen if the current claims will partially make up for the lands and resources that New York and the U.S. illegally took. Past Haudenosaunee efforts, such as those of the Cayuga and Oneida, to seek redress have been barred “mostly through tactics involving legal maneuvering.” 2728. Mohawk, John C. “The Iroquois Land Claims: A Promise of Fairness.” Native Americas 17 (Spring 2000): 20–23. From the Peace of Paris 1783 until the present, the Iroquois have pressed their land claims against the state of New York. They faced one rejection after another until the 1974 case Oneida Nation v. County of Oneida. This case and the subsequent Supreme Court decision in 1985 opened the door for past redress in the state of New York. 2729. Moses, Marsha. “Administrative Law—The Indian Claims Commission’s Jurisdiction to Hear Claims Based on Injuries to Tribal Structure.” Wayne Law Review 20 (July 1974): 1097–1108. Chiricahua prisoners of war were imprisoned from 1886 to 1913 at several military posts. They presented a claim before the ICC seeking damages to their tribal power. The ICC and the U.S. Court of Claims dismissed the claim citing that “Congress did not intend to provide a vehicle for recovery for injuries to tribal power” due to individual cumulative injuries. Moses argues that the act creating the ICC provided for the redress of social issues, and the court did not examine associated economic damages. 2730. Moul, Francis. “William McKinley Holt and the Indian Claims Commission.” Great Plains Quarterly 16 (Summer 1996): 169–82. Holt helped set the tone for the commission, viewing his work in narrow judicial terms and denying numerous claims on narrow grounds. In his decision on a Pawnee claims case, he disallowed six out of eight claims. 2731. Nebel, Reynold, Jr. “Resolution of Eastern Indian Land Claims: A Proposal for Negotiated Settlements.” American University Law Review 27 (Spring 1978): 695–731. As the eastern tribes obtain one favorable court decision after another, the best way to settle these emotional claims is to begin negotiated settlements. 2732. Nelson, Katherine F. “Resolving Native American Land Claims and the Eleventh Amendment: Changing the Balance of Power.” Villanova Law Review 39, no. 3 (1994): 525–626. Congress passed a jurisdictional act in 1966 permitting tribes with constitutional or statute claims to

file suit in federal court. One case was County of Oneida v. Oneida Indian Nation (Oneida II). The court did not address the issue of Eleventh Amendment rights of states in this case, making negotiated settlements more difficult in the future. 2733. New Holy, Alexandra. “The Heart of Everything That Is: Paha Sapa, Treaties, and Lakota Identity.” Oklahoma City University Law Review 23 (Spring and Summer 1998): 317–52. After years of litigation, the Lakota claim for the Black Hills has intersected with the American legal system, often with unfavorable results for a people who have tried several different avenues. 2734. Newton, Nell Jessup. “Compensation, Reparations, and Restitution: Indian Property Claims in the United States. “Georgia Law Review 28 (Winter 1994): 453–531. The current property claims Eastern European countries have filed are compared with tribal property claims against the U.S. Potential non-monetary settlements are discussed. 2735. Newton, Nell Jessup. “Enforcing the Federal–Indian Trust after Mitchell.” Catholic University Law Review 31 (Summer 1982): 635–83. All three branches of federal government agree that tribes and tribal individuals have a special relationship with the U.S. and this relationship extends to claims. Before Mitchell, courts employed a loose analysis of trust breach claims, but Mitchell mandates that claims must meet specific requirements that the law intended regarding monetary damages. Subsequent courts should limit Mitchell’s effects. 2736. Newton, Nell Jessup. “Indian Claims in the Courts of the Conqueror.” American University Law Review 41 (Spring 1992): 753–854. Opening federal courts to tribal nations in 1965 greatly influenced modern Indian law. As OEO funded reservation legal services, a new generation of attorneys began to practice Indian law. As the number of Indian cases raised universal legal issues, many scholars began to investigate Indian law. In response Congress passed the Federal Courts Improvement Act in 1982 to bring conformity to the courts. 2737. Newton, Nell Jessup. “The Judicial Role in Fifth Amendment Takings of Indian Land: An Analysis of the Sioux Nation Rule.” Oregon Law Review 61, no. 2 (1982): 245–65. The Supreme Court faced the difficult legal issue of justifying Congress’s plenary power and its trustee responsibilities when employing a Fifth Amendment taking of Lakota land. The high court developed the

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good faith test where the U.S. had to demonstrate that it attempted to provide the ward with proper compensation, which it did not do. 2738. Nielsen, Richard Allen. “American Indian Land Claims: Land Versus Money as a Remedy.” University of Florida Law Review 25 (Winter 1973): 308–26. The ICC has advantages over other forums, but relies on monetary compensation. The return of Blue Lake to Taos represents another form of compensation. Public lands being returned are easier to transfer than private lands and, since this is the proper compensation, it should not be loosely done. 2739. Nordhaus, Robert J. Tipi Rings: A Chronicle of the Jicarilla Apache Land Claim. Albuquerque, NM: BowArrow Press, 1995. An attorney for the tribe recounts a claim filed before the ICC in 1958. After a decade, the tribe was awarded a total land claim settlement of over nine million dollars. 2740. O’Callaghan, Jerry A. “Extinguishing Indian Tribes on the Oregon Coast.” Oregon Historical Quarterly 52 (September 1951): 139–44. The case of Alcea Band of Tillamooks et al. v. the United States resulted in a three million dollar claim award. The case stemmed from an 1855 treaty that was never ratified, but nevertheless resulted in four bands being confined to a reservation without due compensation. This marked the first time that an Indian band won damages based on an unratified treaty, and thus will serve as an important precedent. 2741. O’Callaghan, Jerry A. “Klamath Indians and the Oregon Wagon Road Grant, 1864–1938.” Oregon Historical Quarterly 53 (March 1952): 23–28. Short account of a land claims case resulting in a five million dollar award in 1938 to the Klamath tribe. 2742. O’Connell, John D. “Constructive Conquest in the Courts: A Legal History of the Western Shoshone Lands Struggle—1861 to 1991.” Natural Resources Journal 42 (Fall 2002): 765–99. Mary and Carrie Dann fought to keep their aboriginal Great Basin homeland. The U.S. failed to prove that it had a superior land title claim to that of the Western Shoshone sisters. 2743. Orlando, Caroline L. “Aboriginal Title Claims in the Indian Claims Commission: United States v. Dann and Its Due Process Implications.” Boston College Environmental Affairs Law Review 13 (Winter 1986): 241–80.

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In some ICC cases, the land in question may have been in aboriginal status, but the claimants created an extinguishment date as they sought monetary damages. In doing so they ceded their aboriginal land title. One exception is the Dann case, where the claimants denied ever ceding their aboriginal lands in Nevada to the U.S., nor did they accept a monetary settlement from the ICC. 2744. Pacheco, Thomas H. “Indian Bedlands Claims: A Need to Clear the Waters.” Harvard Environmental Law Review 15, no. 1 (1991): 1–51. Tribes claim they need access to submerged lands and states often oppose. A new formula is needed to help determine whether the U.S. has granted bedlands to tribes. When two tests are met, one demonstrating that a tribe had controlled the bedland and two that it has been dependent upon it, the court should grant it to the tribe. 2745. Parker, Linda S. Native American Estate: The Struggle over Indian and Hawaiian Lands. Honolulu: University of Hawaii Press, 1989. Complex study of tribal land estates from the mainland to Hawaii. The issues are difficult to understand and tribal people do not have a single response to settle their estate claims. 2746. Pierce, Margaret Hunter. “The Work of the Indian Claims Commission.” American Bar Association Journal 63 (February 1977): 227–32. The commission is essentially a “Court of Indian Claims” or a tribunal that awards tribes monetary damages for past wrongs. More than 600 claims were filed with the ICC. The commission’s work has uncovered part of the tribes’ history. 2747. Pommersheim, Frank. “The Black Hills Case: On the Cusp of History.” Wicazo Sa Review 4 (Spring 1988): 18–23. Overview of the Black Hills litigation stressing that Lakotas never violated the treaty. There is an opportunity to correct a wrong because the U.S. is the largest landholder in the region and the Lakota agree that the region is the focal point of their worldview. 2748. Pommersheim, Frank. “Making All the Difference: Native American Testimony and the Black Hills.” North Dakota Law Review 69, no. 2 (1993): 337–59. A review essay of books related to tribal legal rhetoric. Lakota’s are not untutored clients, as Edward Lazarus has argued related to tribal land claims. 2749. Powless, Irving, Jr. “The Sovereignty and Land Rights of the Houdenosaunee.” In Iroquois Land Claims, edited by Christopher Vecsey and William A. Starna, 155–61. Syracuse, NY: Syracuse University Press, 1988.

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An Iroquois Grand Council Chief comments on land claims. Houdenosaunee rights predate contact with Europeans and these rights endure. 2750. Price, Lynn. “Proving Aboriginal Title via Expert Testimony: Lessons from the Indian Claims Commission.” American Indian Journal of the Institute for the Development of Indian Law 7 (February 1981): 16–24. Recognized Indian title is proved through a treaty or agreement between the U.S. and a tribal nation. Aboriginal title must be located through historical research and archaeological evidence, forcing experts into the courtroom. 2751. Render, Jesse Andrew. “Spirit Lake Tribe v. North Dakota: The Eighth Circuit Reminds Courts and Adverse Claimants of the Specter of a Jurisdictional Statute of Limitations Lurking within the Quiet Title Act.” Creighton Law Review 36 (February 2003): 267–314. Congress passed the Quiet Title Act in 1972. It had a twelve-year limitation. The Spirit Lake tribal community brought suit to recover the lake bed of Devils Lake in North Dakota. The lower court granted a summary judgment, but the U.S. Court of Appeals ruled that the law’s jurisdictional limitations did not give the lower court authority to hear the case. This law is also a barrier to cause of action. 2752. Rosenthal, Harvey D. “Indian Claims and the American Conscience: A Brief History of the Indian Claims Commission.” In Irredeemable America: The Indians’ Estate and Land Claims, edited by Imre Sutton, 35–70. Albuquerque: University of New Mexico Press, 1985. Tribal land claims were a barrier to productive tribal–federal relations in the first half of the twentieth century. The Court of Claims was not favorable to tribal claims so Congress turned to the ICC seeking resolution. 2753. Rosenthal, Harvey D. Their Day in Court: A History of the Indian Claims Commission. New York: Garland Publishing, 1990. The Commission was intended to resolve the complex claims, but the resulting process proved complex, contentious, and drawn-out. It would have been more successful had Indians been directly involved in its formulation and operation, and it suffered from being “improperly constituted” and narrowly construed jurisdiction. On the positive side, the monetary awards boosted tribal economies and it led to tribes being more legally savvy, and spawned useful ethno-historical research.

2754. Scherer, Mark R. Imperfect Victories: The Legal Tenacity of the Omaha Tribe, 1945–1995. Lincoln: University of Nebraska Press, 1999. The Omaha Tribe of Nebraska engaged in a twodecades-long struggle, beginning in 1966, to regain lands in Iowa that were originally part of their reservation until the Missouri River shifted course. The struggle led to tensions between Indians and nonIndians and between the tribe and its government attorneys that still endure. This is an important example of tribal non-violent judicial activism and of the conflicts and contradictions inherent in the federal–tribal trust relationship. 2755. Selander, Kenneth J. “Section 2 of the Indian Claims Commission Act.” George Washington Law Review 15 (April 1947): 388–425 According to a March 1863 act of Congress, all tribal claims against the U.S. were barred from the U.S. Court of Claims. Since that punitive act, only tribes who obtained a special congressional exception were able to bring claims against the U.S. until the 1946 passage of the ICC Act. Section 2 lists five categories of claims that tribes may file and provides the government with defenses against tribal claims, including counter-claims and set-offsets. 2756. Shanahan, Donald G., Jr. “Compensation for the Loss of the Aboriginal Lands of the California Indians.” Southern California Quarterly 57 (Fall 1975): 297–320. In 1954, the ICC delivered a ruling that 57 million acres were held by the state’s Native population as original title. The U.S. appealed the decision to the Court of Claims six years later, and in 1963, a settlement was reached for $29.1 million. 2757. Shattuck, George C. The Oneida Land Claims: A Legal History. Syracuse, NY: Syracuse University Press, 1991. The author was one of the leading attorneys representing the Oneida Indians of New York in their land claims against New York. The pre-1790 claims are treaty violation suits where the state violated federal treaties, and the post-1790 claims are violations of the 1790 Trade and Intercourse Act. 2758. Shipek, Florence C. “Mission Indians and Indians of California Land Claims.” American Indian Quarterly 13 (Fall 1989): 409–20. Offers background on major claims cases in California, with particular focus on the Mission Indian Claims Case, Docket 80. Non-Indians determined the wording of these cases, and did so erroneously, distorting the truth to the detriment of Indian people.

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2759. Shreves, Catherine Elliott. “United States v. Sioux Nation: The Demise of Lone Wolf v. Hitchcock in Fifth Amendment Tribal Land Cases.” South Dakota Law Review 26 (Summer 1981): 582–94. For decades, Lone Wolf was the backbone for court refusals to award monetary damages for past claims. In Sioux Nation, Congress enacted legislation asking the court to review without res judicata and the Court of Claims. The Supreme Court eliminated the Lone Wolf test and ruled that the U.S. did violate the Sioux Nation’s Fifth Amendment rights. 2760. Singer, Joseph William. Entitlement: The Paradox of Property. New Haven, CT: Yale University Press, 2000. Property study including a chapter on reparations and the illegal taking of tribal lands for less than fair value, which were often resolved in the ICC. Discussion includes a favorable ruling that the Vermont Abenaki retained their lands because the U.S. had not extinguished their title. 2761. Singer, Joseph William. “Well Settled? The Increasing Weight of History in American Indian Land Claims.” Georgia Law Review 28 (Winter 1994): 481–532. In 1992, the Vermont Supreme Court reversed a lower court’s dismissal of thirty-six Missisquoi Abenaki tribal members who were fishing on tribal lands. The state high court argued that the “increasing weight of history” can terminate tribal land title the longer claims are ignored. Tribal lands can also be taken without federal compensation. This decision fails to follow the rules of law, history, and property. 2762. Skibine, Alexander Tallchief. “The Latest Word from the Supreme Court.” American Indian Journal of the Institute for the Development of Indian Law 6 (August 1980): 23–29. In the Sioux Nation’s Black Hills claim, the question dealt with the federal government’s conduct in taking the Black Hills. The court had to decide if it was conquering or acting as trustee. If the former was true, the Lakota are entitled to interest damages under the Fifth Amendment and, in the latter situation, they are entitled to only the land’s value at the time of taking. The court ruled that the U.S. was acting as conqueror, but then made a political ruling in a recent tax case ranking everyone’s interests, making it impossible for tribes to obtain a favorable decision. 2763. [Skibine], Alexander Tallchief. “Money v. Sovereignty: An Analysis of the Maine Settlement.” American Indian Journal of the Institute for the Development of Indian Law 6, no. 5 (May 1980): 19–22.

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The Maine Indian claims do not push into new ground, but continue the patterns of extinguishing tribal title with money settlements. Tribal sovereignty thus suffers. 2764. Skogen, Larry C. Indian Depredation Claims, 1796– 1920. Norman: University of Oklahoma Press, 1996. Congress passed a claims system in 1796 that Skogen describes as the “depredation claims system,” where either party had the opportunity to apply for compensation for damages. Native Americans did not use it, but whites exploited the system for their own gains. 2765. Smith, E. B. Indian Tribal Claims Decided in the Court of Claims of the United States Briefed and Compiled to June 30, 1947. Two volumes. Washington, DC: University Publications of America, Inc., 1976. Summary of 225 major cases compiled in 1947. Smith served as the Chief of the Indian Tribal Claims section of the U.S. GAO. For each case is listed the date, nature of the claim, the judgment details, and a narrative summary. 2766. Stevens, Phillip J. “Compensation for the Plundering of $18 Billion of Sioux Gold, Silver and Other Natural Resources from the Black Hills Is Unjust and Unacceptable.” Wicazo Sa Review 4 (Spring 1988): 49–50. Contrary to the ICC language and the usual practice of Fifth Amendment claims, where tribes are awarded compensation at the time of taking and then interest accumulates, the Bradley bill would pay only $450,000. The U.S. should pay compound interest for taking these assets. 2767. Stewart, Omer C. “Anthropology and the Indian Claims.” Delphian Quarterly 42 (Summer 1959): 8–12, 21. P.L. 726 opened the door for California tribes to file suit before the ICC. Stewart is optimistic about the eventual settlement’s positive impact on tribes. 2768. Stewart, Omer C. “Claims of the Indians of California.” Delphian Quarterly 42 (Spring 1959): 36–40. California, Nevada, Utah and some Idaho tribes received the least compensation for their lands at the time of sale. 2769. Stewart, Omer C. “Federal vs. Local Treatment of Indians.” Delphian Quarterly 42 (1959): 27–35. The ICC was created because of a history of unethical local dealings with tribal nations. 2770. Stewart, Omer C. “The First American and His Land: Background for American Indian Claims Cases.” Delphian Quarterly 41 (Autumn 1958): 23–28, 38.

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Popular publications described the ICC as irrational, expensive and unjust. Colonial and American precedents provided the legal foundation for the twentieth-century tribal land claims. 2771. Stewart, Omer C. “Kroeber and the Indian Claims Commission Cases.” Kroeber Anthropological Society Papers 25 (Fall 1961): 181–90. The ICC case Indians of California v. The United States of America was a turning point in American anthropology. Kroeber served as an expert witness for the plaintiffs and other anthropologists served as expert witnesses for the U.S. These expert witnesses gave a new meaning to the phrase “applied anthropology.” 2772. Stewart, Omer C. “The Shoshone Claims Cases.” In Irredeemable America: The Indians’ Estate and Land Claims, edited by Imre Sutton, 187–206. Albuquerque: University of New Mexico Press, 1985. Multiple Shoshone land claims stemmed from the different Shoshone bands, beginning with the Comanche claims to northern Texas and ending with the Shoshone claims of the intermountain west. Stewart identified every leader and sub-leader in every document that he and his assistants could find. The litigation continued after the ICC was terminated due to the complexity of the many cases. 2773. Struve, Catherine T. “Turf Struggles: Land, Sovereignty, and Sovereign Immunity.” New England Law Review 37, no. 3 (2002–2003): 571–83. Land is central to the tribes’ struggles to maintain and expand their sovereignty, and as tribes seek to redress past wrongs and pursue land claims, states invoke sovereign immunity. 2774. “The Supreme Court—Leading Cases.” Harvard Law Review 99 (November 1985): 254–64. In 1985, the Supreme Court decided in County of Oneida v. Oneida Indian Nation that common law permitted the tribe to seek compensation for lands conveyed nearly two centuries earlier in a 1795 trespass. Holding that the tribe had a common cause, they invited Congress “to extinguish the Oneida land claims,” a very insensitive act considering that the courts are charged to safeguard tribal interests. 2775. Sutton, Imre. “Concluding Commentary.” American Indian Culture and Research Journal 24, no. 1 (2000): 189–98. Land claims continuing after the ICC encounter difficulties not just in the courts, but with all three branches of government, making this new era of claims even more difficult. 2776. Sutton, Imre. “Configurations of Land Claims: Toward a Model.” In Irredeemable America: The Indians’ Estate and Land Claims, edited by Imre Sutton,

111–37. Albuquerque: University of New Mexico Press, 1985. Aside from historic negotiations, tribal claims share little in common. Differing forms of tenure have influenced the past and present tribal land losses. 2777. Sutton, Imre. “Incident or Event? Land Restoration in the Claims Process.” In Irredeemable America: The Indians’ Estate and Land Claims, edited by Imre Sutton, 211–32. Albuquerque: University of New Mexico Press, 1985. Monetary compensation is the federal government’s preferred way to settle tribal land claims. Still there have been incidents of returning lands that began with the New Deal. Despite this favorable legislation, federal agencies have opposed land transfers such as the Forest Service opposition to restoring Blue Lake to Taos Pueblo. The sacred sites issue presents a special need for understanding tribal land restoration. 2778. Sutton, Imre. “Not All Aboriginal Territory Is Truly Irredeemable.” American Indian Culture and Research Journal 24, no. 1 (2000): 129–62. The ICC’s demise did not end tribal land claims against the U.S. Some claims that were filed during the life of the ICC remain unresolved, such as the Black Hills claim. Some claims have been resolved by Congress while other claims have reached stalemates. 2779. Tahsuda, John. “The Oneida Land Claim: Yesterday and Today.” Buffalo Law Review 46 (Fall 1998): 1001–9. The historic Oneida land claims involve the state of New York and began with Boylan in 1906, resulting in federal intervention on their behalf. Since then, they have initiated their own lawsuits and the courts have upheld their claim to over 300,000 acres, but a legislative solution appears imminent to prevent displacing current landowners. 2780. Thomas, Mark W. “Constitutional Law—Equal Protection—Supreme Court Upholds Validity of Preferential Treatment of Indians in Land Disputes—Wilson v. Omaha Indian Tribe.” Creighton Law Review 13 (1979): 619–32. The 1854 Omaha treaty determined the reservation boundaries with the Missouri River as the eastern border. The river moved its course west and Iowans settled former tribal lands east of the river. In court, the Omaha claimed avulsion and Iowa claimed it was accretionary evasion destroying tribal title. The burden of proof was on the Omaha and the evidence was not strong enough to quite title.

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2781. Trink, Reinhard. “The Black Hills Are Not for Sale–Discrimination of Indigenous Peoples in the U.S. Law System.” Law & Anthropology 3 (1988): 175–91. Discusses the return of the Black Hills to the Lakota people. Lakotas have two options, fight or have a bill introduced to return the lands. They have opted for the latter. 2782. Vance, John T. “The Congressional Mandate and the Indian Claims Commission.” North Dakota Law Review 45 (Spring 1969): 325–36. President Truman signed the Indian Claims Commission Act hoping for a new era in tribal relations. So why did the act fail to end worsening poverty and unemployment in Indian Country? It is a commission and not a court, so to fix the problems Vance recommends a five-point plan. 2783. VanDevelder, Paul. Coyote Warrior: One Man, Three Tribes, and the Trial That Forged a Nation. New York: Little, Brown, and Company, 2004. The Missouri River remains one of the most controversial rivers, not because of its length, but due to the dams that were constructed on tribal lands and flooded tribal resources. The Mandan, Arikara, and Hidatsa were hit hard when Garrison Dam in North Dakota flooded their reservation. To get water after the dam’s construction, the tribes hired an engineering firm to pump it, but their work was faulty, forcing the tribe to sue and they hired Raymond Cross in the 1970s to take the case Wold Engineering. This case involved P.L. 280, but Cross convinced the North Dakota Supreme Court that the tribes were sovereign nations. This opened the door for future claims settlements with the U.S. over the Pick Sloan project. 2784. Vecsey, Christopher and William A. Starna, eds. Iroquois Land Claims. Syracuse, NY: Syracuse University Press, 1988. Essays by various authors attempting to present a variety of viewpoints. Starna’s epilogue summarizes the current status of the claims and discusses the negotiation process. He stresses the need for federal and state officials to learn more about tribal people and counsels tribal participants to “proceed with care and forbearance.” 2785. Vollman, Tim. “A Survey of Eastern Land Claims: 1970–1979.” Maine Law Review 31, no. 1 (1979): 5–16. As early as 1905, the Catawba pressed for a land settlement in South Carolina. The recent case Oneida Indian Nation v. County of Oneida is concerned with violations of the Trade and Intercourse Act after treaties and Joint Tribal Council of the Passamaquoddy Tribe v. Morton is based on aboriginal

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title. The Catawba claim is based on a treaty between the tribe and England that the state ignored. The federal government encouraged negotiations to settle these claims. 2786. Wallace, Harry B. “Indian Sovereignty and Eastern Indian Land Claims.” New York Law School Law Review 27, no. 3 (1982): 921–50. Tribal sovereignty and nation status are primary concerns of laws affecting tribal people, not race or ethnicity. The U.S. is forced to apply in some cases principles that stem from international law, including aboriginal title and jurisdiction. This is the case in the eastern tribes’ land claims. Despite the settlement of some claims, there are more discussion on the horizon concerning the Trade and Intercourse Acts and other legislation that will influence a settlement. 2787. Wallace, Pamela S. “Indian Claims Commission: Political Complexity and Contrasting Concepts of Identity.” Ethnohistory 49 (Fall 2002): 743–67. In 1951, the Yuchi in Oklahoma filed a claim with the ICC, thereby asserting their separate identity from the Creeks. The U.S. government and Creeks allied to suppress the claim. The example serves to reveal the great complexity within the ICC process, which was at times marked by Indian vs. Indian efforts, as well as occasional Indian–federal alliances. 2788. Washburn, Wilcomb E. “Land Claims in the Mainstream of Indian/White Land History.” In Irredeemable America: The Indians’Estate and Land Claims, edited by Imre Sutton, 21–33. Albuquerque: University of New Mexico Press, 1985. Land claims are one component of a tribe’s claim to sovereignty and a means to correct past injustices by giving tribal nations their day in court. The ICC was authorized to only provide monetary settlements, never return land. So the conflict continued as long drawn-out litigation extended past the life of the ICC. 2789. White, John R. “Barmecide Revisited: The Gratuitous Offset in Indian Claims Cases.” Ethnohistory 25 (Spring 1978): 179–92. Forcing offsets in tribal claims against the U.S. negates the effects of justice in the claims process. 2790. Wilcox, Ronald L. “Lands and Natural Resources.” Denver Law Journal 60, no. 2 (1983): 333–66. Overview of Tenth Circuit Court of Appeals cases pertaining to lands and resources, including suits involving tribes. 2791. Wilkinson, Glen A. “Indian Claims before the Court of Claims.” Georgetown Law Journal 55 (December 1966): 511–28. The 1946 Indian Claims Commission Act authorized the U.S. Court of Claims to hear Indian claims

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against the U.S. The court has “appellate jurisdiction over cases decided by the Indian Claims Commission.” The essay describes the claims process and highlights some weakness, especially in the area of just compensation for wrongs and interest payments. 2792. Williams, Jason. “Beyond Mere Ownership: How the Confederated Salish and Kootenai Tribes Used Regulatory Control over Natural Resources to Establish a Viable Tribal Homeland.” Public Land & Resources Law Review 24 (Winter 2004): 121–37. In the 1970s, the Confederated Salish and Kootenai Tribes began to express the need to revitalize their homeland. As a result, they initiated litigation to gain control of the southern half of Flathead Lake, then employed litigation to exercise tribal regulatory authority over these tribal properties. As the political winds have changed, the tribe has moved toward cooperation. 2793. Wilson, Raymond. “Forty Years to Judgment: The Santee Sioux Claims Case.” Minnesota History 47 (Fall 1981): 284–91. Account of a claims case, lasting from 1884 to 1924, to restore annuities for the Lower Santee. Questions of who would represent the tribe in the suit led to controversy and exacerbated tribal factionalism. Charles Eastman’s role and his efforts to obtain attorney fees proved controversial. Benefits received may not have outweighed the negative consequences of factionalism. 2794. Winder, Samuel. “South Carolina v. Catawba: A State’s Statute of Limitations Found Applicable to an

Eastern Tribe’s Land Claim.” Natural Resources Journal 27 (Fall 1987): 913–30. In South Carolina v. Catawba Indian Tribe, the Supreme Court decided that even though the tribe agreed to termination provisions, providing that this agreement would not harm their claims against the state, the high court ruled that the state’s statute of limitations applied. The high court applied state law to a tribal claim. 2795. Wishart, David J. “The Pawnee Claims Case, 1947–64.” In Irredeemable America: The Indians’ Estate and Land Claims, edited by Imre Sutton, 157–86. Albuquerque: University of New Mexico Press, 1985. This was a multi-step tribal land case that was filed in 1947. The ICC dismissed most of the case, claiming that the Pawnee did not sufficiently demonstrate use of the territory. The Court of Claims reversed the ICC, claiming that evidence was available to prove Pawnee land claims and the ICC made the necessary adjustments to fit the Pawnee land into neighboring tribal land claims. Their award was closer to the Pawnee claim. 2796. Young, Rowland. “American Indians . . . Treaty Abrogation.” American Bar Association Journal 66 (October 1980): 1274–80. The Supreme Court had to determine if the Black Hills taking was a congressional decision to change a tribal investment or if it was a taking without compensation. The court decided that giving the Sioux rations was not fair compensation for the taking.

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2801. Barsh, Russel Lawrence. “Banishing the Spirits: Indian Agents and the Pacific Northwest Winter Dance.” Journal of the West 39 (Summer 2000): 54–65. Comments on the Cooper case in Seattle in 1984, in which members of the Coast Salish community were prosecuted for kidnapping and biting a young girl as part of her initiation into the syewen religion. The subsequent conviction was a dangerous example of Western secular conceptions of proper conduct intruding on Native religious freedom.

2797. “American Indian Religious Freedom.” American Indian Law Review 6, no. 1 (1978): 254–56. A copy of the Joint Resolution on American Indian Religious Freedom. 2798. Andreason, Cynthia Thorley. “Indian Worship v. Government Development: A New Breed of Religion Cases.” Utah Law Review, no. 2 (1984): 313–36. The traditional court defined religious tests that are not applicable to tribal religious practices. Following the passage of AIRFA, these traditional tests will not be appropriate for future tribal free exercise claims as demonstrated by Sequoyah v. Tennessee Valley Authority, Badoni v. Higginson, People v. Woody, and Hopi Indian Tribe v. Block.

2802. Barsh, Russel Lawrence. “The Illusion of Religious Freedom for Indigenous Americans.” Oregon Law Review 65, no. 2 (1986): 363–412. Congress passed AIRFA to protect tribal religions but American courts continue to destroy tribal religious practices by restricting the Free Exercise Clause.

2799. Anderson, Brett. “Recognizing Substance: Adoptees and Affiliates of Native American Tribes Claiming Free Exercise Rights.” Washington and Lee Race and Ethnic Ancestry Law Journal 7 (Spring 2001): 61–84. The federal government’s ability to decide who shall have permit to possess bald or golden eagles for participation in tribal rituals is an unwarranted intrusion into the tribal process of determining who is a member and who is not a member of the community without tribal consent.

2803. Bordeaux, Ken. “Renegades’ Desecrating of Indian Religion.” Indian Historian 12 (Winter 1979): 12, 28. Laments the disgraceful abuse of Lakota religion. People do not understand that there are two sides to the religion, the good and the evil. 2804. Boston, G. Robert. “Sacred Grounds: American Indians are citing the First Amendment’s Religious Liberty Provisions in Battles at the Supreme Court.” Church and State 41 (January 1988): 8–11. Brief account of Native religious freedom cases before the court.

2800. Banks, Britt. “Birds of a Feather: Cultural Conflict and the Eagle in American Society.” University of Colorado Law Review 59 (Summer 1988): 639–57. Congress’s efforts to protect eagles clashed with the cultural and spiritual needs of tribal America in the Eagle Protection Act. The Supreme Court, in United States v. Dion, magnified the cultural conflict deciding that the act abrogated tribal treaty rights to hunt eagles on reservation lands. Banks presents several potential solutions that may be used to find a common ground between the U.S. and tribal Americans on this issue.

2805. Brant, Joanne C. “Taking the Supreme Court at Its Word: The Implications for RFRA and Separation of Powers.” Montana Law Review 56 (Winter 1995): 5–37. After Smith, Congress passed the Religious Freedom Restoration Act to legislate free exercise. The law is unconstitutional because it denies the court the

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ability to define jurisdictional boundaries. The court erred in using the compelling interest test in Smith. 2806. Carpenter, Kristen A. “Considering Individual Religious Freedoms under Tribal Constitutional Law.” Kansas Journal of Law & Public Policy 14 (Spring 2005): 561–606. In early cases, the First and Fourteenth Amendments did not apply to tribes. ICRA, due to the adverse decision in Native American Church and Toledo v. Publo de Jemez that prohibited the burial of Protestant members in the community graveyard, incorporated a religious freedom component. As a result, there are a number of tribal religious freedom protections. 2807. Celichowski, John. “A Rough and Narrow Path: Preserving Native American Religious Liberty in the Smith Era.” American Indian Law Review 25, no. 1 (2000–2001): 1–35. Examines ways Smith, RFRA, City of Boerne v. Flores, the 1999 Religious Liberty Protection Act, O’Lone v. Estate of Shabazz and the 2000 Religious Land Use and Institutionalized Persons Act attempted to address application of the compelling interest/least restrictive means test in regards to the free exercise of religion. Celichowski is skeptical about the ability of legislation protecting free religious exercise for Native Americans to withstand constitutional challenge. 2808. Cline, Christopher P. “Pursuing Native American Rights in International Venues: A Jus Cogens Strategy after Lyng v. Northwest Indian Cemetery Protective Association.” Hastings Law Journal 42 (January 1991): 591–633. The U.S. has violated tribes’ freedom of religion under the Constitution and their human rights according to international law. Tribal complaints should be heard in the Inter-American Commission on Human Rights. 2809. Conkle, Daniel O. “The Religious Freedom Restoration Act: The Constitutional Significance of an Unconstitutional Act.” Montana Law Review 56 (Winter 1995): 39–93. Gives constitutional reasons why courts should overturn Smith. The RFRA is itself unconstitutional. 2810. Craven, Rex P. “The American Indian Religious Freedom Act—An Answer to the Indian’s Prayers.” South Dakota Law Review 29 (Winter 1983): 131–43. This legislation is a “white elephant” that lingered after the Carter administration left office. The act is

unable to protect tribal religious practices and eliminate government interference. 2811. Cunningham, Thomas J. “Considering Religion as a Factor in Foster Care in the Aftermath of Employment Division, Department of Human Resources v. Smith and the Religious Freedom Restoration Act.” University of Richmond Law Review 28 (March 1994): 53–112. Before Smith, states had to justify any burdens on free exercise, but after Smith, states can place a burden on an individual’s free exercise with a very neutral application of free exercise. In response, Congress passed RFRA, forcing the courts to return to the compelling interest standard of the Free Exercise Clause. 2812. Deloria, Vine Jr. “The Distinctive Status of Indian Rights.” In The Plains Indians of the Twentieth Century, edited by Peter Iverson, 237–48. Norman: University of Oklahoma Press, 1985. In decades following the 1978 passage of AIRFA, Indians have lost four of five significant court decisions related to their religious practices. Because tribes have been considered politically foreign, Constitutional protections have not traditionally extended to Native people. Upholding specific legislation such as AIRFA is necessary to guarantee religious freedom. 2813. Deloria, Vine Jr. God Is Red. New York: Grosset and Dunlap, 1973. Concentrates on Native American spirituality and contrasts Native and Christian beliefs. Also includes commentary on the taking of human remains and spiritual items by archaeologists and museums, the history of non-Indian repression of tribal religions, and Native responses. 2814. Deloria, Vine, Jr. “Secularism, Civil Religion, and the Religious Freedom of American Indians.” In Repatriation Reader: Who Owns American Indian Remains?, edited by Devon A. Mihesuah, 169–79. Lincoln: University of Nebraska Press, 2000. Since AIRFA’s passage, Native Americans have felt betrayed by both Congress and the Supreme Court, the latter being “decidedly anti-Indian.” Native religions are assaulted not just because they are tribal, but because “they are fundamentally religious and are perhaps the only consistent religious groups in American society over the long run.” All Americans who wish to protect their own faiths should support tribal efforts to protect theirs. 2815. Deloria, Vine, Jr. “Trouble in High Places: Erosion of American Indian Rights to Religious Freedom in the United States.” In The State of Native America:

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Genocide, Colonization, and Resistance, edited by M. Annette Jaimes, 267–90. Boston, MA: South End Press, 1992. Lyng and Smith have denied traditional Native religion’s U.S. judicial and constitutional protections. Deloria focuses on Lyng as a means to examine three key aspects of federal Indian law—the treaty relationship, the Trust Doctrine, and federal ownership of property on the public domain. Scholars and justices improperly combine these ideas to justify federal authority over Indians rather than viewing these ideas as mutually exclusive. 2816. “The Denial of Indian Civil and Religious Rights.” Indian Historian 8 (Summer 1975): 43–46. Reprint of Indian Commissioner Charles Burke’s April 26, 1921, Indian dance circular. 2817. Dussias, Allison M. “Ghost Dance and Holy Ghost: The Echoes of Nineteenth Century Christianization Policy in Twentieth-Century Native American Free Exercise Cases.” Stanford Law Review 49 (April 1997): 773–852. Studies federally sponsored missionary efforts to convert Native Americans in the nineteenth century by ignoring their free exercise of religion. In the twentieth century, the Establishment Clause has become a roadblock to tribal free exercise claims in the courts. 2818. Echo-Hawk, Walter R. “Native American Religious Liberty: Five Hundred Years after Columbus.” American Indian Culture and Research Journal 17, no. 3 (1993): 33–52. Surveys the history of suppression of Native religious freedom, beginning with Columbus, as background to an upcoming Congressional debate over the Native American Free Exercise of Religion Act of 1993, which Echo-Hawk supports. Lyng and Smith both denied Indians’ First Amendment rights.

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liefs “demeaning the importance of secular commitments.” 2821. Fisher, Louis. “Indian Religious Freedom: To Litigate or Legislate?” American Indian Law Review 26, no. 1 (2001–2002): 1–39. Recent federal and state actions upholding Indian religious freedoms have not come from courts. Influencing the legislative process, the executive office and related agencies have provided a more effective strategy for seeking protections. 2822. Fort, Timothy L. “The Free Exercise Rights of Native Americans and the Prospects for a Conservative Jurisprudence Protecting the Rights of Minorities.” New Mexico Law Review 23 (Winter 1993): 187–209. Describes the judicial arguments that courts have put forth to narrow the First Amendment’s Free Exercise Clause. Tribal rights have been violated more than have those of other minorities. The first thing that must occur to protect tribal people’s First Amendment rights is for the courts to move back to the proper application of the Establishment Clause. 2823. Furst, Gary C. “Will the Religious Freedom Restoration Act Be Strike Three against Peremptory Challenges?” Valparaiso Law Review 30 (Spring 1996): 701–48. After Smith, Congress passed RFRA to restore free exercise protections that the high court had denied in Smith. Furst examines the use of religion to exclude jurors.

2819. Echo-Hawk, Walter, Lenny Foster, and Alan Parker. “Issues in the Implementation of the American Indian Religious Freedom Act.” Wicazo Sa Review 19 (Fall 2004): 153–67. The act was a legislative policy act and did not go far enough. Non-Indian judges still have difficulty applying First Amendment rights to tribal situations.

2824. Gatliff, John. “City of Boerne v. Flores Wrecks RFRA: Searching for Nuggets among the Rubble.” American Indian Law Review 23, no. 2 (1998–1999): 285–358. In 1993, Congress passed the Religious Freedom Restoration Act, known as the Smith fix. The Supreme Court watered down the act in Boerne, ruling “that local and state governments, not the Congress or the judiciary, should decide when to grant religious exceptions to facially neutral laws.” In passing the act, Congress went beyond their Fourteenth Amendment powers and now the court has “reinvigorated the much-maligned Smith precedent.” Though the case did not involve tribal religious practices, it hurt tribal free exercise rights.

2820. Eisgruber, Christopher and Lawrence G. Sager. “Why the Religious Freedom Restoration Act Is Unconstitutional.” New York University Law Review 69 (June 1994): 437–76. After Smith, Congress passed this act creating a situation where Congress became the Supreme Court’s adversary. The authors support religious freedom, but do not want religious believers and their be-

2825. Geb, John. “Native American Culture: The Use of Feathers as a Protected Right.” American Indian Law Review 2 (Winter 1974): 105–15. Oklahoma tribal members were arrested and charged with violating the Migratory Bird Treaty Act. In United States v. Doxtator the court found them guilty of selling feathers to undercover agents, but not of possessing feathers. Tribal members must

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have First Amendment protection so they can purchase this tribal art made from feathers. 2826. Gedicks, Frederick Mark. “RFRA and the Possibility of Justice.” Montana Law Review 56 (Winter 1995): 95–117. The Smith decision led to an uproar as many feared the loss of religious freedom because of the court’s neutrality test. In response, Congress passed the RFRA and sent a loud message to the courts, a message that might be heard. 2827. Gooding, Susan Staiger. “At the Boundaries of Religious Identity: Native Americans Religions and American Legal Culture.” Numen 43 (May 1996): 157–83. AIRFA did little to stop religious oppression, nor has litigation been successful in recent years. Felix Cohen and Vine Deloria, Jr.’s writings are the basis for this study. 2828. Gould, Diane Brazen. “The First Amendment and the American Indian Religious Freedom Act: An Approach to Protecting Native American Religion.” Iowa Law Review 71 (March 1986): 869–91. Wisconsin v. Yoder involved the Amish who argued that state-required school attendance violated their right to free exercise. After reviewing the historical legislative and judicial background to the AIRFA, the Yoder test applies. Courts should weigh the tribes’ interests more strongly than federal or state interests. 2829. Greenawalt, Kent. “Religion and the Rehnquist Court.” Northwestern University Law Review 99 (Fall 2004): 145–75. Comparing the constitutional law of Warren Burger’s court with William Rehnquist’s court reveals a stark contrast. Burger maintained the status quo with a three-part test to prevent violations of the Establishment Clause. The Rehnquist court’s key decision in Employment Division v. Smith determined that peyote religion members have no constitutional religious protections if they violate the law. 2830. Gregory, David L. “Religious Harassment in the Workplace: An Analysis of the EEOC’s Proposed Guidelines.” Montana Law Review 56, no. 1 (Winter 1995): 119–44. Criticizes the Smith decision and argues that the RFRA does not bar EEOC protection for employees in the workplace. 2831. Hamilton, Marci A. “The Religious Freedom Restoration Act: Letting the Fox into the Henhouse under Cover of Section 5 of the Fourteenth Amendment.” Cardozo Law Review 16 (December 1994): 357–98. “Employment Division v. Smith was wrongly decided because it misunderstood this fundamental institutional distinction between the two branches” of gov-

ernment (legislative and judicial). Individual religious freedom has been improperly denied and Congress has wrongfully tried to force the issue legislatively. 2832. Hamilton, Marci A. “The Religious Freedom Restoration Act Is Unconstitutional, Period.” University of Pennsylvania Journal of Constitutional Law 1 (Spring 1998): 1–19. The Supreme Court decided in Boerne v. Flores that the 1993 RFRA “is unconstitutional.” Hamilton argues that under both federal and state law the act is unconstitutional because if not, the act would disturb the balance between church and state, not to mention that it violates separation of powers, the Establishment Clause, and due process. 2833. Harjo, Suzan Shown. “American Indian Religious Freedom Act after Twenty-five Years: An Introduction.” Wicazo Sa Review 19 (Fall 2004): 129–37. AIRFA was twenty-five in August 2003, and should be celebrated for its successes and amended for its shortcomings. 2834. Harjo, Suzan Shown. “Keynote Address: The American Indian Religious Freedom Act—Looking Back and Looking Forward.” Wicazo Sa Review 19 (Fall 2004): 143–51. President Carter signed the bill into law in 1978 and that was a high point, but Lyng demonstrated that the law had no teeth and was merely a legislative policy decision that opened the door for future legislation. 2835. Harris, Kathryn. “The American Indian Religious Freedom Act and Its Promise.” American Indian Journal of the Institute for the Development of Indian Law 5 (June 1979): 7–10. This legislation, intended to protect tribal free exercise claims, needs more power to reach its goal. 2836. Heady, Brian. “First Americans and the First Amendment: American Indians Battle for Religious Freedom.” Southern Illinois University Law Journal 13 (Summer 1989): 945–74. In 1963, the Supreme Court decided in Sherbert v. Verner that forcing a Seventh Day Adventist to work on Saturday restricted her religious freedom. That test was maintained until Smith, a free exercise case, reached the high court at nearly the same time that Lyng, a tribal sacred site on public lands case, was decided. The Supreme Court had an extraordinary opportunity to protect tribal free exercise in both cases but denied the Native Americans their pleas for equal treatment. 2837. Hess, Danielle. “The Undoing of Mandatory Free Exercise Accommodation.” Washington Law Review 66 (November 1991): 587–603. In Smith, the Supreme Court removed the balancing test that had been the cornerstone of protecting

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the Free Exercise Clause and replaced it with a neutral test. This adverse decision does not protect an individual against state infringement of religious freedom and leaves tribes particularly vulnerable. 2838. Idleman, Scott. “The Religious Freedom Restoration Act: Pushing the Limits of Legislative Power.” Texas Law Review 73 (December 1994): 247–334. Despite passage of RFRA, potential problems may arise including the increased secularization of society that is at odds with the act’s religious focus. Protection of the Free Exercise Clause may conflict with the Establishment Clause. 2839. “Indian Tribes and Civil Rights.” Stanford Law Review 7 (March 1955): 285–92. Catholic Pueblos at Jemez Pueblo refused to let Protestant Pueblos build a church. The latter brought suit in Toledo v. Pueblo de Jemez. This is not a state action, but the federal government might intervene based on the people’s constitutional rights to religious freedom. 2840. Inouye, Daniel K. “Discrimination and Native American Religious Rights.” University of West Los Angeles Law Review 23 (1992): 3–19. Criticizes the nation’s treatment of tribal America after the adverse Supreme Court decision in Lyng. 2841. Irwin, Lee. “Freedom, Law, and Prophecy: A Brief History of Native American Religious Resistance.” American Indian Quarterly 21 (Winter 1997): 35–55. Documents the history of legal suppression of Native American religions, and the different strategies Native people have utilized to mitigate those legal assaults, including accommodation, intertribal organization (e.g., AIM), and religious revitalization movements. These spiritual movements have facilitated “intertribal cooperation without denying the diversity of religious practices or values of any particular community.” Because the legacy of repression is so profound, AIRFA is insufficient. 2842. Jacobs, Margaret D. “Making Savages of Us All: White Women, Pueblo Indians, and the Controversy over Indian Dances in the 1920s.” Frontiers: A Journal of Women’s Studies 17, no. 3 (1996): 178–209. Reformers and BIA employees assembled a Secret Dance File that influenced Burke’s decision to ban certain tribal dances. Participants in the debate over the morality of these dances included white women who used the controversy as an opportunity to voice concerns about their “new roles and sexual standards.” Two groups of feminists were pitted against each other over the issue of morality in Pueblo dances.

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2843. Jamieson, Amie. “Will Bald Eagles Remain Compelling Enough to Validate the Bald and Golden Eagle Protection Act after ESA Delisting? The Ninth Circuit’s Analysis in United States v. Antoine.” Environmental Law 34 (Summer 2003): 929–59. Congress passed the Migratory Bird Act in 1918, the Bald Eagle Act in 1940, the Endangered Species Act in the 1970s, and RFRA in the 1990s, all intersecting through tribal rights to hunt eagles for religous purposes. In Antoine, the court’s discussion about delisting the bald eagle was important, but instead of strengthening the government’s protection of the bird, the court weakened the government’s regulating authority. 2844. Jassma, Keith. “The Religious Freedom Restoration Act: Responding to Smith; Reconsidering Reynolds.” Whittier Law Review 16, no. 1 (1995): 211–96. Reynolds v. United States struck down polygamy in 1879. RFRA’s broad view of the free exercise claim may open the door for a review and reversal of Reynolds. 2845. Kmiec, Douglas R. “The Original Understanding of the Free Exercise Clause and Religious Diversity.” UMKC Law Review 59 (Spring 1991): 591–610. Smith was a catastrophe and the “first amendment should be more faithfully applied,” especially in culturally diverse situations. 2846. Lambert, Valerie Long. “Native Spiritual Traditions and the Tribal State: The Oklahoma Choctaws in the Late Twentieth Century.” In Spirit Wars: Native North American Religions in the Age of Nation Building, by Ronald Niezen, 156–60. Berkeley: University of California Press, 2000. A case study seeking to illuminate tribal governments’ roles in either protecting or harming traditional religions. During the 1980s and 1990s, the Choctaw tribe “adopted a position of hostility.” The tribe may have done so as part of its and/or its leader’s, Hollis E. Roberts, efforts at nation building; the hostility may have reflected the views of the people; or it was “an unintended consequence of a campaign strategy.” 2847. Laycock, Douglas. “Free Exercise Clause and the Religious Freedom Restoration Act.” Fordham Law Review 62 (February 1994): 883–904. There was a public outcry in response to Smith. Oregon passed legislation legalizing peyote and Congress passed RFRA. Smith is at the center of two conflicts, one among denominations and the other among fringe religions and secular interests. 2848. Laycock, Douglas. “RFRA, Congress, and the Ratchet.” Montana Law Review 56 (Winter 1995): 145–70.

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The same court that wrote Smith will employ the same narrow thinking to undo the RFRA.

so, especially when education institutions are involved.

2849. Laycock, Douglas and Oliver S. Thomas. “Interpreting the Religious Freedom Restoration Act.” Texas Law Review 73 (December 1994): 209–45. After the Supreme Court decided in Smith to take a more neutral stance on the Free Exercise Clause, Congress passed this corrective legislation in an effort to treat all religion equally. This act “restores a fundamentally different vision of human liberty” than Smith.

2855. McConnell, Michael W. “A Response to Professor Marshall.” University of Chicago Law Review 58 (Winter 1991): 329–32. In his response to a critique, McConnell counters that William P. Marshall fails to define religion “that is distinguished from other forms of belief . . . [and] the Constitution treats religious belief differently— sometimes better, sometimes worse, depending on whether the context is one of interference or advancement.”

2850. Legters, Lyman H. “Indian Religion, the First Amendment, and the State.” In American Indian Policy: Self-Governance and Economic Development, edited by Lyman H. Legters and Fremont J. Lyden, 91–102. Westport, CT: Greenwood Press, 1994. The first amendment has not protected Native religious freedoms. With some exceptions, they have been denied free exercise and the Establishment Clause has been used against them. 2851. Loesch, Martin C. “The First Americans and the “Free” Exercise of Religion.” American Indian Law Review 18, no. 2 (1993): 313–77. Native American religious freedoms receive little protection because the courts do not have clear understanding of tribal cultural ways. To correct this inequality, there should be judicial reform. 2852. Loftin, John D. “Anglo-American Jurisprudence and the Native American Tribal Quest for Religious Freedom.” American Indian Culture and Research Journal 13, no. 1 (1989): 1–52. Because American Indians have had to seek protection of their religious freedom through the American legal system, they have had to adopt “the language of a foreign world.” The western legal perspective has failed to comprehend Native ideas of sacred space, land ownership, spirituality, and communalism and has therefore been inherently prejudiced. 2853. Lupu, Ira C. “Of Time and the RFRA: A Lawyer’s Guide to the Religious Freedom Restoration Act.” Montana Law Review 56 (Winter 1995): 171–225. RFRA challenges the judicial role in constitutional interpretation and review. 2854. Lyons, Edward. “Oregon v. Smith and the Religious Freedom Restorative Act: An Educational Perspective.” Journal of College and University Law 20 (Winter 1994): 333–50. The Smith decision created a new compelling interest test. RFRA was intended to return the older compelling interest test, but it will probably fail to do

2856. McConnell, Michael W. “Accommodation of Religion: An Update and a Response to the Critics.” George Washington Law Review 60 (March 1992): 685–742. The Supreme Court had been inclined to provide accommodation for the Free Exercise Clause, but that changed in Smith. The exceptions to the law made in Smith are discussed. 2857. Marshall, William P. “The Religious Freedom Restoration Act: Establishment, Equal Protection and Free Speech Concerns.” Montana Law Review 56 (Winter 1995): 227–48. This act limits federal power following the civil rights patterns. 2858. Martin, Jill E. “Constitutional Rights and Indian Rites: An Uneasy Balance.” Western Legal History 3 (Summer/Fall 1990): 245–69. The Indian assimilation campaign attempted to end tribal dancing and religious rites. Federal attempts to prevail in these two conflicts were doomed to failure. This overview covers the time period from the nineteenth century to the Smith case. 2859. Michaelsen, Robert S. “American Indian Religious Freedom Litigation: Promise and Perils.” Journal of Law and Religion 3, no. 1 (1985): 47–76. As tribal sites come under greater scrutiny, experts and tribal ritual leaders will be called on to testify. This is a difficult trail to follow since many things the tribal leaders know cannot be spoken of in the context of a courtroom. But in the end, the risk is worth taking. 2860. Michaelsen, Robert S. “Civil Rights, Indian Rights.” Society 21 (May/June 1984): 42–46. Critical of the federal government’s continuing failure to uphold Indian religious freedom. AIRFA is seen as a positive but disappointing step, it being a toothless resolution. Tribes have been forced to turn to the courts. Litigation brought advances in selected areas, but the U.S. Supreme Court has yet to render a

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key decision upholding the free exercise of Native religions. 2861. Michaelsen, Robert S. “Is the Miner’s Canary Silent? Implications of the Supreme Court’s Denial of American Indian Free Exercise of Religion Claims.” Journal of Law and Religion 6, no. 1 (1988): 97–114. AIRFA might have protected tribal religions, but the courts have constructed the Free Exercise Clause to deny religious freedom. The Supreme Court is divided between a minority of justices who take a broad view and the majority who take a narrow one, arguing that the government action against tribal religious practices must be characterized as “coercion or unequal treatment.” 2862. Michaelsen, Robert S. “Law and the Limits of Liberty.” In Handbook of American Indian Religious Freedom, edited by Christopher Vecsey, 116–33. New York: Crossroads, 1991. American law as applied to Indians focused on imposing limits and boundaries and Euro-American rules of behavior. “Law as medium” is a metaphor for “reconceptualizing both free exercise doctrine and American Indian law.” 2863. Michaelsen, Robert S. “The Significance of the American Indian Religious Freedom Act of 1978.” Journal of the American Academy of Religion 52 (March 1984): 93–115. The Free Exercise Clause is important to all, but AIRFA and the subsequent litigation have not made a large impact on the general public. Despite this oversight, the act raises constitutional questions. 2864. Michaelsen, Robert S. “‘We Also Have a Religion’: The Free Exercise of Religion among Native Americans.” American Indian Quarterly 7 (Summer 1983): 111–42. Surveys legislation and court decisions affecting Native American religious freedom. Public policy and practice regarding Native religious freedom improved in recent years, but a better understanding of Native beliefs and practices, and their appropriate translation in the western legal context, are necessary for profound change. 2865. Miles, Ray. “‘Give Us Our Catholic Priests’: The Osage Plea for Freedom of Religion.” Chronicles of Oklahoma 66 (Spring 1988): 52–63. The Osage understood a provision of an 1870 law providing for their removal to Indian Territory to guarantee their access to a Catholic school and church. Grant’s Peace Policy, however, placed them under Quaker control and the Osage were effectively denied freedom of religion. When the priests were not returned to them and a Catholic school was not

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established, tribal members became convinced that the federal government had no interest in honoring its treaties. 2866. Niezen, Ronald. Spirit Wars: Native North American Religions in the Age of Nation Building. Berkeley: University of California Press, 2000. Uses case studies chronologically from seventeenth-century Pueblo–Franciscan conflicts through the modern-day controversy surrounding repatriation and NAGPRA to demonstrate assaults on tribal religious freedoms, assaults leading to despair and representing “cultural genocide.” Involved factors include colonial missionary efforts, the residential schools, medical evangelism, federal legal repression (including illegalization of the Ghost Dance and the Potlatch laws), transgressions of sacred space, archaeological desecrations, and the New Age movement. 2867. O’Brien, Sharon L. “Freedom of Religion in Indian Country.” Montana Law Review 56 (Summer 1995): 451–84. Smith and Lyng were blows to tribal religious freedom. The RFRA is not going to protect tribal religious practices. Instead, the federal government must honor its trust relationship with tribal America to protect religious freedom. 2868. O’Brien, Sharon. “A Legal Analysis of the American Indian Religious Freedom Act.” In Handbook of American Indian Religious Freedom, edited by Christopher Vecsey, 27–43. New York: Crossroads, 1991. Historical overview of the legislation and analysis of subsequent, and inconsistent, judicial interpretations. AIRFA has fallen short of achieving its aims and courts have applied more stringent tests in dealing with Native religious rights than they have nonIndian groups pursuing religious freedoms. 2869. Olguin, John Phillip and Mary T. Olguin. “Isleta— The Pueblo that Roared.” Indian Historian 9 (Fall 1976): 2–13. In the 1960s, the popular priest at Isleta passed away while cultivating the field the Isleta gave him. A new priest came bringing his guns, a VW, and a housekeeper. He began to ask for money since they did not contribute to the church on a regular basis. He also refused to conduct church rites on the basis that the Pueblo continued to practice their own tribal rites. Eventually, he was escorted out of the pueblo. 2870. Paulsen, Michael Stokes. “A RFRA Runs through It: Religious Freedom and the U.S. Code.” Montana Law Review 56 (Winter 1995): 249–94.

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The RFRA created enforcement issues. The Civil Rights Division of the Department of Justice should bring suits against those who would violate the law. 2871. Perkins, Matthew. “The Federal Indian Trust Doctrine and the Bald and Golden Eagle Protection Act: Could Application of the Doctrine Alter the Outcome in U.S. v. Hugs.” Environmental Law 30 (Summer 2000): 701–27. Congress passed the Bald Eagle Protection Act in 1940 and extended protection in 1962 to Golden Eagles, but “the 1962 amendments permitted Native Americans to use eagle parts in religious ceremonies.” The Secretary of the Interior created the permit system to facilitate this process. Native Americans have unsuccessfully challenged this because it violates their First Amendment rights. The trust doctrine should be construed more liberally. 2872. Philp, Kenneth. “John Collier and the Crusade to Protect Indian Religious Freedom, 1920–1926.” Journal of Ethnic Studies 1 (Spring 1973): 22–38. In the early 1920s, Indian Inspector Reverend E. M. Sweet came down hard on the Hopi for continuing to practice their rites, including the Snake Dance. This action prompted Commissioner Burke to issue Circular 1665 in April 1921 reminding reservation superintendents of rules governing tribal dancing. As executive director of the American Indian Defense Association, Collier threw himself into the fight to protect tribal religious freedom. 2873. Pilling, Arnold R. “Native American Religious Rights: Constitutional Considerations.” Indian Historian 12 (Winter 1979): 13–19. Pilling prepared several position papers outlining tribal religious traditions on U.S.F.S. lands that became the foundation of First Amendment rights. These papers became part of the defense for tribal rights that were being compromised in the Eight Mile–Blue Creek Management Units. The federal government, especially the U.S.F.S., has infringed on tribal religious rights. 2874. Rhodes, John. “An American Tradition: The Religious Persecution of Native Americans.” Montana Law Review 52 (Winter 1991): 13–72. There are ample examples from Wounded Knee of 1890 to Smith of the nation’s denial of tribal free exercise rights. Ethnocentrism, found in the courts, is the root cause of these denials. 2875. Rice, Randolf J. “Native Americans and the Free Exercise Clause.” Hastings Law Journal 28 (July 1977): 1509–36. Peyote use has created conflicts between practitioners and state laws. In People v. Woody and Sher-

bert v. Verner courts applied a balancing test to protect free exercise rights. 2876. Rose, Bryan J. “A Judicial Dilemma.” Virginia Journal of Social Policy & the Law 7 (Fall 1999): 103–40. Courts have trouble with tribal free exercise cases because tribal religion and culture are inseparable and they are also tied to geography so that sites are imbued with meaning. The federal government’s trust responsibility provides a potential for minimizing threats to Native free exercise. 2877. Ryan, James E. “Smith and the Religious Freedom Restoration Act: An Iconoclastic Assessment.” Virginia Law Review 78 (September 1992): 1407–62. Congress mistakenly overturned the case through legislation. Religious groups have fared better with Congress than the courts. Groups gain exception under legislation and then seek protection of those rights in the courts. 2878. Saison, Tania. “Restoring Obscurity: The Shortcomings of the Religious Freedom Restoration Act.” Columbia Journal of Law and Social Problems 28 (Summer 1995): 653–90. Strict evaluation of Free Exercise Clause cases was the rule before Employment Division of Oregon v. Smith. This high standard was dropped in this case and a lower standard was instituted. Congress responded by passing the RFRA and reversing the Supreme Court’s decision in Smith. Because the restoration act does not account for the government’s compelling interest test and that is the problem of the Smith case, a lower standard can still be used. The “compelling” interest test should be eliminated in favor of a more flexible shifting test to account for differing situations. 2879. Santangelo, Francis X. “A Proposal for the Equal Protection of Non-Indians Practicing Native American Religions: Can the Religious Restoration Act Finally Remove the Existing Deference without a Difference?” St. John’s Law Review 69 (Winter–Spring 1995): 255–90. Seeks a way around the adverse Supreme Court decisions against tribal religious practices and sacred sites on public lands, and argues that the courts might treat differently non-Indians who practice a similar religion. 2880. Sewell, Ellen M. W. “The American Indian Religious Freedom Act.” Arizona Law Review 25 (1983): 429–72. This act raised an interesting question—does the law create an enforceable trust duty upon the U.S.? The act is an exercise by Congress in conducting the nation’s trust relationship to tribal members by mini-

Religious Freedom

mizing government interference in tribal customs and the law was written as a statement of policy, not as a protection. 2881. Simoneau, Susan E. “An Anomaly: Religious Freedom Protected through Political Process Rather Than the First Amendment.” University of Bridgeport Law Review 13 (Fall 1992): 155–81. Smith reached far beyond tribal issues. The Supreme Court redefined the Free Exercise Clause test and religious groups now must depend on the political process, not the First Amendment, to protect religious freedom. 2882. Smith, Andrea. “‘The One who did not Break His Promises’: Native Americans in the Evangelical Race Reconciliation Movement.” American Behavioral Scientist 50 (December 2006): 478–510. Evangelical Christianity has witnessed a growing number of tribal members that promote male dominance in tribal communities. This movement promotes treaty rights and sovereignty, but will tribal members push more to the right while white evangelicals move to the left? 2883. Smith, Huston and Phil Cousineau, eds. A Seat at the Table: Huston Smith in Conversation with Native Americans on Religious Freedom. Berkeley: University of California Press, 2005. Transcribed interviews with Vine Deloria, Jr., Walter Echo-Hawk, Winona LaDuke, Charlotte Black Elk, Douglas George-Kanentiio, Frank Dayish, Jr., Lenny Foster, Tonya Gonnella Frichner, Anthony Guy Lopez, and Chief Oren Lyons on topics including Native American relations with nature, NAC religious freedoms, prisoners’ rights, rights to informed consent, and access to sacred sites. 2884. Smith, Rodney K. “Sovereignty and the Sacred: The Establishment Clause in Indian Country.” Montana Law Review 56 (Winter 1995): 295–306. Examines reasons for and against the application of the Establishment Clause in Indian Country and concludes that it should not be extended because tribes should have broad sovereignty and wide latitude. 2885. Stuart, Michelle L. “The Religious Freedom Restoration Act of 1993: Restoring Religious Freedom after the Destruction of the Free Exercise Clause.” University of Dayton Law Review 20 (Fall 1994): 383–423. Congress has made a strong commitment to religious freedom and after Smith, Congress passed RFRA to protect the Free Exercise Clause. The hope is that government interests will yield to the interests of the individual in the area of freedom of religion, but will the act be challenged as unconstitutional?

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2886. Sunderland, Kaye McDonald. “Smith v. Employment Division; Cooper v. Eugene School District No. 4J; A Rational Approach to Free Exercise of Religion under Oregon’s Constitution.” Willamette Law Review 23 (Fall 1987): 955–82. In reviewing Oregon’s constitution’s religious freedom provision, state courts have placed a greater emphasis on context while context was not relevant in the federal court. Oregon’s pluralistic approach may have better served the individuals involved in Smith than the federal courts. 2887. Talbot, Steve. “Desecration and American Indian Religious Freedom.” Journal of Ethnic Studies 12 (Winter 1894): 1–18. AIRFA spawned new tribal religious freedom conflicts because of its inherent weakness; it applies only to federal agencies. 2888. Tapahe, Luralene. “After the Religious Freedom Restoration Act: Still No Equal Protection for First American Worshippers.” New Mexico Law Review 24 (Spring 1994): 331–63. The courts have mistreated tribal peoples’ sacred sites claims as occurred with the Lyng and Smith cases. The courts’ treatment of Native religious rights is contrasted with treatment of other minority rights. Tribal people are referred to as suspect minorities. 2889. Tisdale, Todd. “Culture v. Conservation: Does a Proposed Management Regulation Signal a New Approach to the Management of National Park Service Resources?” Boston College Environmental Affairs Law Review 29, no. 1 (2001): 111–41. The Department of the Interior proposed to allow Hopis with permits under the Bald and Golden Eagle Protection Act to take eagles from Wupakti National Monument. This is a cultural gesture, but illegal since the Department of the Interior lacks the authority to grant permission to the Hopis. 2890. Trope, Jack F. “Protecting Native American Religious Freedom: The Legal, Historical, and Constitutional Basis for the Proposed Native American Free Exercise of Religion Act.” New York University Review of Law & Social Change 20, no. 2 (1993): 373–403. The need to protect tribal religious practices was great after the Smith decisions. Trope supports the congressional enactment of corrective legislation. 2891. Vecsey, Christopher, ed. Handbook of American Indian Religious Freedom. New York: Crossroads, 1991. Multi-authored essays analyze AIRFA and suggest ways tribes can protect their religious rights. Vecsey, in the prologue, urges tribes to “be careful in pressing

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their claims for religious freedom not to undermine the spirit of their traditional religiousness.” A short epilogue by Hopi tribal vice chairman Vernon Masayesva comments on AIRFA. 2892. Vicenti, Carey N., Douglas Long, and Chief Arvol Looking Horse. “Religious Freedom and Native Sovereignty—Protecting Native Religions through Tribal, Federal, and State Law.” Wicazo Sa Review 19 (Fall 2004): 185–97. Tribal people have to be more resilient to the culture of law. That culture of law includes three sovereigns and all need to be used in the protection of tribal religious rights. 2893. Weaver, Jace. “Losing My Religion: Native American Religious Traditions and American Religious Freedom.” In Native American Religious Identity: Unforgotten Gods, edited by Jace Weaver, 217–29. Maryknoll, NY: Orbis Books, 1998. The hopefulness encouraged by passage of RFRA and other legislation protecting Native religious freedoms faded as Native issues faded in the national political focus during the 1990s. Promising legislation unfortunately has not and will not serve as a panacea. 2894. White, David R. M. “The American Religious Freedom Act: Native American Issues.” Wassaja/The Indian Historian 13 (September 1980): 39–44. Criticizes the American Indian Policy Review Commission Report on tribal religions. The urbanization of tribal America has reduced the Native Americans’ relationship with the natural world. To make matters worse, tribal councils prohibit the practice of tribal religions forcing conflicts between the tribal traditional leaders and the political leaders.

2895. White, James D. “The Osage Plea for Freedom Revisited.” Chronicles of Oklahoma 73 (Summer 1995): 192–225. Scrutinizes the thesis advanced by other scholars that Osage protests and pleas to have a Catholic mission established in Oklahoma elicited an affirmative federal response. White concludes that although they may have been in a state of crisis, with their religious ways fading, they had not wholly accepted Christianity as a solution. 2896. Wilkins, David. “Who’s in Charge of U.S. Indian Policy? Congress and the Supreme Court at Loggerheads over American Indian Religious Freedom.” Wiczao Sa Review 8 (Spring 1992): 40–64. Despite three branches of government that are intended to provide checks and balances, the Supreme Court has become the policy-making branch of the federal government. As a result of the court’s actions, corrective legislation, such as the RFRA, has been introduced to correct the court’s misguided religious decisions. 2897. Witheridge, David E. “No Freedom of Religion for American Indians.” Guest editorial, Journal of Church and State 18 (Winter 1976): 5–21. The severe nineteenth-century prohibitions on tribal religious freedom ended in 1934. Withridge traces the history of colonial and early American suppression of tribal religious practices that continue despite Collier’s decree for tolerance in the peyote legislation. Tribal members still are outside the constitutional protections of freedom of religion.

Chapter 30 Peyote and the Native American Church

tion, and Establishment Issues Raised by the Peyote Way Church of God Case.” American Indian Law Review 22, no. 2 (1997–1998): 475–507. The Fifth Circuit Court of Appeals denied the Peyote Way Church free exercise protection, thereby helping the NAC to protect its standing as a recognized tribal peyote religion.

2898. Aberle, David F. The Peyote Religion among the Navaho. Chicago, IL: Aldine, 1966. The religion addresses both traditional concerns and change. It offers community cohesion while also responding to individual needs. Its growth among the Navajos in the 1930s can be linked to the economically and emotionally distressing livestock-reduction program.

2903. Barnes, Richard L. “Constitutional Law: Applicability of Constitutional Limitations to Indian Tribal Government.” Oklahoma Law Review 16 (February 1963): 94–97. Reviews Native American Church of North America v. Navaho Tribal Council and disagrees with the federal appeals court’s decision to uphold the Navajo tribe’s right to forbid the use of peyote on the reservation.

2899. Aberle, David F. and Omer C. Stewart. Navaho and Ute Peyotism: A Chronological and Distributional Study. University of Colorado Studies Series in Anthropology, no. 6. Boulder: University of Colorado, 1957. Includes brief consideration of opposition to the religion’s spread, especially from Navajo tribal prohibitions.

2904. Barsh, Russel Lawrence. “The Supreme Court, Peyote, and Minority Religions: Zero Tolerance.” Wiczao Sa Review 7 (Fall 1991): 49–52. The Supreme Court, in Smith, ignored the First Amendment by establishing a zero-tolerance framework for minority or ethnic religious practices whenever these worldviews conflict with orthodox religious practices.

2900. Anderson, Edward F. Peyote, the Divine Cactus. 2nd edition. Tucson: University of Arizona Press, 1996; first edition, 1980. Description of spiritual uses of peyote, its historic spread among Native Americans, and the plant’s properties. One chapter discusses legal issues—including Smith and AIRFA.

2905. Beeson, Ann E. “Dances with Justice: Peyotism in the Courts.” Emory Law Review 41 (Fall 1992): 1121–84. Despite protective legislation, members of the NAC still suffer oppression. At first, “orthodox” tribal leaders and acculturated members opposed peyote, as did federal and state authorities. The Smith court failed to examine the Free Exercise Clause. The ethnocentric decisions must change.

2901. Babner, David Perry. “The Religious Use of Peyote after Smith II.” Idaho Law Review 28, no. 1 (1991–1992): 65–91. After Smith II, “the Free Exercise Clause does not protect religious conduct that is otherwise prohibited by a valid, neutral, and generally applicable law.” The only way around that ruling is for the state of Oregon to enact legislation exempting the use of peyote from current state prohibition on religious grounds.

2906. Boston, Rob. “Peyote Impasse: Native Americans Want to Use Peyote in Religious Ceremonies, but Oregon Officials Just Say No.” Church and State 43, no. 2 (1990): 8–11. Brief discussion of Smith and the NAC.

2902. Bannon, John Thomas, Jr. “The Legality of the Religious Use of Peyote by the Native American Church: A Commentary on the Free Exercise, Equal Protec-

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2907. Bradley, Gerard V. “Beguiled: Free Exercise Exemptions and the Siren Song of Liberalism.” Hofstra Law Review 20 (Winter 1991): 245–319. Defends the Smith decision as being a return to the real meaning of the Free Exercise Clause and a move away from individual liberalism and the emphasis on privatization of organized religion. 2908. Brown, Mark R. “Religion: The Psychedelic Perspective: The Freedom of Religion Defense.” American Indian Law Review 11, no. 2 (1983): 125–56. The Supreme Court developed a three-part test for religious freedom: does religion exist?, is there a burden against this practice?, is it sincere? The NAC has successfully met this test. 2909. Bullis, Ronald K. “Swallowing the Scroll: Legal Implications of the Recent Supreme Court Peyote Cases.” Journal of Psychoactive Drugs 22 (July–September 1990): 325–32. In 1988, the Supreme Court returned the Smith decision to the appeals court for a ruling on the legality of peyote in Oregon. Two years later, the Supreme Court decided that states can prohibit peyote sacramental use and deny state benefits to those who use peyote as part of the NAC. This last ruling reverses a long legal history of court protection of the NAC. These two cases have important legal ramifications for First Amendment rights. 2910. Clinton, Robert N. “Peyote and Judicial Political Activism: Neo-colonialism and the Supreme Court’s New Indian Agenda.” Federal Bar News and Journal 38 (March 1991): 92–101. Takes a hard line against Smith II. The Supreme Court is becoming a neo-colonial institution that is violating its historic role as a barrier to tyranny. 2911. “Court Decision regarding Peyote and the Native American Church.” American Anthropologist, New Series, 63, no. 6 (1961): 1334–37. Copy of the court transcript of an Arizona Supreme Court peyote case in which the court dismissed the ruling that the law the defendant was arrested under was unconstitutional. 2912. de Verges, George. “Constitutional Law: Freedom of Religion—Peyote and the Native American Church.” American Indian Law Review 2 (Winter 1974): 71–79. The NAC has First Amendment protections. Discusses several cases. 2913. Dorsay, Craig J. and Lea Ann Easton. “Employment Division v. Smith: Just Say ‘No’ To the Free Exercise Clause.” UMKC Law Review 59 (Spring 1991): 555–89.

Discusses Smith I and Smith II and provides an overview of the state and federal legislation written to overturn the adverse decisions in these two cases. 2914. Doyle, John T. “Constitutional Law: Dubious Intrusions—Peyote, Drug Laws, and Religious Freedom.” American Indian Law Review 8, no. 1 (1980): 79–96. Freedom of religion is a basic premise of the American nation, but is not respected in regards to tribal religious activities. 2915. Dunn, Robert G. “Constitutional Law—Free Exercise of Religion: The Road Narrows—Employment Division, Department of Human Resources v. Smith.” Suffolk University Law Review 25 (Spring 1991): 270–79. Oregon law prohibited the ingestion of peyote, and the Supreme Court ruled that a person’s faith does not excluded them from adhering to state laws, thus allowing the states freely to make exceptions to the past precedents and constricting tribal Free Exercise. 2916. Greene, Abner S. “The Political Balance of the Religious Clauses.” Yale Law Journal 102 (May 1993): 1611–44. Criticizes the court’s reasoning in Smith wherein the justices put religious and secular values into one pot. 2917. Hampton, Carol. “Peyote and the Law.” In Between Two Worlds: The Survival of Twentieth Century Indians, edited by Arrell Morgan Gibson, 166–83. Oklahoma City, OK: Oklahoma City Historical Society, 1986. Historical survey of legal challenges to the NAC, and the legal responses of its members and ACLU defenders. NAC members, if AIRFA is going to actually protect them, must educate authorities about their faith. 2918. Johnston, Robert. “Constitutional Law: Whitehorn v. State: Peyote and Indian Religious Freedom in Oklahoma.” American Indian Law Review 5, no. 1 (1977): 229–38. In this case, the Oklahoma courts recognized the First Amendment right of tribal people to use peyote in church services. This ruling permitted carrying peyote. 2919. Lam, Eddie. “Employment Division, Department of Human Resources of Oregon v. Smith: The Limits of the Free Exercise Clause.” Thurgood Marshall Law Review 16 (Spring 1991): 377–97. In the Smith decision, Oregon failed to prove that there was a necessity to violate an individual’s free exercise of religion and therefore the unemployment benefits should continue.

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2920. Lawson, Paul E. and C. Patrick Morris. “The Native American Church and the New Court: The Smith Case and Indian Religious Freedoms.” American Indian Culture and Research Journal 15, no. 1 (1991): 79–91. The Smith decision could lead to the end of federal protections, not only of the NAC, but also of other Indian religious freedoms. NAC members should “actively protect themselves from the Smith decision.” 2921. Lawson, Paul E. and Jennifer Scholes. “Jurisprudence, Peyote and the Native American Church.” American Indian Culture and Research Journal 10, no. 1 (1986): 13–27. Anti-peyote laws at the state and federal levels were motivated by Christian notions of sin, and were thus instances of the improper mixing of religion and government. Beginning in the 1960s, a series of appellate court decisions, such as People v. Jack Woody, et al. (1962) struck down such laws as violations of religious freedom. ICRA further protected NAC members against tribal bans on peyote use. 2922. Lindefield, Robert O. “The Smith Decision: A Legal ‘Foray into the Realm of the Hypothetical.’” Widener Journal of Public Law 2, no. 1 (1992): 219–79. After ruling in Smith I and Smith II, Congress introduced a bill to restore First Amendment Rights. The Supreme Court should never have heard the Smith case, but the court already had a decision written to change the free exercise test, they just needed a case to implement it. 2923. Long, Carolyn N. Religious Freedom and Indian Rights: The Case of Oregon v. Smith. Lawrence: University of Kansas Press, 2000. Case history and analysis following its course through the court system and drawing from interviews with Smith and other involved parties. The court reversed precedent to the detriment of tribal sovereignty and with ramifications for other peoples’ religious freedoms. 2924. Lupu, Ira C. “The Trouble with Accommodation.” George Washington Law Review 60 (March 1992): 743–81. A critical commentary on Smith. The court intended to only rule against Smith and Black, but instead delivered an accommodation decision that restricted the scope of the Free Exercise Clause relative to Native Americans. 2925. McConnell, Michael W. “Free Exercise Revisionism and the Smith Decision.” University of Chicago Law Review 57 (Fall 1990): 1109–53.

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The Free Exercise Clause declared that religions needed protection and was a doctrine that went unaltered for decades. The Smith decision (has) changed that, and is “contrary to the deep logic of the First Amendment.” 2926. Marin, Kenneth. “Employment Division v. Smith: The Supreme Court Alters the State of Free Exercise Doctrine.” American University Law Review 40 (Summer 1991): 1431–76. The Supreme Court deviated from past precedent regarding free exercise. The decision permitted Oregon to criminalize tribal religious freedom. 2927. Marshall, William P. “In Defense of Smith and Free Exercise Revisionism.” University of Chicago Law Review 58 (Winter 1991): 308–28. Smith is poorly written and demonstrates poor understanding of the Free Exercise Clause, but Marshall defends the decision’s “rejection of constitutionally compelled free exercise exemptions without defending Smith” and, in doing so, reject’s Michael W. McConnell’s arguments. 2928. Mason, James R., III. “Smith’s Free-Exercise “Hybrid” Rooted in Non-Free-Exercise Soil.” Regent University Law Review 6 (Fall 1995): 201–59. From 1963–1990, individuals could sue the state for incidental burdens that a state imposed on religious freedom. But in Smith, the Supreme Court shut the door to that legal argument, thus increasing the stakes. The court decided that the Free Exercise Clause was not even involved in this case. The one hope is for advocates to seek hybrid arguments to keep the door open ever so slightly by bringing a free exercise claim with a freedom of speech issue. 2929. Mazur, Cynthia S. “Marijuana as a ‘Holy Sacrament’: Is the Use of Peyote Constitutionally Distinguishable from that of Marijuana in Bona Fide Religious Ceremonies?” Notre Dame Journal of Law, Ethics & Public Policy 5, no. 3 (1991): 693–727. When Congress passed the 1965 Drug Abuse Control Amendments, it was done with the understanding that peyote used for bona fide religious purposes was exempt from regulations, thus permitting the church members to use it as a non-drug in ceremonies. This exemption was carried forward in the 1970 Controlled Substance Act. On the other hand, the Ethiopian Zion Coptic Church has been denied this same exemption for marijuana. 2930. Moore, Steven C. “Reflections on the Elusive Promise of Religious Freedom of the Native American Church.” Wicazo Sa Review 7 (Spring 1991): 42–50.

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The Supreme Court’s ruling in Smith closed the door for redress in the courts, thus forcing NAC members to seek redress in the political arena. 2931. Morgan, George R. and Omer C. Stewart. “Peyote Trade in South Texas.” Southwestern Historical Quarterly 87 (January 1984): 269–96. Native practitioners of the peyote religion became reliant on Hispano peyoteros of South Texas to supply them with peyote. Federal and state legal threats to the peyote religion and trade, as well as threats posed by alterations to the land and improper harvesting techniques, are discussed. 2932. Moses, L. G. “James Mooney and the Peyote Controversy.” Chronicles of Oklahoma 56 (Summer 1978): 127–44. Mooney, a member of the Bureau of Ethnology, placed himself at odds with the BIA, missionaries, and reformers by defending the peyote religion before the U.S. House of Representatives Sub-Committee on Indian Affairs in 1918. Moses provides details on the growing anti-peyote campaign of that era. 2933. Murphy, Sharon W. “Free Exercise of Religion: A Luxury Our Nation Can No Longer Afford? Employment Division v. Smith.” University of Dayton Law Review 16 (Winter 1991): 435–70. The ramifications of the Supreme Court’s new rule in Smith II are great and affect the Free Exercise Clause. This decision reduces the force of the Free Exercise Clause and reduces the protection of minority religions. 2934. Musial, James J. “Free Exercise in the ’90s: In the Wake of Employment Div., Dep’t of Human Resources v. Smith.” Temple Political & Civil Rights Law Review 4 (Fall 1994): 15–55. During debates and drafting of the Constitution, delegates included the Free Exercise Clause in the First Amendment of the Bill of Rights to reassure those who feared state interference in religion. Over the years, the nation became more religiously diverse, but then Smith’s “compelling interest standard” was replaced with a less-restrictive test. Federal courts subsequently split on how to apply the decision. 2935. Mykkeltvedt, Roald. “Employment Division v. Smith: Creating Anxiety by Relieving Tension.” Tennessee Law Review 58 (Summer 1991): 603–34. The denial of the “compelling interest” balancing test and destruction of the Lemon decision opens the door to greater government scrutiny of less popular religious orders. 2936. Parker, Christopher. “A Constitutional Examination of the Federal Peyote Exemptions for Native Ameri-

can Religious Peyote Use.” Brigham Young University Journal of Public Law 16, no. 1 (2001): 89–112. Congress amended AIRFA in 1991 to include the sacramental use of peyote by NAC members in response to Employment Division, Department of Human Resources v. Smith. AIRFA will not be an effective defense for the NAC because states, in most cases, will argue that the act violates the equal protection and establishment clauses. 2937. Parkinson, Bradley Donald. “Religion, Zoning, and the Free Exercise Clause: The Impact of Employment Division v. Smith.” Brigham Young University Journal of Public Law 7, no. 2 (1993): 395–412. The Smith decision has had an effect on free exercise freedoms beyond tribal religious rights. The decision will affect local government zoning options. 2938. Pavlik, Steve. “The U.S. Supreme Court Decision on Peyote in Employment Division vs. Smith.” Wicazo Sa Review 8 (Fall 1992): 30–39. The Smith ruling is bad law. The Supreme Court’s decision has sent the clear message to tribal Americans that they will not obtain First Amendment protections. 2939. Perry, Rashelle. “Employment Division, Department of Human Resources v. Smith: A Hallucinogenic Treatment of the Free Exercise Clause.” Journal of Contemporary Law 17 (1991): 359–76. In Smith II, the court “engaged in a stilted and ultimately destructive interpretation of the Free Exercise Clause” and made a “radical departure from traditional free exercise jurisprudence.” In doing so, it sent an ominous message to all minority religions. 2940. Pochop, Sandra Ashton. “Employment Division, Department of Human Resources of Oregon v. Smith: Religious Peyotism and the ‘Purposeful’ Erosion of Free Exercise Protection.” South Dakota Law Review 36, no. 2 (1991): 358–81. In Smith II, the Supreme Court departed from the traditional free exercise test and failed to examine this case as an unemployment issue. Smith faced the terrible choice between disobeying the state law and violating his religious beliefs. The outcome in this decision opens the door for further state encroachments on religious freedom. 2941. Rains, Rebecca. “Can Religious Practice Be Given Meaningful Protection after Employment Division v. Smith?” University of Colorado Law Review 62, no. 3 (1991): 687–710. By throwing away the Sherbert balancing test, the Supreme Court has reduced the Constitution’s role in protecting religious freedom as the individual’s inter-

Peyote and the Native American Church

ests are balanced against the interests of the government. 2942. Rosen, Mark J. “Constitutional Law—Free Exercise of Religion—Native Americans May Be Denied State Unemployment Benefits for Ceremonial Ingestion of Peyote without Violating First Amendment’s Free Exercise Clause.” Rutgers Law Journal 23 (Fall 1991): 209–30. In deciding this case, the Supreme Court abandoned the Sherbert v. Verner test that favors a high level of scrutiny and replaced it with a lower standard, noting that Oregon did not have exception legislation for the ritual use of peyote. The court failed to apply the modern concept of the Free Exercise Clause. 2943. Rosenstein, Steve. “Employment Division v. Smith: Sacramental Peyote Use and Free Exercise Analysis—Vision Wanted.” UMLA Law Review 22 (1991): 185–220. The Supreme Court made a great departure from past approaches to the Free Exercise Clause when deciding Smith. It has returned to how the law was read in the nineteenth-century Mormon cases. It endangers religious liberty. 2944. Rugg, Janet V. and Andria A. Simone. “The Free Exercise Clause: Employment Division v. Smith’s Inexplicable Departure from the Strict Scrutiny Standard.” St. John’s Journal of Legal Commentary 6, no. 1 (1990): 117–41. The Supreme Court’s return to mainstream judicial interpretation of the Free Exercise Clause has dealt a hard blow to tribal religious practices. Smith moved from a strict standard that weakened the Free Exercise Clause. The only remedy is for Congress to enact corrective legislation. 2945. Santoli, Timothy J. “A Decade After Employment Division v. Smith: Examining how Courts are still Grappling with the Hybrid-Rights Exception to the Free Exercise Clause of the First Amendment.” Suffolk University Law Review 43, no. 3 (2001): 649–72. The Free Exercise Clause was considered an inalienable and untouchable right until Smith, wherein the Supreme Court decided that a state did not need a compelling reason “for refusing to exempt religious conduct from the operation of neutral laws of general applicability.” Since Smith, lower courts are using a hybrid test that varies from circuit to circuit, thus creating problems. This hybrid definition needs to be defined or there should be a return to the pre-Smith standard. 2946. Simmons, Benjamin F. “Implications of Court Decisions on Peyote for the Users of LSD.” Journal of Church and State 11 (Winter 1969): 83–91.

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The arrest of three Navajos in 1962 for peyote use was the beginning of federal and state actions to criminalize hallucinaogens. Anything that was “drug related” came under scrutiny, including the use of peyote as a sacrament in the NAC, even though the church was incorporated in twelve states in 1960. 2947. Slotkin, James S. The Peyote Religion: A Study in Indian–White Relations. Glencoe, IL: Free Press, 1956. Considers Peyotism in the context of the theory of nationalism, and considers its spread to be a Native reaction to, and defense against, white domination. It is an accommodationist and pan-Indian nativist response. 2948. Smith, Huston and Rueben Snake. One Nation under God: The Triumph of the Native American Church. Sante Fe, NM: Clear Light Publishers, 1996. Primarily a study of the symbolism, road men, visions, and NAC healing practices, but there are several chapters that deal with the church’s legal conflicts, including the church’s responses to legal challenges, the legal battles through Smith, and congressional protection of the church through the 1994 amendment to AIRFA. 2949. Sophy, Michael M. “Constitutional Law—Freedom of Religion—Unconstitutionality of State Narcotics Statute as Proscribing the Sacramental Use of Peyote by Indians—People v. Woody.” Arizona Law Review 6 (Spring 1964–1965): 305–10. The court applied the Sherbert v. Verner test to the Navajos who used peyote. The state had to prove that their interests outweighed the interests of those who used peyote. The court extended the law toward a more liberal interpretation of religious freedom. 2950. Stewart, Omer C. “Friend to the Ute.” Colorado Heritage, no. 1 (1982): 269–75. Stewart discusses his personal experiences researching the Ute peyote religion and briefly surveys the history of the NAC’s struggle for religious freedom. 2951. Stewart, Omer C. “History of Peyotism in Nevada.” Nevada Historical Society Quarterly 25, no. 3 (1982): 197–202. Discusses the spread of the religion in Nevada and BIA-sponsored repression. 2952. Stewart, Omer C. “The Native American Church and the Law with Description of Peyote Religious Services.” Westerners Brand Book 17 (1961): 5–47. Describes the early opposition to the NAC and the members’ efforts to incorporate as a religious institution in various states. Stewart also discusses his work

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in several state peyote cases designed to overturn state anti-peyote laws. 2953. Stewart, Omer. “Peyote and the Arizona Court Decision.” American Anthropologist 63 (December 1961): 1334–35. It is necessary to stop using the word narcotic when describing peyote’s use in a tribal ceremony. Stewart was an expert witness in a recent Arizona court case. He includes a letter from Bernard E. Groton, M.D. of and a copy of the court transcript and decision in the case of State of Arizona vs. Mary Attakai. 2954. Stewart, Omer. “Peyote and Colorado’s Inquisition Law.” Colorado Quarterly 5, no. 1 (1956): 77–90. In 1935, Colorado passed anti-peyote legislation. Laws against religion are as difficult to enforce as laws against drinking. 2955. Stewart, Omer. “Peyote and the Law.” In Handbook of American Indian Religious Freedom, edited by Christopher Vecsey, 44–62. New York: Crossroads, 1991. Reviews the history of suppressions of the peyote religion and comments on Smith. It is not clear that AIRFA and other protective legislation will ensure religious freedom for Indian peyote users. 2956. Stewart, Omer C. Peyote Religion: A History. Norman: University of Oklahoma Press, 1987. Detailed history of the spread of the peyote religion, and the NAC, that also analyzes spiritual meaning and discusses legislation and litigation involving peyote and religious freedom. Peyote religion has been a “unifying influence” and positive force in Native life, but its history has been one of divisiveness and controversy. 2957. Stewart, Omer C. “Peyotism in California.” Journal of California and Great Basin Anthropology 8, no. 2 (1986): 217–25. Studies the religion’s spread from 1936 to 1984, with some discussion of legal aspects. 2958. Stewart, Omer C. “Peyotism in Montana.” Montana 33, no. 2 (1983): 2–15. Details the religion’s spread among Montana tribes and includes some discussion of government and missionary suppression and legal aspects. 2959. Stewart, Omer C. Washo–Northern Paiute Peyotism: A Study in Acculturation. Berkeley: University of California Press, 1944. Studies the spread of the religion to the Washo–Northern Paiute and commonly given explanations that opponents gave for rejecting it.

2960. “The Supreme Court—Leading Cases.” Harvard Law Review 104 (November 1990): 198–209. Employment Division v. Smith is a free exercise case that upheld an Oregon law based on the fact that Native use of peyote was an infraction of work rules and that using peyote made the defendents ineligible for unemployment benefits. 2961. Tepker, Harry F., Jr. “Hallucinations of Neutrality in the Oregon Peyote Case.” American Indian Law Review 16, no. 1 (1991): 1–56. In Smith II, the Supreme Court went outside the Constitution and case law to destroy traditional religious freedom. Five justices rejected the defendants’ free exercise claim to use peyote as part of their religious rituals as members of the NAC. The court constructed new tests for free exercise, writing that a neutral law does not violate religious freedom. 2962. “Text of the U.S. Supreme Court Decision: Employment Division, Department of Human Resources of Oregon, et al. v. Alfred L. Smith et al.” Journal of Church and State 32 (Summer 1990): 691–718. Published text of the U.S. Supreme Court’s infamous Smith decision that cut the heart from the Free Exercise Clause of the U.S. Constitution for groups that were outside of traditional orthodoxy. 2963. “The Trobriner Decision.” The Indian Historian 6 (Fall 1973): 26–31. In 1962, several Navajos were holding a peyote meeting near Needles, California, when police raided the ceremony and arrested the participants. The California Supreme Court, in 1964, reversed a lower court decision protecting tribal rights to use peyote in their rituals. 2964. Wachtel, David. “Peyotism: Ritual, History, Legality.” Wassaja/Indian Historian 13 (November 1980): 38–44. Describes NAC peyote use for the purpose of seeking meaning in the visions. Despite freedom of religion, there have been state efforts to stop the use of peyote. 2965. Wellons, Gregory D. “Employment Division, Department of Human Resources v. Smith: The Melting of Sherbert Means a Chilling Effect on Religion.” University of San Francisco Law Review 26 (Fall 1991): 149–73. The Sherbert court created a test that any government action that burdened the free exercise of religion was unconstitutional. This test stood until Smith, wherein the Supreme Court reversed the burden of proof test.

Peyote and the Native American Church

2966. Willard, William. “The First Amendment, AngloConformity and American Indian Religious Freedom.” Wicazo Sa Review 7 (Spring 1991): 25–41. The U.S. dodged the First Amendment when trying to suppress the NAC by making secular arguments against these church members, claiming peyote was being used as a narcotic. This path was taken to avoid any appearance of denial of religious freedom. 2967. Witte, John, Jr. “The Essential Rights and Liberties of Religion in the American Constitutional Experiment.” Notre Dame Law Review 71 (1996): 371–445. Criticizes the court in Smith for reducing the Free Exercise Clause to a single principle and rejecting all

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the other components associated with free exercise of religion. 2968. Wood, James E., Jr. “Abridging the Free Exercise Clause.” Journal of Church and State 32 (Autumn 1990): 741–52. When the Supreme Court ruled in Smith, the court eliminated the “compelling interest” in Free Exercise Clause cases. A state law does not have to meet the “compelling interest” test. This ruling gives the states more power over tribal people and the decision’s potential implications will be dangerous if the ruling is applied across all religions.

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2969. Akins, Nancy. “New Directions in Sacred Lands Claims: Lyng v. Northwest Indian Cemetery Protective Association.” Natural Resources Journal 29 (Spring 1988): 593–605. This case moved away from protecting the Free Exercise Clause by stressing that a tribal group must prove that they cannot practice their religion in any other place. The decision also provides lower courts with greater latitude in deciding sacred land claims.

of that site ended. This was the first time that a religious argument served as the foundation for restoring a sacred site and the land back to a tribe. 2974. Bodine, John J. “Taos Blue Lake Controversy.” Journal of Ethnic Studies 6 (Spring 1978): 42–48. A sixty-four-year conflict ended in 1970 when President Nixon signed legislation returning Blue Lake to Taos Pueblo. This lake is essential as a water source and for its role in the annual August Taos pilgrimage. The public disrupted and contaminated the annual rites. To regain the lake, the Pueblos had to reveal more about their life ways and worldviews than they would have normally.

2970. Barsh, Russel L. “Grounded Visions: Native American Conceptions of Landscapes and Ceremony.” St. Thomas Law Review 13 (Fall 2000): 127–54. Describes several different tribal landscapes and their importance to tribal communities, both past and present. These landscapes are important for maintaining tribal knowledge systems. Also discusses the current legal framework in which tribal people must work to maintain these landscapes.

2975. Bonham, Charlton H. “Devils Tower, Rainbow Bridge, and the Uphill Battle Facing Native American Religion on Public Lands.” Law and Inequality 20 (Summer 2002): 157–202. Tribes are demanding more rights and receiving publicity, which increases awareness of the use of culturally sensitive sites on public lands. Courts are using the competitive exclusion principle and even the doctrine of discovery to exclude tribal members from gaining access to these sensitive sites.

2971. Billie, Bobby C. “The Miami Circle and Beyond.” St. Thomas Law Review 13 (Fall 2000): 113–15. A Seminole spiritual leader defines the entire region of southern Florida as sacred ground. 2972. Bluemel, Erik B. “Prioritizing Multiple use on Public Lands after Bear Lodge.” Boston College Environmental Affairs Law Review 32, no. 2 (2005): 365–94. After the Circuit Court ruling in Bear Lodge, the court continued a pattern of decisions that were not satisfying to tribal people. Free exercise arguments do not work well in this climate. Examining tribal religious practices as culture would prevent the U.S. from favoring one religion over another.

2976. Boyles, Kristen L. “Saving Sacred Sites: The 1989 Proposed Amendment to the American Indian Religious Freedom Act.” Cornell Law Review 76 (July 1991): 1117–49. The Lyng decision destroyed the strength of the original act. In response, Morris K. Udall introduced legislation in 1989 to give tribes a chance to practice free exercise while criticizing the court for its narrow Lyng ruling. The 1989 proposed amendments, which failed to pass, were aimed at strengthening AIRFA to permit “the practice of established Indian religions to continue.”

2973. Bodine, John J. “Blue Lake: A Struggle for Indian Rights.” American Indian Law Review 1 (Winter 1973): 23–32. In 1970, the U.S. returned Blue Lake to the Taos people and a sixty-four-year struggle to gain control

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2977. Brady, Joel. “‘Land Is Itself a Sacred, Living Being’: Native American Sacred Site Protection on Federal Public Lands Amidst the Shadows of Bear Lodge.” American Indian Law Review 24, no. 1 (1999–2000): 153–86. This 1999 decision dealt with climbers’ complaints that the National Park Service’s Final Climbing Management Plan at Devil’s Tower violated the Establishment Clause. The court’s finding that the climbers had no standing may lead to a Supreme Court grant of certiorari if appealed. Brady contends, “the time-honored affirmative mandate of accommodation of religion can be fully honored in this case, while at the same time remaining well within the permissible bounds of the Court’s Establishment Clause jurisprudence.” 2978. Bricker, David C. “A Kantian Argument for Native American Cultural Survival.” University of Detroit Mercy Law Review 76 (Spring 1999): 789–802. The Supreme Court in Lyng admitted that building a road in a public forest would have adverse affect on the tribal community. The same is true for Rainbow Bridge. Individuals and societies need to be aware that courts can be morally wrong when decisions affect cultural survival. 2979. Brooks, Samuel D. “Native American Indians’ Fruitless Search for First Amendment Protection of Their Sacred Religious Sites.” Valparaiso University Law Review 24 (Spring 1990): 521–51. The Supreme Court, in Lyng, misapplied the Yoder “centrality inquiry” in public land cases. The court searched for a way to tie tribal religion to specific sacred sites and, in the process, denied tribes their First Amendment free exercise rights. 2980. Brown, Brian Edward. “Native American Religions, the First Amendment, and the Judicial Interpretation of Public Land.” Environmental History Review 15 (Winter 1991): 19–44. In the 1980s, tribal free exercise claims against the U. S. escalated as federal land management agencies interfered with tribal freedom of religion. The Tellico Dam initiated the first suit of the decade and then the Navajos brought suit in Badoni. The decade ended with Lyng entering the court system and the Supreme Court shamelessly declared that Forest Service road construction had no affect on tribal freedom of worship. 2981. Brown, Brian Edward. Religion, Law, and the Land: Native Americans and the Judicial Interpretation of Sacred Land. Westport, CT: Greenwood Press, 1999. Examines five free exercise cases. The last years of the twentieth century witnessed several tribes, including Cherokees and Navajos, filing free exercise

claims in federal court. The Supreme Court’s decision in Lyng developed a new test for free exercise that was difficult for tribes to overcome. 2982. Burton, Lloyd and David Ruppert. “Bear’s Lodge or Devils Tower: Intercultural Relations, Legal Pluralism, and the Management of Scared Sites on Public Lands.” Cornell Journal of Law and Public Policy 8 (Winter 1999): 201–47. Tribal people fear the desecration of the sacred Devils Tower National Monument in Wyoming by recreational climbers. The National Park Service needs to understand not only the importance of its properties to different cultures, but establish mediation practices to reach settlements. For those tribal members who do not want to participate in mediation, the Establishment Clause provides a remedy, which will bring out the multi-cultural dimensions of the landscape. 2983. Byler, Celia. “Free Access or Free Exercise? A Choice between Mineral Development and American Indian Sacred Site Preservation on Public Lands.” Connecticut Law Review 22 (Winter 1990): 397–435. The 1872 Mining Act and efforts to preserve tribal sacred sites are in conflict despite congressional passage of AIRFA. The Roy and Lyng rulings reveal that the First Amendment Free Exercise Clause offers little protection to tribal rights. Since mining is winning this conflict, AIRFA should be amended to provide federal statutory protection. 2984. Carpenter, Kristen A. “In the Absence of Title: Responding to Federal Ownership in Sacred Sites Cases.” New England Law Review 37 (2002–2003): 619–33. Instead of following the dead-end road that the Supreme Court created in Lyng, tribes should employ property law to support their free exercise claims using common law, usufruct rights, and trust doctrine arguments. 2985. Carpenter, Kristen A. “A Property Rights Approach to Sacred Sites Cases: Asserting a Place for Indians as Non-owners.” UCLA Law Review 52 (April 2005): 1061–1148. Federal courts have used federal property rights to circumvent tribal Free Exercise Clause protections on federal lands. Property law recognizes the rights of the non-owners and, as non-owners, tribal members have property rights on public lands. Carpenter examines some of the potential avenues that tribal communities may follow to protect sacred sites. Their approach should be part of a multi-tribal strategy. 2986. Carson, Richard M. “The Free Exercise of Native American Religions on Public Lands: The Development of and Outlook for Protection under the Free

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Exercise Clause of the First Amendment.” Public Land Law Review 11 (1990): 181–95. Discusses Lyng and suggests that the Supreme Court was correct in doing away with the centrality test but needed to explain its reasoning. On the other hand, the high court’s prohibit vs. accommodate approach was not appropriate. The end result is that the Free Exercise Clause provides little hope and a statutory enactment by Congress, with guidelines, is needed. 2987. Cohen, Mark S. “American Indian Sacred Religious Sites and Government Development: A Conventional Analysis in an Unconventional Setting.” Michigan Law Review 85 (February 1987): 771–808. Specific sites, locales, and places are not within the traditional scope of Free Exercise Clause. When Lyng reached the judicial system, the courts found themselves in unfamiliar terrain seeking to use past free exercise precedents in new conditions. Several modifications are necessary. 2988. Collins, Camala. “No More Religious Protection: The Impact of Lyng v. Northwest Indian Cemetery Protection Association.” Washington University Journal of Urban and Contemporary Law, 38 (Fall 1990): 369–84. The Supreme Court had defended the Free Exercise Clause to protect religious freedom. Then in the Lyng decision the high court declared that the government had not infringed upon tribal religious freedom “because the government did not coerce Native Americans into practicing a different religion or penalize their beliefs.” This decision may make it more difficult to bring suit against the government for future free exercise violations even when federal land decisions may destroy ritual sites. 2989. Collins, Richard B. “Sacred Sites and Religious Freedom on Government Land.” University of Pennsylvania Journal of Constitutional Law, 5 (January 2003): 241–70. In seeking their rights to sacred sites on pubic lands, indigenous peoples have had more success in pursuing legislative than judicial solutions. The essay examines this problem and legislative successes from New Zealand to Canada. 2990. Cross, Raymond, and Elizabeth Brenneman. “Devils Tower at the Crossroads: The National Park Service and the Preservation of Native American Cultural Resources in the 21st Century.” Public Land & Resources Law Review 18 (1997): 5–45. The superintendent of the Devils Tower National Monument issued a multi-use plan that imposed a voluntary ban for commercial rock climbing permits during June when Lakota use the tower for cultural

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purposes. The action resulted in Bear Lodge Multiple Use Ass’n v. Babbitt. The federal tribal judge in Wyoming lifted the commercial ban, illustrating the obstacles that tribal peoples are encountering in using public lands that encompass culturally sensitive sites. 2991. Daes, Erica-Irene. “The Indispensable Function of the Sacred.” St. Thomas Law Review 13 (Fall 2000): 29–34. Considers the importance of sacred sites to tribal as well as non-tribal peoples. 2992. Dahl, Eric William. “Native American Religious Freedom and Federal Land Management.” Northeast Indian Quarterly 7 (Summer 1990): 14–23. Religious freedom issues often take on the face of property conflicts. Tribal people often obtained negative court rulings as tribal members sought to protect their First Amendment rights. Legislation such as ICRA and AIRFA still have not protected tribal rights to sacred sites on public lands. This is a fundamental human right. 2993. DeLashment, W. Pemble. “The Indian Wars Continued.” Mississippi College Law Review 10 (Fall 1989): 79–93. The Supreme Court, in Lyng, constructed a nearly impenetrable barrier for tribes wishing to exercise their free exercise claims on public lands. The Court was not willing to protect nonmainstream religious activities, but was willing to protect the mainstream religious beliefs, making it difficult for the tribes to balance their interests against the public interest. 2994. Deloria, Vine, Jr., “Sacred Lands and Religious Freedom.” Association on American Indian Affairs, New York (May 1991): 4–11. Response to the Lyng decision. Most legal scholars were perplexed by the Supreme Court’s refusal to defend the Free Exercise Clause and Native American religious freedom in this case. This decision created crisis in Indian Country because it failed to protect tribal “traditional religions.” 2995. Ensworth, Laurie. “Native American Free Exercise Rights to the Use of Public Lands.” Boston University Law Review 63 (January 1983): 141–79. The Supreme Court, in Wisconsin v. Yoder, created a balancing test and later the court employed this test to determine if federal interests outweigh tribal religious interests on public lands. The courts dismissed the Sequoyah and Badoni cases, claiming that Cherokee and Navajo ceremonial interests were not strong enough to claim free exercise protection. These two cases retreated from long-standing precedents of free exercise protection.

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2996. Falcone, Barbara S. “Legal Protections (Or the Lack Thereof) of American Indian Sacred Religious Sites: The Need for Comprehensive Legislation.” Federal Bar News & Journal 41 (September 1994): 568–77. In the aftermath of Smith II, the American Indian Religious Freedom Coalition suggested amendments to AIRFA, thus strengthening its defense of free exercise rights. 2997. Falk, Donald. “Lyng v. Northwest Cemetery Protective Association: Bulldozing First Amendment Protection of Indian Sacred Lands.” Ecology Law Quarterly 16, no. 2 (1989): 515–70. The Yurok, Karauk, and Tolowa lost this important case. They attempted to stop the construction of the Gasquet-Orleans Road through National Forest lands considered sacred and necessary for their cultural rites. The Supreme Court ruled that the Free Exercise Clause of the First Amendment could not stop public lands development, and thus reduced free exercise protections for tribal Americans. 2998. Fish, Jeff. “Sacred Site Free Exercise Claims on Government Land: The Constitutional Slighting of Indian Religions.” New Mexico Law Review 20 (Winter 1990): 113–34. Tribal people must pass a rigid court test demonstrating that government activity on pubic lands has hindered and burdened their religious practices, and that this site is “central” and “indispensable” to their religious activity. In Lyng, the Supreme Court had an opportunity to hear Yurok, Karok, and Tolowa frustration, but listened to government concerns instead. 2999. Forbes-Boyte, Kari. “Litigation, Mitigation, and the American Indian Religious Freedom Act: The Bear Butte Example.” Great Plains Quarterly 19 (Winter 1999): 23–34. AIRFA has failed to guarantee the protection of tribal sacred sites like Bear Butte. The author describes the importance of that site to the Lakota and the controversies surrounding their reliance on it and multiple-use policies. AIRFA must be interpreted more broadly in such cases. 3000. Freedman, Eric. “Protecting Sacred Sites on Public Land: Religion and Alliances in the Mato TipilaDevils Tower Litigation.” American Indian Quarterly 31 (Winter 2007): 1–22. Several orthodox religious groups filed friend of the court briefs to support the tribal members in the case of Bear Lodge Multiple Use Association. Nontribal support is widening for tribal free exercise rights.

3001. French, Rebekah. “Free Exercise of Religion on the Public Lands.” Public Land Law Review 11 (1990): 197–209. In Lyng, the tribes who sought Free Exercise Clause protection were not well received. The high court did not use past tests, but the majority went a new direction while the dissenting judges sought to understand the issues that were at the core of this controversy. Citing Lyng, the Eighth Circuit Court denied the Lakota use of the Black Hills to exercise their First Amendment rights . 3002. Gardner, Peter J. “The First Amendment’s Unfulfilled Promise in Protecting Native American Sacred Sites: Is the National Historic Preservation Act a Better Alternative?” South Dakota Law Review 47, no. 1 (2001–2002): 68–84. As the nation becomes more industrialized, tribal sacred sites are in greater danger, especially since the Supreme Court has not defended tribal First Amendment free exercise claims. Another alternative for tribes may be the National Historic Preservation Act that would permit tribes to place sacred sites under its protection. 3003. Gerstenblith, Patty. “Protection of Cultural Heritage Found on Private Land: The Paradigm of the Miami Circle and Regulatory Takings.” St. Thomas Law Review 13 (Fall 2000): 65–111. In 1998, archaeologists uncovered a circular Tequesta tribal structure, the most complete ever, initiating a conflict over the preservation or the destruction of the site by development. Moneys were raised and the site was purchased and saved. Gerstenblith proposes a uniform state statute to protect sites on private land. 3004. Gillingham, John. “Native American First Amendment Sacred Lands Defense: An Exercise in Judicial Abandonment.” Missouri Law Review 54 (Summer 1989): 777–96. In examining the Lyng decision and analyzing the Supreme Court’s opinion, Gillingham is pessimistic about tribal America’s First Amendment claims. A congressional amendment to AIRFA might provide protections. 3005. Gordon, Sarah B. “Indian Religious Freedom and Government Development of Public Lands.” Yale Law Journal 94 (May 1985): 1447–71. The courts have failed to understand the importance of sacred sites to tribal religions and have misinterpreted tribal free exercise claims on public property for site-specific locations. Congress responded by passing AIRFA in 1979. Judicial doctrine biased

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toward Western religions still permeates tribal free exercise decisions. 3006. Gordon-McCutchan, R. C. The Taos Indians and the Battle for Blue Lake. Santa Fe, NH: Red Crane Books, 1991. The Taos Pueblo struggle for Blue Lake involved freedom of religion issues and a battle with the U.S. Forest Service, which did not want to return the site. This dispute began after WWI and continued until 1970 when President Nixon signed legislation returning the lake to the Taos people. 3007. Griffin, Rayanne J. “Sacred Site Protection against a Backdrop of Religious Intolerance.” Tulsa Law Journal 31 (Winter 1995): 395–419. Lyng has hindered tribal efforts to protect sacred sites. A chronic lack of knowledge about tribal religious practices makes it difficult for a tribe or individual member to press litigation under RFRA or AIRFA. 3008. Grimm, Lydia T. “Sacred Lands and the Establishment Clause: Indian Religious Practices on Federal Lands.” Natural Resources & Environment 12 (Summer 1997): 19–24, 78. Discusses tribal use of cultural sites on public lands such as Devils Tower and significant related law opinions including Lyng and Bear Lodge. The Supreme Court found that the Free Exercise Clause did not set limits on government accommodation in Lyng. 3009. Hecht, Robert A. “Taos Pueblo and the Struggle for Blue Lake.” American Indian Culture and Research Journal 13, no. 1 (1989): 53–77. Narrative account of the legal and political effort Taos Pueblo undertook from 1951 until 1970 to regain the sacred Blue Lake. Key people and groups who played roles in the tribes’ eventual victory are highlighted, including Severino Martinez, Oliver LaFarge, the New Mexico Association of Indian Affairs, Corrine Locker, and Richard Nixon. 3010. Hooker, Ann M. “American Indian Sacred Sites on Federal Indian Lands: Resolving Conflicts between Religious Use and Multiple Use at El Malpais National Monument.” American Indian Law Review 19, no. 1 (1994): 133–58. While creating El Malpais National Monument, Congress endeavored to preserve tribal access to sacred sites. The legislation authorizes the Secretary of the Interior to close specific areas for ritual purposes upon the request of one of four tribes who have historic ties to that volcanic region near Grants, New Mexico. Non-Indian First Amendment rights are still in question.

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3011. Horse, Perry. “Sovereignty in Spiritual Perspective.” St. Thomas Law Review 13 (Fall 2000): 117–20. The concept of tribal sovereignty is not understood very well by many Americans, nor is the importance of sacred sites, which are key components of sovereignty. 3012. Kelley, Klara Bonsack and Harris Francis. Navajo Sacred Places. Bloomington: Indiana University Press, 1994. Explains the importance of landscapes and the stories connected to them in greater Navajo life and includes discussion of factors threatening these landscapes. It sheds light on tribal cultural resource protection issues and discusses those Navajo places in most need of protection. Jurisdictional and environmental issues, mineral development, and timber activities are also considered in relation to these places. 3013. Kelly, Dean M. “Impairment of the Religious Liberty of the Taos Pueblo by the United States Government, the Guest Editorial.” Journal of Church and State 9 (Spring 1967): 161–64. In 1926, Taos leaders made an agreement with the Pueblo Lands Board for 50,000 acres encompassing Blue Lake in the Carson National Forest in exchange for not pressing any claims against the city of Taos for tribal properties. The deal was made and the Pueblo got nothing except a special use permit that will expire. The Pueblo has a social relationship with this area, naming locations after animals and gaining access to specific clays for pottery and paint. This is a spiritual not an economic issue. 3014. Leach, James D. “A Shooting Range at Bear Butte: Reconciliation or Racism?” South Dakota Law Review 50, no. 2 (2005): 244–92. Despite the rhetoric of reconciliation, the planning and construction of a shooting range began at Bear Butte, a tribal sacred site. The range is an infringement on tribal religious freedom; gunfire and prayer do not mix. This may be a racially motivated action. 3015. Linge, George. “Ensuring the Full Freedom of Religion on Public Lands: Devils Tower and the Protection of Indian Sacred Sites.” Boston College Environmental Affairs Law Review 27 (Winter 2000): 307–39. Conflicting use claims have arisen at Devils Tower National Monument between multiple users, such as rock climbers and tribal members. The National Park Service issued a Final Climbing Management Plan in 1995 that led to litigation. This essay describes the issues facing tribal people and their use

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of Bear Butte in light of the recent free exercise court decisions.

regarding “the landscape as constituted by various sorts of cultural resources.”

3016. Lubick, George. “Sacred Mountains, Kachinas, and Skiers: The Controversy over the San Francisco Peaks.” In The American West: Essays in Honor of W. Eugene Hollon, edited by Ronald Lora, 133–54. Toledo, OH: University of Toledo, 1980. During the 1970s, Navajos, Hopis, and environmentalists allied in an attempt to stop expansion of the Arizona Snow Bowl ski resort. Lubick discusses the profound spiritual significance the peaks hold for both Hopis and Navajos, the historical development of the resort, and this political/legal battle. The tribes had difficulty explaining the significance of their beliefs to non-Indians.

3020. Miller, Char. “The Navajo–Hopi Relocation Act and the First Amendment Free Exercise Clause.” University of San Francisco Law Review 23 (Fall 1988): 97–121. Over 11,000 Navajos have been relocated since passage of the 1974 Navajo–Hopi Act. This displacement removes Navajos from the landscapes that are central to practicing their rituals. Despite the Supreme Court’s adverse Lyng decision, Navajos should demand that the government protect their free exercise rights and stop their relocation.

3017. McAndrew, Stephen. “Lyng v. Northwest: Closing the Door to Indian Religious Sites.” Southwestern University Law Review 18, no. 4 (1989): 603–29. The high court was presented with a problem of dealing with the role of sacred sites and tribal religious practices. It struck down the tribal claim that a Forest Service road would infringe on their religious practices. Tribal religious free exercise claims and those stemming from AIRFA were dealt a hard blow. 3018. McCool, Daniel. “Federal Indian Policy and the Sacred Mountains of the Papago Indians.” Journal of Ethnic Studies 9 (Fall 1981): 57–70. In 1917, President Wilson issued a new Executive Order modifying the boundaries of the tribe’s reservation cutting across the Baboquirvari Mountains. This range has an important role in tribal religion and outsiders wanted to use the mountains for various purposes that were not acceptable to the Native Americans. The tribe must secure legislation to protect their homeland. 3019. Miller, Bruce G. “Culture as Cultural Defense: An American Indian Sacred Site in Court.” American Indian Quarterly 22 (Winter/Spring 1998): 83–97. Demonstrates the difficulty of arguing for the protection of sacred sites in court based on cultural and spiritual constructions that are alien to judges and that invite counterarguments based on competing constructions. Miller considers it too difficult a task to prove the sacredness of a site as legal fact. The early 1990s case of Citizens to Preserve Nookachamps Valley, et al. v. Skagit County, et al., in which Skagits fought to stop the quarrying of a sacred rock, is used as a case study to demonstrate the author’s points. Miller proposes more effective ways to argue for these sites in court, including by

3021. Miller, Robert J. “Correcting Supreme Court ‘Errors’: American Indian Response to Lyng v. Northwest Cemetery Protective Association.” Environmental Law, 20, no. 4 (1990): 1037–62. If there was a case designed to pass the Supreme Court test for protecting tribal sites on public lands based on AIRFA, it was Lyng. Instead of following First Amendment protections, the Supreme Court interfered with the free expression of religion. The only hope for tribal America is for Congress to pass corrective legislation. 3022. Mills, Barbara J. and T. J. Ferguson. “Preservation and Research of Sacred Sites by the Zuni Indian Tribe.” Human Organization 57 (Spring 1998): 30–42. To protect on- and off-reservation sites that are crucial to rituals, the Zuni have employed diverse methods including historic preservation. They have been successful and in two cases land has been added to the reservation. 3023. Moore, Steven C. “Sacred Sites and Public Lands.” in Handbook of American Indian Religious Freedom, edited by Christopher Vecsey, 81–97. New York: Crossroads Publishing Company, 1991. A NARF staff attorney argues that AIRFA has failed to protect sacred sites in part because federal agencies, including the Forest Service, have been resistant. 3024. Neal-Post, Jody. “Sacred Sites and Federal Land Management: An Analysis of the Proposed Native American Free Exercise of Religion Act of 1993.” Natural Resources Journal 34 (Spring 1994): 443–78. Congress passed AIRFA in 1978 and failed to enact stronger amendments ten years later. A new bill was introduced in 1993 to counteract the Lyng decision. This bill is important because many interest groups are competing for access to federal lands, often at the expense of tribal use.

Sacred Sites Protection

3025. “A Non-Conflict Approach to the First Amendment Religion Clauses.” University of Pennsylvania Law Review 131 (April 1983): 1175–1208. The Navajos brought suit in Badoni v. Higginson to protect the formerly isolated Rainbow Bridge, arguing that this action violated their religious freedom under the Free Exercise Clause. To correct that error, the Tenth Circuit Court of Appeals argued, “would violate the establishment clause.” It may appear that the two clauses are in conflict, but this is only an illusion. 3026. Opacki, Michael. “Sacred Key: Historical Preservation May Be the Key That Will Allow Native Americans to Preserve and Protect Sacred Religious Site.” Journal of Law & Social Challenges 4 (Spring 2002): 117–43. Statutes attempting to protect tribal sacred sites have had difficultly in the courts because the judiciary “may never fully understand Native American religions and will not be able to preserve all of their . . . sites.” It is possible to use the National Historic Preservation Act to protect tribal sites. 3027. Patterson, Brian. “Preserving Oneida Culture.” St. Thomas Law Review 13 (Fall 2000): 121–26. Describes some of the Oneida Nation’s successes in protecting sacred sites. The tribe has more monetary resources than in the past to move forward with this work. Also, considers NAGPRA to be a window of opportunity to save sacred sites. 3028. Pavel, D. Michael, Gerald B. Miller, and Mary J. Pavel. “Too Long, Too Silent: The Threat to Cedar and the Sacred Ways of the Skokomish.” American Indian Culture and Research Journal 17, no. 3 (1993): 53–80. Discusses the spiritual, cultural, and material value of the Red Cedar to the Skokomish people. With Forest Service approval, and against the wishes of the tribe, logging operations were allowed to threaten the Cedar, and thus threaten the Skokomish. Because Supreme Court decisions, such as Lyng, often denied tribe’s their First Amendment rights, all tribes might be better served by relying on broad interpretations of treaty rights for such protections. 3029. Pemberton, Richard, Jr. “‘I Saw That It Was Holy’: The Black Hills and the Concept of Sacred Land.” Law & Inequality: A Journal of Theory and Practice 3 (October 1985): 287–342. Discusses failed Lakota efforts to regain physical control of the Black Hills. Some Lakotas stress their free exercise rights by claiming they must have meaningful access to the Black Hills, but courts have denied them their religious freedom claims.

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3030. Peters, Bill. “Of Courts, Clauses and Native American Culture: Lyng v. Northwest Indian Cemetery Protective Association.” Northern Illinois University Law Review, 9 (Spring 1989): 419–38. The Supreme Court decided that the construction of a road on public forest lands did not interfere with tribal religious practices. The Court took a hard stance against the First Amendment’s Free Exercise Clause and AIRFA. 3031. Petoskey, John. “Indians and the First Amendment.” In American Indian Policy in the Twentieth Century, edited by Vine Deloria, Jr., 221–38. Norman: University of Oklahoma Press, 1985. The First Amendment has not protected Native American sacred sites because courts ethnocentrically render judgments based on Judeo–Christianbased standards. Wisconsin v. Yoder and Sherbert v. Verner together were the basis for the decisions affecting Indian rights. Key losing Indian cases have been Sequoyah v. TVA, Badoni v. Higginson, Fools Crow v. Gullet, Inupiat Community v. United States, and Wilson v. Block. Free exercise standards as applied to Native practitioners should be based on their beliefs and needs. 3032. Pryor, Anita Clark and Gypsy Cowherd Bailey. “An Indian Site-Specific Claim Again Trips over Judeo–Christian Stumbling Blocks (Lyng v. Northwest Indian Cemetery Protective Association, 108 S.Ct. 1319 (1988).” Journal of Land Use & Environmental Law 5 (Summer 1989): 293–322. Criticizes AIRFA’s operation because it still allows colonialism to suppress even a site-specific location essential to tribal ritual practices. 3033. Rannow, Robin K. “Religion: The First Amendment and the American Indian Religious Freedom Act of 1978.” American Indian Law Review 10, no. 1 (1982): 151–66. Tribal Americans have not received the same protections as other peoples. In refusing to accept the Hopi argument that the San Francisco Peaks ski area infringed on tribal religious freedom, the federal district court revealed the disparity. 3034. Ray, S. Alan. “Lyng v. Northwest Indian Cemetery Association: Government Property Rights and the Free Exercise Clause.” Hastings Constitutional Law Quarterly 16 (Spring 1989): 483–511. The Supreme Court did not follow past precedents of a flexible interpretation of the Free Exercise Clause. There was no balancing test between the government’s interests and those of the tribe. 3035. Rievman, Joshua D. “Judicial Scrutiny of Native American Free Exercise Rights: Lyng and the Decline

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of the Yoder Doctrine.” Boston College Environmental Affairs Law Review 17, no. 1 (1989): 169–99. Instead of following the Yoder and Sherbert precedents, the Supreme Court’s minimum scrutiny test in Lyng places the federal government’s interests above those of tribal Americans and the Free Exercise Clause. 3036. Ripani, Michael N. “Native American Free Exercise Rights in Sacred Land: Buried Once Again.” American Indian Law Review 15, no. 2 (1990): 323–39. Tribal free exercise litigation has not faired well in federal courts. In Bowen v. Roy tribal plaintiffs claimed that providing a social security number violated their religious beliefs. The court struck down their argument because no state burden was imposed upon the plaintiffs. The court violated their free exercise rights. 3037. Schneebeck, Richard. “Constitutional Law— Religious Freedom and Public Land Use.” Land and Water Law Review 20, no. 1 (1985): 109–19. A ski developer planned to improve the operation on the San Francisco Peaks, but Navajos believe that the land is imbued with power, being the home of the Creator’s emissaries. Navajo and Hopi ritual leaders sued in Wilson v. Block in 1983, claiming the development would destroy the peaks’ powers and those other than human persons who lived there. The U.S. Court of Appeals, District of Columbia ruled that the Native Americans seeking to restrict use on public lands must demonstrate that the government’s plans will impair them from practicing their rituals and that no other site is available. This is a free exercise case and all the possible avenues were not explored. 3038. Seger, Michele L. “Unjustified Interference of American Indian Religious Rights; Lyng v. Northwest Cemetery Protective Association.” Creighton Law Review 22 (1988–1989): 313–31. The Free Exercise Clause was at stake in this case. The Supreme Court ruled “the Indians’ interests could not divest the government of its property rights.” The court failed to follow previous tests to interpret the Free Exercise Clause. 3039. Smith, Mary. “Wilson v. Block.” Natural Resources Journal 26, no. 1 (Winter 1986): 169–85. The case was a consolidation of Hopi and Navajo concerns stemming from their opposition to the expansion of Snow Bowl on San Francisco Peaks. Navajos gather plants there and Hopis believe that the Kachinas live there. The court ruled that the expansion did not stop them from practicing their culturally prescribed rites, a blow to AIRFA.

3040. Stambor, Howard. “Manifest Destiny and American Indian Religious Freedom: Sequoyah, Badoni, and the Drowned Gods.” American Indian Law Review 10, no. 1 (1982): 59–89. Discusses the Cherokee claim against the Tennessee Valley Authority for flooding burial grounds and sacred sites and the Navajo action against the U.S. at Rainbow Bridge. Both cases used AIRFA. The act proved illusory in aiding their defense. 3041. Suagee, Dean B. “American Indian Religious Freedom and Cultural Resources Management: Protecting Mother Earth’s Caretakers.” American Indian Law Review 10, no. 1 (1982): 1–58. The federal decision to protect tribal religious practices culminated in AIRFA, but tribal rights are still trampled by outsiders including the courts. Tribal religious practices should be protected as constitutional rights. 3042. Trope, Jack F. “Protecting Native American Sacred Sites and Religious Freedom.” Wicazo Sa Review 7 (Fall 1991): 53–55. Many important sites necessary for tribal religious practices and beliefs are found on federal lands. In Lyng v. Northwest Cemetery Protection Association, the Supreme Court’s First Amendment ruling found that there was no religious coercion. 3043. Unmack, Fred. “Equality under the First Amendment: Protecting Native American Religious Practices on Public Lands.” Public Land Law Review 8 (1987): 165–76. A Ninth Circuit Court of Appeals injunction banned the completion of a road in a national forest in Northern California that would violate the Free Exercise Clause of the First Amendment. This was the first case stemming from AIRFA. 3044. Walker, Deward E., Jr. “Protection of American Indian Sacred Geography.” In Handbook of American Indian Religious Freedom, edited by Christopher Vecsey, 100–115. New York: Crossroads Publishing Company, 1991. Explains the general meaning and importance of tribal sacred sites and lists thirty of them in the U.S. The American legal system must construct an alternative standard of integrity, as opposed to the current standard of centrality, to protect these sites. 3045. Ward, Robert Charles. “The Spirits Will Leave: Preventing the Desecration and Destruction of Native American Sacred Sites on Federal Land.” Ecology Law Quarterly 19, no. 4 (1992): 795–846. Sacred sites found on public lands are national treasures and are important to tribal people. There is no law requiring protection of these sites on public

Sacred Sites Protection

lands. There is a conflict in the First Amendment where one clause forbids creating a state religion while the Free Exercise Clause prohibits any restrictions on practicing religion. One avenue of protection is for Congress to enact sacred sites protection legislation. 3046. Welch, John R. “White Eyes’ Lies and the Battle for Dził Nchaa Si’an.” American Indian Quarterly 21 (Winter 1997): 75–109. Explains the Apache objections to the observatory built on their sacred Mount Graham, and contends that white stereotypes of Apaches as historically homogenous and hostile prejudiced decisions made during the observatory dispute. Welch, linking the study of history to modern legal issues, urges researchers, including Apaches, to create a more accurate and unbiased account of Apache history. 3047. Whatley, John T. “The Saga of Taos Pueblos: The Blue Lake Controversy.” Indian Historian 2 (Fall 1969): 22–28. For generations, the Taos leadership has fought to regain control of Blue Lake that became part of Carson National Forest. 3048. Williams, Robert. A., Jr. “Large Binocular Telescopes, Red Squirrel Piñatas, and Apache Sacred Mountains: Decolonizing Environmental Law in a Multicultural World.” West Virginia Law Review 96 (Summer 1994): 1133–64. Discusses the Mt. Graham conflict, where the University of Arizona wanted to construct a telescope project on public land. To decolonize environmental law requires identifying the legal practices that perpetuate injustices against tribal America. Outsiders did not understand the relationship between the San Carlos Apache and the mountain, which they consider to be a person of the non-human category. The red squirrel soon became the savior of the Apache because environmentalists had found an endangered species, but the Apache cultural ways were deemed less important. 3049. Winslow, Anastasia P. “Sacred Standards: Honoring the Establishment Clause in Protecting Native American Sacred Sites.” Arizona Law Review 38, no. 4 (1996): 1291–1343.

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Tribal sacred sites protection efforts have faltered because the Establishment Clause has been used to claim that such protections promote religion. Instead of looking at the modified Establishment Clause, the court should return to the traditional view of the clause, which would not be a barrier to sacred site protection. 3050. Woodall, James H. “American Indians and the First Amendment: Site-Specific Religion and Public Land Management.” Utah Law Review, no. 3 (1987): 673–702. The Ninth Circuit Court of Appeals ruled in favor of the tribal plaintiffs in Northwest Indian Cemetery Protection Association v. Peterson that the free exercise complaint was strong enough to stop the U.S. Forest Service’s logging plan on the Six Rivers National Forest. Despite these initial victories, the case law is inconsistent and the standard free exercise tests are difficult, if not impossible, to apply to tribal religions. 3051. Worthen, Kevin J. “Protecting the Sacred Sites of Indigenous People in U.S. Courts: Reconciling Native American Religion and the Right to Exclude.” St. Thomas Law Review 13 (Fall 2000): 239–58. The twenty-year Supreme Court “preoccupation with property rights” trend continues in civil cases as well as free exercise cases. Under this cloud, tribes should review treaties to find language that protects sacred sites, or at least allows them to put forth claims. Only when court attitudes change will judicial protection become a reality. 3052. Yablon, Marcia. “Property Rights and Sacred Sites: Federal Regulatory Responses to American Indian Religious Claims on Public Lands.” Yale Law Journal 113 (May 2004): 1623–62. Lyng demonstrated that the courts were not going to protect tribal sacred sites on public lands, leaving U.S. federal agencies to protect tribal sacred sites. This situation in turn forced the tribes to sue federal agencies and resulted in cases such as Muckleshoot Indian Tribe v. U.S. Forest Service wherein the court ordered that tribal input was necessary and that the court would enforce tribal consultation. Land management agencies have done a respectable job of working with tribes to protect sacred sites.

Chapter 32 Cultural Items and Ancestral Remains

3053. Adams, E. Charles. “Archaeology and the Native American: A Case at Hopi.” In Ethics and Values in Archaeology, edited by Ernestene L. Green, 235–42. New York: Free Press, 1984. The Walpi Project demonstrated positive relations between archaeologists and the Hopi tribe. It relied on open communication and recognized tribal ownership of artifacts.

3057. Arnet, Cory. “The Constitution and the Custody Law.” Indian Historian 3 (Spring 1970): 11–12. In 1909, the New York legislature passed the Custody of Wampum Act making the State University of New York keeper of the wampum belts. Arnet argues that the keeper must be an Onondaga and that the law is unconstitutional. Accompanying this essay is a defense of the New York law by the Committee on Anthropological Research in Museums and a rebuttal by Jeannette Henry stating that New York failed to keep its promise to the Onondaga.

3054. Afrasiabi, Peter R. “Property Rights in Ancient Human Skeletal Remains.” Southern California Law Review 70 (March 1997): 805–39. NAGPRA established a cultural affiliation standard which Richland Man might not meet. To minimize tension, international law and the doctrine of “common heritage of mankind” may be applied so science has some access and tribal people have reburial rights.

3058. Bakers, Brenda J., Tamara L. Varney, Richard G. Wilkinson, Lisa M. Anderson, and Maria A. Liston. “Repatriation and the Study of Human Remains.” In The Future of the Past: Archaeologists, Native Americans and Repatriation, edited by Tamara L. Bray, 69–83. New York: Garland Publishing, 2001. This group of physical anthropologists gave a statement at a NAGPRA Review Committee in 1994. Their views on repatriation have since changed as NAGPRA has prompted useful dialogue between them and Native communities. They assert that the study of human remains yields valuable results, but satisfactory compromises can be made with tribes.

3055. Amato, Christopher A. “Using the Courts to Enforce Repatriation Rights: A Case Study Under NAGPRA.” In Legal Perspectives on Cultural Resources, edited by Jennifer R. Richman and Marion P. Forsyth, 232–51. Walnut Creek, CA: AltaMira Press, 2004. Discusses the relations between New York and two bands of Seneca in the repatriation of tribal remains. The Gramly case provides an illustration of the importance of avoiding disputes with tribes over material culture because of their new-found power.

3059. Barreiro, José. “Return of the Wampum.” In Indian Roots of American Democracy, edited by José Barreiro, 135–48. Ithaca, NY: Akwe:kon Press, 1992. In 1907, John Boyd Thacher led a losing battle on behalf of the Onondagas in a New York State court to recover wampum belts. The judge argued that the confederacy no longer existed. In 1989, New York’s Museum of Albany returned the belts.

3056. Anstead, Harry Lee. “Humanity and Humaneness: Communities Coming Together on Issues of Human Relations to Achieve Social Justice for Indigenous People.” St. Thomas Law Review 10 (Fall 1997): 25–43. Defends current legislation protecting tribal remains.

3060. Beckerman, Ira. “Tribal Consultation in Pennsylvania: A Personal View from within the Pennsylvania Department of Transportation.” In Cross-Cultural

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Collaboration: Native Peoples and Archaeology in the Northeastern United States, edited by Jordan E. Kerber, 183–96. Lincoln: University of Nebraska Press, 2006. Federal regulations require agency consultation with federally recognized tribes when projects threaten historical and cultural sites. The Pennsylvania Division of the Federal Highway Administration and the Pennsylvania Department of Transportation have endeavored to comply and better relationships with tribes have resulted.

Indian Law 5 (May 1979): 13–21; cont. 5 (June 1979): 22–26. Describes Onondaga and Zuni efforts to obtain control of cultural items housed in museums. Control over tribal lands is the best way to prevent takings. Keeping such items in a museum is a violation of the Free Exercise Clause. Also discusses legislation and proposed bills that would protect tribal interests in museum holdings. In 1979, Congress considered the Archeological Resources Protection Act to add more teeth to the Antiquities Act of 1906.

3061. Bell, Catherine. “Aboriginal Claims to Cultural Property in Canada: A Comparative Legal Analysis of the Repatriation Debate.” American Indian Law Review 17, no. 2 (1992): 457–521. Comparative examination of U.S. and Canadian approaches. One tactic Canada employs is the use of aboriginal customary property rights, but this approach does not look favorable. Government, tribal, and museum cooperation is necessary to develop a workable system.

3066. Blair, Bowen. “Indian Rights: Native Americans versus American Museums—A Battle for Artifacts.” American Indian Law Review 7, no. 1 (1979): 125–54. Using the Zuni War Gods and the Iroquois wampum belts, the essay assesses the conflict between tribes wishing to reclaim their material culture items and the musems that are determined to keep these items. Copies of tribal resolutions on this issue are included.

3062. Bender, Paul. “1990 Arizona Repatriation Legislation.” Arizona State Law Journal 24 (Spring 1992): 391–418. Several months before Congress passed NAGPRA, the Arizona legislature enacted two laws. One mandates that the state return to tribes the human remains and cultural items found on state lands or controlled by state agencies. The other provides for repatriation of human remains or funerary items found on private lands. Arizona’s legislation provides that tribal governments will have broad powers to decide these issues. 3063. Bercaw, David G. “Requiem for Indiana Jones: Federal Law, Native Americans, and the Treasure Hunters.” Tulsa Law Journal 30 (Fall 1994): 213–42. An overview of common law and statutes that affect treasure hunting and tribal heritage. 3064. Bieder, Robert E. “The Representations of Indian Bodies in Nineteenth-Century American Anthropology.” In Repatriation Reader: Who Owns American Indian Remains?, edited by Devon A. Mihesuah, 19–36. Lincoln: University of Nebraska Press, 2000. Indian bodies were viewed as specimens for observation. A shift “from an emphasis on external characteristics linked to the environment to internal characteristics linked to heredity” allowed Americans “to place the fault of Indian deficiency on their biology and heredity.” 3065. Blair, Bowen. “American Indians vs. American Museums: A Matter of Religious Freedom.” American Indian Journal of the Institute for the Development of

3067. Blom, Deborah E., James B. Petersen, and Frederick Wiseman. “Ancient Burial Grounds on Monument Road: Abenaki and Archaeologists’ Efforts to Find a Solution in Vermont.” In Cross-Cultural Collaboration: Native Peoples and Archaeology in the Northeastern United States, edited by Jordan E. Kerber, 76–93. Lincoln: University of Nebraska Press, 2006. Without the federal recognition necessary to apply NAGPRA, the tribe has found other ways to repatriate ancestral remains. State fears that they will be granted federal recognition, however, has led to actions impeding this success. 3068. Bowman, Margaret B. “The Reburial of Native American Skeletal Remains: Approaches to the Resolution of a Conflict.” Harvard Environmental Law Review 13, no. 1 (1989): 147–208. Reburial of tribal skeletal remains pits tribal defenders of culture and ritual against Western science and state regulatory authority. Several approaches to settle reburial issues are proposed including negotiation and judicial remedies. 3069. Boyd, Thomas H. “The Native American Graves Protection and Repatriation Act: Reinstatement of Human Remains and Funerary Objects to Their Former State of Repose.” Gonzaga Law Review 27, no. 3 (1991–1992): 423–45. Questions concerning standing, financial obligations, and ethical issues continue to haunt NAGPRA. Museums must nevertheless comply with the act’s provisions. One potential solution is “to create enforceable agreements that will insure the proper and respectful treatment of these remains and objects.”

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3070. Boyd, Thomas H. “Disputes Regarding the Possession of Native American Religious and Cultural Objects and Human Remains: A Discussion of the Applicable Law and Proposed Legislation.” Missouri Law Review 55 (Fall 1990): 883–936. One may always go to court for a resolution, but a forum could better mediate disputes and provide for respectful and careful discussion and decisionmaking. 3071. Boyd, Thomas H. and Jonathan Haas. “The Native American Graves Protection and Repatriation Act: Prospects for New Partnerships between Museums and Native American Groups.” Arizona State Law Journal 24 (Spring 1992): 253–82. One advantage that museums possess is flexible collection policies that are less rigid than NAGPRA’s. This flexibility provides museums the opportunity to develop repatriation policies that comply with the law, while at the same time developing meaningful relations with tribal communities. 3072. Bray, Tamara L. ed. The Future of the Past: Archaeologists, Native Americans and Repatriation. New York: Garland Publishing, 2001. Essays by various authors stress the importance of repatriation legislation in compelling the archaeological profession to change its academic approach and relationship with tribes. 3073. Bray, Tamara and Thomas W. Killion. Reckoning with the Dead: The Larsen Bay Repatriation and the Smithsonian Institution. Washington, DC: Smithsonian Institution Press, 1995. In 1991, the Smithsonian returned human remains and cultural items excavated in the 1930s near Larsen Bay, Alaska. The authors study the years of conflict leading up to this positive action, comment on this case and its lessons, and consider the legal and political issues surrounding repatriation since NAGPRA, especially ways to establish cultural continuity. 3074. Brothers, Lynda L. “Preserving Indian Archaeological Sites through the California Environmental Quality Act.” Golden Gate University Law Review 6 (Fall/Spring 1975): 1–21. Courts and legislatures play a crucial role in protecting tribal archaeological sites. California’s Environmental Quality Act, with its accompanying environmental impact report requirement, is a crucial step in the protection process. 3075. Brown, John B., III and Paul A. Robinson. “‘The 368 Years’ War’: The Conditions of Discourse in Narragansett Country.” In Cross-Cultural Collaboration: Native Peoples and Archaeology in the Northeastern

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United States, edited by Jordan E. Kerber, 59–75. Lincoln: University of Nebraska Press, 2006. Discusses the contentious relationship between the Narragansett tribe and archaeologists in the Rhode Island State Historic Preservation Office since the late 1970s. 3076. Burr, Sherri L. “Indian Culture and Spirituality: Some Reflections on the Shaping and Sharing of Cultural Values.” St. Thomas Law Review 7 (Summer 1997): 473–77. It is best when the maker of tribal art shares the object with a recipient. Law follows technology of manufacture. Troubles arise when outsiders possess material culture items and do not return them because they were produced to have a function in tribal society. 3077. Carr, Robert S. and John Ricisak. “The Miami Circle: Beneath the Modern City.” St. Thomas Law Review 13 (Fall 2000): 225–28. The discovery of the Miami circle means that the city must be in the forefront of these archaeological site battles. 3078. Coffey, Wallace and Rebecca Tsosie. “Rethinking the Tribal Sovereignty Doctrine: Cultural Sovereignty and the Collective Future of Indian Nations.” Stanford Law and Policy Review 12 (Spring 2001): 191–221. The Supreme Court has limited tribal sovereignty through several decades of decisions. Yet there are opportunities to rebuild and strengthen tribal cultural sovereignty, through repatriation for example, and reclaiming tribal traditions. 3079. Conley, John M. and William M. O’Barr. “A Classic in Spite of Itself: The Cheyenne Way and Case Method in Legal Anthropology.” Law & Social Inquiry 29 (Winter 2004): 179–217. The Cheyenne Way is important for moving legal anthropology toward the case analysis approach. Sadly, neither Llewellyn nor Hoebel developed the anthropological case law approach. This book influenced Llewellyn to draft the Universal Commercial Code. 3080. Cooper, Robert L. “Constitutional Law: Preserving Native American Cultural and Archeological Artifacts.” American Indian Law Review 4, no. 1 (1976): 99–103. United States v. Diaz is a federal case involving the 1906 American Antiquities Act. The court debate and the regulations governing the 1906 act discuss cliff dwellers and the sale of pubic lands, but do not cover masks that were the focus of the case. Because of these problems, Congress must pass a new bill.

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3081. Crawford, Suzanne J. “(Re)Constructing Bodies: Semiotic Sovereignty and the Debate over Kennewick Man.” In Repatriation Reader: Who Owns American Indian Remains?, edited by Devon A. Mihesuah, 211–36. Lincoln: University of Nebraska Press, 2000. Examines the language used to describe this and other Native American remains and argues that “the creation of the fictitious ‘American Indian’ of nonNative American lore effectively cuts contemporary Native Americans off from their heritage, enabling the appropriation of Native identity by non-Natives.” 3082. Crowther, Wendy. “Native American Graves Protection and Repatriation Act: How Kennewick Man Uncovered the Problems in NAGPRA.” Journal of Land, Resources, & Environmental Law 20, no. 2 (2000): 269–90. NAGPRA is corrective legislation and the controversy over Kennewick man demonstrated that there are weaknesses in the legislation that need further correction. What to do with human remains is a policy issue that Congress should correct by taking power away from agencies, but if no controversy emerges in the future, nothing will change. 3083. Cusick, Steve. “Giving the Abenaki Dead Their Due: A Proposal to Protect Native American Burial Sites in Vermont.” Vermont Law Review 28 (Winter 2004): 467–90. Vermont law might, and should, permit an extension to include tribal burial sites. Politicians may oppose such an idea. 3084. Deloria, Vine, Jr. “Indians, Archaeologists, and the Future.” American Antiquity 57 (October 1992): 595–98. The Society for American Archaeology came to support tribal efforts to pass NAGPRA. Conflicts will continue as long as some archaeologists believe they have special privileges. 3085. De Meo, Antonia M. “More Effective Protection for Cultural Property through Regulation of Export.” American Indian Law Review 19, no. 1 (1994): 1–72. Protecting free markets is often at odds with restricting trade in Native cultural items. Each party’s goals have to be considered, thus making it difficult to protect tribal interests. 3086. D’Innocenzo, Pamela. “‘Not in My Backyard!’ Protecting Archaeological Sites on Private Lands.” American Indian Law Review 21, no. 1 (1997): 131–55. Newer legislation followed the 1906 Antiquity Act, but all these acts have had shortcomings. One of their most glaring omissions is the private land preservation of tribal sites. The Fifth and Fourteenth

Amendments provide individual property ownership guarantees that force states in the eastern U.S. to enact legislation that provides for artifact-specific protections, as well as protections of rock art, and human remains. Alabama has one of the best private site protections. 3087. Dongoske, Kurt E. “The Native American Graves Protection and Repatriation Act: A New Beginning, Not the End, for Osteological Analysis—A Hopi Perspective.” American Indian Quarterly 20 (Spring 1996): 287–307. NAGPRA has benefited osteological research by encouraging honest dialogue with tribes. Hopis have responded positively to NAGPRA and have worked with archaeologists and physical anthropologists to create a mutually beneficial research agenda. Researchers should find ways to make their analysis relevant to tribes. 3088. Dowell, Steven R. “Chaos in Kentucky: The Question of Standing to Recover the Fair Market Value of Indian Relics Found upon Private Property.” American Indian Law Review 15, no. 1 (1989): 207–25. Individuals began taking remains from a tribal gravesite in Kentucky. The court dismissed any criminal charges, then civil suits were filed and the judge ruled that his court did not have standing. The Kentucky litigation and the involved interests need examination. 3089. Downer, Alan S. and Alexandra Roberts. “The Navajo Experience with the Federal Historic Preservation Program.” Natural Resources & Environment 10 (Winter 1996): 39–42, 78–79. Before the passage of NHPA, the Navajo Nation began a reservation historic preservation program, the first tribe to do so. Despite the act’s positive aspects, tribes are warned that they might face more federal regulations. 3090. Downey, Roger. Riddle of the Bones: Politics, Science, Race, and the Story of Kennewick Man. New York: Springer, 2000. Journalistic account of the controversy surrounding and various perspectives on Kennewick Man. 3091. Doyel, David E. “Medicine Men, Ethnic Significance, and Cultural Resource Management.” American Antiquity 47 (October 1983): 634–42. In recent years, the significance of archaeological sites has taken on greater meaning. This is especially true as sites are nominated for the National Register of Historic Sites. 3092. Duffy, Patrick K. and Lois A. Lofgren. “Jurassic Farce: A Critical Analysis of the Government’s

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Seizure of ‘Sue™,’ a Sixty-Five Million-Year-Old Tyrannosaurus Rex Fossil.” South Dakota Law Review 39, no. 3 (1994): 478–528. Though no federal statute or regulation governs fossils, any scheme to create either should concern tribes and tribal landowners. Should the federal government protect fossils, the U.S. must take into account tribal concerns because in seizing Sue, the tribe has been denied rights to resources on allotted land.

3097. Echo-Hawk, Walter R. and Roger C. Echo-Hawk. “Repatriation, Reburial, and Religious Rights.” In Handbook of American Indian Religious Freedom, edited by Christopher Vecsey, 63–80. New York: Crossroads, 1991. Discusses Pawnee tribal efforts to reclaim and rebury ancestral remains. Repatriation is a religious issue and thus taking skeletal remains, and resisting their return, assaults Native American religious freedoms.

3093. Dumont, Clayton W., Jr. “The Politics of Scientific Objections to Repatriation.” Wicazo Sa Review 18 (Spring 2003): 109–28. Scientists claim to convey rational and objective truth while depicting Native arguments as irrational and superstitious. To uphold their repatriation rights, tribes must “learn to publicly insist on the wholly political qualities of scientific claims on our ancestors’ remains.”

3098. Evans, William L. “Who Owns the Contents of Ohio’s Ancient Graves?” Capital University Law Review 22 (Summer 1993): 711–47. Tribal people want the Ohio legislature to pass graves-protection legislation that includes their consultation. Despite their reasonable requests, some excavation is going to take place as Ohio institutions have a responsibility to protect the past for the future. The state should pass protective legislation.

3094. Dussias, Allison M. “Kennewick Man, Kinship, and the ‘Dying Race’: The Ninth Circuit’s Assimilationist Assault on the Native American Graves Protection and Repatriation Act.” Nebraska Law Review 84, no. 1 (2005): 55–161. The discovery of skeletal remains on the Columbia River in an area under the authority of the Army Corp of Engineers sparked a legal battle over who had the right to examine these remains. The Court of Appeals ruled in favor of science and against the tribal litigants who wanted to rebury the remains.

3099. Fadden, Stephen. “Indian Burial Sites.” Indian Studies Quarterly 2 (Winter 1985): 4–7. Increasing tribal dissent and changing attitudes in many academic disciplines and museums has fostered dialogue between both communities over the handling of human remains. The root of this battle is the tribal belief that human burials must remain undisturbed or else trauma will result. In New York, the issue is not one of protection, but of making regulatory decisions.

3095. Dussias, Allison M. “Science, Sovereignty, and the Sacred Text: Paleontological Resources and Native American Rights.” Maryland Law Review 55, no. 1 (1996): 84–159. The removal of a tyrannosaurus rex from the Cheyenne River Reservation in South Dakota without tribal knowledge led to four law suits. Tribal officials should have authority over paleontogical activities on the reservation, but based on the recent court cases, tribal sovereignty is uncertain at best. When the Eighth Circuit Court of Appeals finally decided the ownership of the bones, they followed western case law and did not consider the cultural ramifications at hand. 3096. Echo-Hawk, Roger C. and Walter R. Echo-Hawk. Battlefields and Burial Grounds: The Indian Struggle to Protect Ancestral Graves in the United States. Minneapolis, MN: Lerner, 1994. Brief history of Pawnee repatriation efforts with accompanying photographs. “In the end, it took attorney general orders and opinions, negotiated agreements, several pieces of state legislation, court cases, administrative proceedings, and two acts of Congress to win justice for the Pawnee cause.”

3100. Farr, William E. “Troubled Bundles, Troubled Blackfeet: The Travail of Cultural and Religious Renewal.” Montana: Magazine of Western History 43 (Autumn 1993): 2–17. Discusses the sale of the Robert Scriver’s collection of Blackfeet cultural material to the Provincial Museum in Edmonton, Alberta. Despite the emotional anguish this transaction created, the most important thing is not the bundles per se, but the continual preservation of the ritual history. 3101. Ferguson, T. J. “Archaeological Ethics and Values in a Tribal Cultural Resource Management Program at the Pueblo of Zuni.” In Ethics and Values in Archaeology, edited by Ernestene L. Green, 224–35. New York: Free Press, 1984. The Zuni Archaeology Program is guided ethically by tribal values and beliefs. These ethics, including the excavation of human remains only in cases where development affects graves, have influenced nonIndian archaeologists working with the tribe. 3102. Ferguson, T. J., Roger Anyon, and Edmund J. Ladd. “Repatriation at the Pueblo of Zuni: Diverse Solutions to Complex Problems.” American Indian Quarterly 20 (Spring 1996): 251–72.

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Offers Zuni as a model for studying the implementation of repatriation, demonstrating how Zuni repatriation efforts in the 1970s influenced the outcome of NAGPRA, and how the tribe approaches the issue in a complex, case-by-case, manner. The authors urge museums to resolve repatriation issues on a case-by-case basis, and urge Congress to appropriate the necessary funds. 3103. Fine-Dare, Kathleen S. Grave Injustice: The American Indian Repatriation Movement and NAGPRA. Lincoln: University of Nebraska Press. 2002. A legislative, ethnological, and political analysis of the repatriation of tribal material cultural and the congressional passage of NAGPRA. One of the most important sections is the isolation of eleven elemental problems the act faces including the fact that it is a federal law and only applies to institutions that receive federal funding. 3104. Flood, Maura. “Kennewick Man: or ‘Ancient One?’—A Matter of Interpretation.” Montana Law Review 63 (Winter 2002): 39–90. The discovery of Kennewick Man initiated a battle between scientists and tribes over NAGPRA that culminated in Bonnischsen v. U.S. in which the court ruled in favor of the tribes. 3105. Fox, Michael J. “Repatriation: Mutual Benefits for Everyone.” Arizona State Law Journal 24 (Spring 1992): 7–9. Following the passage of NAGPRA, a Panel for a National Dialogue on Museum/Native American Relations was created and communications initiated between the various parties. The act brought people together in a positive way by reviving culture, settling disputes, and forcing museums to explain the value of their collections. 3106. Garza, Christina E. and Shirley Powell. “Ethics and the Past: Reburial and Repatriation in American Archaeology.” In The Future of the Past: Archaeologists, Native Americans and Repatriation, edited by Tamara L. Bray, 37–56. New York: Garland Publishing, 2001. Examines archaeology’s professional ethics and the historical background of the present controversy over repatriation and reburial. Repatriation legislation did not end the controversy, but compromises are being reached and Native voices are now involved. 3107. Goldberg, Carole. “Acknowledging the Repatriation Claims of Unacknowledged California Tribes.” American Indian Culture and Research Journal 21, no. 3 (1997): 183–90.

Because unrecognized tribes are still eligible for certain federal services, Goldberg argues, the wording of NAGPRA leaves a legal opening for unrecognized tribes to benefit from that act. California laws may also offer unrecognized tribes repatriation rights. Those tribes, therefore, should push the limits of such laws. 3108. Goldstein, Lynne and Keith Kintigh. “Ethics and the Reburial Controversy.” In Repatriation Reader: Who Owns American Indian Remains?, edited by Devon A. Mihesuah, 180–89. Lincoln: University of Nebraska Press, 2000. The conflict has divided the archaeological profession but common ground can be found. The profession must change the way it does business without compromising its professional responsibilities. Fair and open negotiations are vital. The easiest routes are not always the most ethical ones. 3109. Goodby, Robert G. “Working with the Abenaki in New Hampshire: The Education of an Archaeologist.” In Cross-Cultural Collaboration: Native Peoples and Archaeology in the Northeastern United States, edited by Jordan E. Kerber, 94–111. Lincoln: University of Nebraska Press, 2006. Considers the challenges non-federally recognized tribes face in seeking repatriation. An informal system of consultation and cooperation with the New Hampshire state archaeologist and law enforcement authorities has been somewhat successful. 3110. Graber, Dorothy. “An Indian Artifact Collection in Court: Whose Family Heirlooms?” Wicazo Sa Review 14 (Spring 1999): 177–96. Focuses on the Burns-Paiute Tribe v. Fred E. Moore case in which the tribe is attempting to recover looted artifacts. Artifact collecting values tribal possessions while devaluing tribal people, and contributes to non-Indian hegemony over Native Americans. The case also demonstrates tribal resilience and desire to fight for sovereign rights. 3111. Griggs, John W. “The Michigan Aboriginal Records and Antiquities Act: A Constitutional Question.” Michigan Bar Journal 65 (May 1986): 432–37. In 1929, the Michigan legislature assumed control over all Native antiquities, but constitutional questions remained. 3112. Grinde, Donald A., Jr. “The Reburial of American Indian Remains and Funerary Objects.” Northest Indian Quarterly 8 (Summer 1991): 35–38. Describes reasons why tribal communities oppose excavating human remains. Those who support this work do so in the name of science. For tribal people the deep issue is religious.

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3113. Gulliford, Andrew. Sacred Objects and Sacred Places: Preserving Tribal Traditions. Boulder: University Press of Colorado, 2000. Stresses the resilience of Native cultures and outlines preservation efforts to protect sacred sites, human remains, objects, traditions, and languages. Important federal legislation is discussed, including AIRFA and NAGPRA, tribal preservation offices are described, and chapters include Native commentaries and photographs. 3114. Haas, Jonathon. “Sacred under the Law: Repatriation and Religion under the Native American Graves and Repatriation Act (NAGPRA).” In The Future of the Past: Archaeologists, Native Americans and Repatriation, edited by Tamara L. Bray, 117–26. New York: Garland Publishing, 2001. Describes the compromises that determined the final wording of the act relative to sacred objects. NAGPRA has been successful in many respects, but legislating the meaning of “sacred” has proven problematic given tribal diversity. 3115. Harding, Sarah. “Culture, Commodification, and Native American Patrimony.” In Rethinking Commodificiation: Cases and Readings in Law and Culture, edited by Martha M. Ertman and Joan C. Williams, 137–55. New York: New York University Press, 2005. Tribal people involved in repatriation are active players in regaining possession of their material culture, and doing so is crucial to maintaining their cultural identity. 3116. Harjo, Suzan Shown. “Native Peoples’ Cultural and Human Rights: An Unfinished Agenda.” Arizona State Law Journal 24 (Spring 1992): 321–28. Considers the importance of human rights in the context of NAGPRA and questions whether the intent of that law will be fulfilled. 3117. Harris, David J. “Respect for the Living and Respect for the Dead: Return of Indian and Other Native American Burial Remains.” Washington University Journal of Urban and Contemporary Law 39 (Spring 1991): 195–224. Discusses the current state of repatriation and reburial legislation in Congress and in several states. Despite this growing concern, there are two issues: determining cultural affiliation of remains, and what should be done to “unaffiliated” remains. All parties should move toward resolving the affiliation issue and establish a committee to determine the proper burial for the unidentified remains. 3118. Hibbert, Michelle. “Galileos or Grave Robbers? Science, the Native American Graves Protection and Repa-

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triation Act, and the First Amendment.” American Indian Law Review 23, no. 2 (1998–1999): 425–58. When a conflict arises, NAGPRA can withstand a First Amendment challenge from science because scientific inquiry can be restrained. The debate between scientists and Native Americans will continue, but the playing field is now level. 3119. Higginbotham, C. Dean. “Native Americans versus Archaeologists: The Legal Issues.” American Indian Law Review 10, no. 1 (1982): 91–115. There is a conflict between tribal Americans who do not want their sacred items removed from the ground and archaeologists who believe they are working for the highest good of man. In this battle, both groups have legal rights. 3120. Hill, Richard W., Sr. “Making a Final Resting Place Final: A History of the Repatriation Experience of the Haudenosaunee.” In Cross-Cultural Collaboration: Native Peoples and Archaeology in the Northeastern United States, edited by Jordan E. Kerber, 3–17. Lincoln: University of Nebraska Press, 2006 Describes the Haudenosaunee Standing Committee on Burial Rules and Regulations’ work and the problems faced and successes gained through the NAGPRA process. The Haudenosaunee have had access to archaeological records and engaged in consultations that have led them to discover more about their ancestors, but reviewing burial desecration reports is distasteful. 3121. Hill, Richard W., Sr. “Regenerating Identity: Repatriation and the Indian Frame of Mind.” In The Future of the Past: Archaeologists, Native Americans and Repatriation, edited by Tamara L. Bray, 127–37. New York: Garland Publishing, 2001. Discusses the importance of wampum and Iroquois efforts to have museums repatriate items in Canada and the U.S. 3122. Hinsley, Curtis M., Jr. “Digging for Identity: Reflections on the Cultural Background of Collecting.” In Repatriation Reader: Who Owns American Indian Remains?, edited by Devon A. Mihesuah, 37–55. Lincoln: University of Nebraska Press, 2000. A “democratic archaeology” was intertwined with a “founding American myth” during the nineteenth century and involved excavation of moundbuilder sites. 3123. Hutt, Sherry. “Illegal Trafficking in Native American Human Remains and Cultural Items: A New Protection Tool.” Arizona State Law Journal 24 (Spring 1992): 135–50. Beginning with the Antiquities Act of 1906, which was vague in defining wrongdoing, and moving toward the stronger Archaeological Resources Protection Act of 1979, criminal sanctions have been in

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place against grave robbing. Tribal people were critical of the 1979 act for calling their cultural items archaeological resources. NAGPRA defines Congress’s intent to repatriate items and to protect them from improper and illegal marketing. 3124. Hutt, Sherry and C. Timothy McKeown. “Controls of Cultural Property as Human Rights Laws.” Arizona State Law Journal 31 (Summer 1999): 365–89. Over a century ago, the Onondaga brought suit against New York for the return of wampum belts. Continual destruction of tribal burial sites spawned state laws and finally NAGPRA. This is an important period of human rights activity for tribal America where they are reclaiming their heritage. 3125. Inouye, Daniel K. “Repatriation: Forging New Relationships.” Arizona State Law Journal 24 (Spring 1992): 1–3. The senator praises the workings of NAGPRA. 3126. Jemison, G. Peter. “The Journey, Tribal Sovereignty: Back to the Future.” St. Thomas Law Review 7 (Summer 1997): 433–40. Jemison, a member of the Seneca Tribe of New York, worked on tribal repatriation issues. The tribes seek the return of all-important objects, including masks, wampum belts, and human remains 3127. Jemison, G. Peter. “Who Owns the Past?” In Native Americans and Archaeologists: Stepping Stones to Common Ground, edited by Nina Swidler, Kurt E. Dongoske, Roger Anyon, and Alan S. Downer, 57–63. Walnut Creek, CA: AltaMira Press, 1997. Summarizes a 1989 symposium held prior to NAGPRA becoming law that included Native American and museum personnel as participants. 3128. Johansen, Bruce E. “Kennewick Man: The Facts, the Fantasies, and the Stakes.” In Enduring Legacies, Native American Treaties and Contemporary Controversies, by Bruce E. Johansen, 283–303. Westport, CT: Praeger, 2004. In 2002, a U.S. District Court Judge decided in favor of the scientists wishing to study the remains, and against the plaintiff tribes. The key remaining question is “how far back in time the legality of possession reaches.” 3129. Johnson, Elden. “Professional Responsibilities and the American Indian.” American Antiquity 38 (April 1973): 129–30. The Society for American Archaeology published guidelines in 1961 establishing standards. The passage of time brought Native populations into the debate. Johnson shares many concerns with tribal people, including the illegal sale of material culture.

3130. Johnson, Ralph W. and Sharon I. Hawnsly, “Fifth Amendment Takings Implications of the 1990 Native American Graves Protection and Repatriation Act.” Arizona State Law Journal 24 (Spring 1992): 151–73. When a repatriated item is taken from a non-tribal member, has a Fifth Amendment violation occurred? In presenting this hypothetical situation, the authors stress the importance of tribal governments enacting ordinances for their respective reservations, using NAGPRA and tribal and federal common law, to protect and control all items found on a reservation. 3131. Kelly, Michael J. “A Skeleton in the Closet: The Discovery of “Kennewick Man” Crystallizes the Debate over Federal Law Governing the Disposal of Ancient Human Remains.” University of Hawai’i Law Review 21 (Summer 1999): 41–72. The discovery of Kennewick Man opened the conflict of interest door between tribal communities wanting to rebury skeletal remains and Western scholars who want to study these remains. This struggle is worldwide as developing nations struggle to preserve their past. U.S. legislation is flawed in regards to recent remains and falls short when the remains are culturally unidentifiable. 3132. Kidwell, Clara Sue. “Repatriating the Past: Recreating Indian History.” In Native American Spirituality: A Critical Reader, edited by Lee Irwin, 195–204. Lincoln: University of Nebraska Press, 2000. Repatriation legislation has asserted tribal sovereignty and, ironically, codified into law the importance of Native property and personal possession concepts that non-Indians had long tried to destroy through assimilation. Ethnohistorians and other scholars will find opportunities to learn more about Native communities as they collaborate with them in efforts to prove cultural affiliation. 3133. Killion, Thomas W. “On the Course of Repatriation: Process, Practice, and Progress at the National Museum of Natural History.” In The Future of the Past: Archaeologists, Native Americans and Repatriation, edited by Tamara L. Bray, 149–65. New York: Garland Publishing, 2001. Evaluates the repatriation process to date since passage of the National Museum of the American Indian Act and NAGPRA, and points to successes, but also the continuing dissatisfaction and confusion of all involved parties. Unresolved questions remain but the process is becoming more normalized in museums. 3134. King, Thomas S. “Archaeological Law and the American Indian.” Indian Historian 5 (Fall 1972): 31–35.

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Overview of archaeological law arguing that for the laws to work, Native Americans must put pressure on the agencies and personnel who administer them. 3135. Klessert, Anthony L. and Shirley Powell. “A Perspective on Ethics and the Reburial Controversy.” In Repatriation Reader: Who Owns American Indian Remains?, edited by Devon A. Mihesuah, 200–210. Lincoln: University of Nebraska Press, 2000. Archaeologists “have no inherent right to dig or study human remains” and “our obligations . . . go well beyond the human tissue lying in our hands, to the entire living system it represents.” 3136. Kosslak, Renee M. “The Native American Graves Protection and Repatriation Act: The Death Knell for Scientific Study?” American Indian Law Review 24, no. 1 (1999–2000): 129–51. Kennewick Man’s discovery highlights the conflict between American Indians and researchers over NAGPRA, and exposes a key weakness in the act— how to deal with remains when clear cultural ownership cannot be determined. Compromise should be sought, perhaps relying on balancing tests weighing tribal and scientific interests. Some scientific study is necessary to establish biological links between remains and the appropriate modern communities. 3137. Lacy, David M. and Donna Roberts Moody. “Green Mountain Stewardship: One Landscape, Multiple Histories.” In Cross-Cultural Collaboration: Native Peoples and Archaeology in the Northeastern United States, edited by Jordan E. Kerber, 150–64. Lincoln: University of Nebraska Press, 2006. Considers relations between the Missisquoi Abenaki and Green Mountain National Forest regarding repatriation and site protection. Successful collaboration has proven possible. 3138. Ladd, Edmund J. “A Zuni Perspective on Repatriation.” In The Future of the Past: Archaeologists, Native Americans and Repatriation, edited by Tamara L. Bray, 107–15. New York: Garland Publishing, 2001. Zuni leaders and tribal policy favor protecting their sacred materials by requesting the return of illegally removed items, appropriate curatorial treatment of items housed in museums, and the sensitive treatment and display of those items. They have been successful in negotiating on a case-by-case basis and have developed a classification scheme for these items to facilitate this process. 3139. Landau, Patricia M. and D. Gentry Steele. “Why Anthropologists Study Human Remains.” In Repatriation Reader: Who Owns American Indian Remains?,

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edited by Devon A. Mihesuah, 74–94. Lincoln: University of Nebraska Press, 2000. The authors recognize NAGPRA’s utility and differences between Indian and non-Indian views on studying human remains, but they explain why study of Native skeletal remains is a necessary pursuit. Physical anthropologists feel their own sense of responsibility toward these remains. Balancing their concerns with those of Native peoples is necessary and communication is vital. 3140. Lannan, Robert W. “Anthropology and Restless Spirits: The Native American Graves Protection and Repatriation Act, and the Unresolved Issues of Prehistoric Human Remains.” Harvard Environmental Law Review 22, no. 2 (1998): 369–439. When human remains were found on the Columbia River, a conflict between the local tribal and scientific communities ensued, culminating in Bonnischsen v. United States dealing with the right to either study Kennewick Man for science or ensure reburial under NAGPRA. When the chance is given to study skeletal remains it should be done with dignity. 3141. Lazerwitz, David J. “Bones of Contention: The Regulation of Paleontological Resources on the Federal Public Lands.” Indiana Law Journal 69 (Spring 1994): 601–36. After the discovery and removal of “Sue” from the Cheyenne River Sioux Reservation, the federal government demonstrated more concern for the future of fossils on pubic lands. This overview discusses the policies and laws permitting such a process and suggests recommendations for the future. 3142. Levinson, Pamela. “Will the Circle Be Unbroken: The Miami Circle Discovery and Its Significance for Urban Evolution and Protection of Indigenous Culture.” St. Thomas Law Review 13 (Fall 2000): 283–340. This archaeological discovery could have turned into another embarrassment for the city of Miami, but events unfolded that enabled a positive outcome. Now the task is to preserve the site for the future. 3143. Livesay, Thomas A. “The Impact of the Federal Repatriation Act on State-Operated Museums.” Arizona State Law Journal 24 (Spring 1992): 293–301. The director of the Museum of New Mexico discusses his experiences with NAGPRA. The Zuni believed that since the items have been removed from the community they were now desecrated and it would serve no purpose to return them. They did return the forged masks to the Zuni who wanted to use them as teaching tools. Issues still remain after repatriation such as where to place the items and whether they will resurface for sale.

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3144. Lovis, William A., Keith W. Kintigh, Vincas P. Steponaitis, and Lynne G. Goldstein. “Archaeological Perspectives on the NAGPRA: Underlying Principles, Legislative History, and Current Issues.” In Legal Perspectives on Cultural Resources, edited by Jennifer R. Richman and Marion P. Forsyth, 165–84. Walnut Creek, CA: AltaMira Press, 2004. The Society for American Archaeology became the voice for North American archaeologists in conducting repatriation under NAGPRA. The society developed guidelines to strike a balance between science and cultural concerns and its first principle is that science and native views are both legitimate. The authors support the SAA’s position on NAGPRA noting that many of their positions were incorporated in the law. 3145. McCain, Senator John. “Repatriation: Balancing Interests.” Arizona State Law Journal 24 (Spring 1992): 5–6. Is hopeful that NAGPRA will open a positive discussion between the affected parties. 3146. McGuire, Randall H. “Archeology and the First Americans.” American Anthropologist 94, no. 4 (1992): 816–36. Archeologists for the last century have assumed the position that tribal people are part of the American nation politic and their past is part of the national heritage. Archeologists need “to reunite their object of study, the Indian past, with its descendants.” They must ask tribal people to define and address their needs. 3147. McKeown, C. Timothy and Sherry Hutt. “In the Smaller Scope of Conscience: The Native American Graves Protection & Repatriation Act Twelve Years Later.” UCLA Journal of Environmental Law and Policy 21, no. 2 (2002–2003): 153–212. Discusses the procedures for initiating requests to obtain tribal objects from depositories. Over the years, stiffer punishments have been passed to put more force into the act. 3148. McLaughlin, Robert H. “The Antiquities Act of 1906: Politics and the Framing of an American Anthropology & Archaeology.” Oklahoma City University Law Review 23 (Spring and Summer 1998): 61–91. Over the past years, tribal leaders have been negotiating with archaeologists and this has created “a highly politicized phase” in the academic discipline. Despite the recent negotiations, the discipline has been involved in a long legal discussion following the passage of federal laws beginning with the 1906 Antiquities Act.

3149. McLaughlin, Robert H. “NAGPRA, Dialogue, and the Politics of Historical Authority.” In Legal Perspectives on Cultural Resources, edited by Jennifer R. Richman and Marion P. Forsyth, 185–201. Walnut Creek, CA: AltaMira Press, 2004. NAGPRA shifted the discussion of pre-history from the archaeologists to a wider group that includes museums, federal agencies, anthropologists, and tribal members. The law created a dialogue between diverse groups. 3150. McLaughlin, Robert H. “The Native American Graves Protection and Repatriation Act: Unresolved Issues between Material Culture and Legal Definitions.” University of Chicago Law School Roundtable 3, no. 2 (1996): 767–90. Discusses the difficulty encountered in determining whether pieces of tribal material culture are sacred and fall under NAGPRA. 3151. McManamon, Francis P. and Larry V. Nordby. “Implementing the Native American Graves Protection and Repatriation Act.” Arizona State Law Journal 24 (Spring 1992): 217–52. NAGPRA requires tribal nations and Native Hawaiian organizations, any museum that receives federal monies, and federal agencies to create a rules process promoting collaborative efforts among affected groups in the development of meaningful and non-hostile solutions to repatriation. 3152. Mallouf, Robert J. “An Unraveling Rope: The Looting of America’s Past.” American Indian Quarterly 20 (Spring 1996): 197–208. Native American site looting “is clearly the single most destructive force to our nation’s historical legacy.” Includes a brief discussion of NAGPRA and newer state laws intended to protect human burials. 3153. Malmsheimer, Robert W. and Alisa S. H. Hilfinger. “In Search of a Paleontological Resource Policy for Federal Lands.” Natural Resources Journal 43 (Spring 2003): 587–614. The taking of “Sue” from the Cheyenne River Reservation in South Dakota has stimulated interest in examining the law and protection of fossils on public lands. The authors offer an overview of the issue and related laws. 3154. Marsh, Gene A. “Walking the Spirit Trail: Repatriation and Protection of Native American Remains and Sacred Cultural Items.” Arizona State Law Journal 24 (Spring 1992): 79–133. Examines the conflict that NAGPRA has spawned. Recent national and state legislation reveals that the majority of Americans do not want looting and improper display of tribal cultural items to continue.

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Tribal people should be seen as individuals, not curios. 3155. Martin, Kallen. “The Beginning of Respect: The U.S. Repatriation Law.” Native Americas 14 (Fall 1997): 24–29. NAGPRA opens the door for tribal keepers of their cultural knowledge to inspect items held in museums that obtain federal funding. This is the first step in returning items to the tribal communities. 3156. Meighan, Clement W. “Some Scholars’ Views on Reburial.” In Repatriation Reader: Who Owns American Indian Remains?, edited by Devon A. Mihesuah, 190–99. Lincoln: University of Nebraska Press, 2000. Goldstein and Kintigh’s argument, that archaeologists must change the way they do business is wrong. The basic rules of “scholarly obligations to one’s data” should not change. 3157. Merenstein, Adele. “The Zuni Quest for Repatriation of the War Gods: An Alternative Basis for Claim.” American Indian Law Review 17, no. 2 (1992): 589–637. Zunis can look to international law to secure the return of the War Gods that they claim were conveyed improperly. 3158. Merrill, William L., Edmund J. Ladd, and T. J. Ferguson. “The Return of the Ahayu:da: Lessons for Repatriation from Zuni Pueblo and the Smithsonian Institution.” Current Anthroplogy 34 (December 1993): 523–67. After nine years of negotiation, the Smithsonian returned two war gods to the Zuni. 3159. Mihesuah, Devon A. “American Indians, Anthropologists, Pothunters, and Repatriation Ethical, Religious, and Political Differences.” In Repatriation Reader: Who Owns American Indian Remains?, edited by Devon A. Mihesuah, 95–105. Lincoln: University of Nebraska Press, 2000. Native Americans have not been presented convincing evidence of how studies of their ancestors’ remains help them today, and there is a doublestandard as to how Indian and non-Indian remains are treated. Monetary issues are involved. 3160. Mihesuah, Devon A., ed. Repatriation Reader: Who Owns American Indian Remains?, Lincoln: University of Nebraska Press, 2000. In the introduction to this edited volume, Mihesuah lists twelve different groups involved in this cross-cultural conflict. 3161. Moore, Stephen. “Federal Indian Burial Policy: Historical Anachronism or Contemporary Reality?” In

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Conflict in the Archaeology of Living Traditions, edited by Robert Layton, 201–10. New York: Routledge, 1994; first published by Unwin Hyman Ltd., 1989. Federal law and policy considers Native human remains as archaeological items and places science over Native religions and values. Relevant legislation is discussed, including the 1906 Antiquities Act and the Archaeological Resources Protection Act of 1979. 3162. Murphy, Mary Lynn. “Assessing NAGPRA: An Analysis of Its Success from a Historical Perspective.” Seton Hall Legislative Journal 25, no. 2 (2001): 499–523. Initially, NAGPRA was called a victory as the collective voices of tribal Americans sought change in how culturally sensitive materials were handled, but the drawback is that the burden of proof falls on tribes to push for enforcement of the act. On the positive side, since Congress passed this legislation as a demonstrated need to protect cultural items, Congress must treat tribes as sovereigns and give them funding to follow the law’s intent and even allow tribes to administer the law. 3163. Painter-Thorne, Suzianne D. “Contested Objects, Contested Meanings: Native American Graves Protection Laws and the Interpretation of Culture.” University of California Davis Law Review 35 (June 2002): 1261–1303. Since state laws provided little protection of tribal physical cultural remains and often excluded tribal members, Congress passed the National Museum of the American Indian Act (1989), which only pertained to the Smithsonian’s holdings. To expand this law, Congress enacted NAGPRA. 3164. Palmer, Sarah, Charie Shanteau, and Deborah Osborne. “Strategies for Addressing Native Traditional Cultural Properties.” Natural Resources & Environment 20 (Fall 2005): 45–50. Discusses the important laws that pertain to tribal cultural resources management such as the Archaeological Resources Protection Act, the National Historic Preservation Act, the American Religious Freedom Act, the Native American Graves Protection and Repatiation Act and Executive Order 13,007 (Indian Sacred Sites). There should be collaboration and direct negotiation with all authorities to insure that all tribal cultural resources are protected. 3165. Pensley, D. S. “The Native American Graves Protection and Repatriation Act (1990): Where the Native Voice Is Missing.” Wicazo Sa Review 20 (Fall 2005): 37–64. NAGPRA was a step forward in addressing an emotional conflict over funerary objects, human

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remains, and ceremonial items. But the law did not include a strong Native voice in specific sections where they were needed. 3166. Peregoy, Robert M. “The Legal Basis, Legislative History, and Implementation of Nebraska’s Landmark Reburial Decision.” Arizona State Law Journal 24 (Spring 1992): 329–89. In 1989, the Nebraska state legislature passed the first general repatriation act in the nation. The law required state organizations or sponsored programs to identify all human remains for reburial within one year. Whether the law works depends on the willingness of the involved state organization. 3167. Peregoy, Robert M. “Nebraska’s Landmark Repatriation Law: A Study of Cross-Cultural Conflict and Resolution.” American Indian Culture and Research Journal 16, no. 2 (1992): 139–95. Provides details on the nation’s first general statute that required the repatriation of human remains and burial items to tribes. Peregoy also explains the legal foundations in favor of repatriation, the ramifications of the law in regards to conflict between the Pawnee tribe of Oklahoma and the Nebraska State Historical Society, and that conflict’s role in enlightening federal policy-makers about the need for federal legislation. 3168. Peters, Ramona L. “Consulting with the Bone Keepers: NAGPRA Consultations with Archaeological Monitoring in the Wampanoag Territory.” In CrossCultural Collaboration: Native Peoples and Archaeology in the Northeastern United States, edited by Jordan E. Kerber, 32–43. Lincoln: University of Nebraska Press, 2006. Describes experiences with the Wampanoag Confederation Repatriation Project. Repatriation and reinterment are means to demonstrate thanksgiving to the ancestors and this notion should guide the consultation process. 3169. Peterson, John E., II. “Dance of the Dead: A Legal Tango for Control of Native American Skeletal Remains.” American Indian Law Review 15, no. 1 (1989): 115–50. Disparate worldviews contribute to the clash over tribal material culture. Museums have entered the fray due to the large number of skeletal remains in their holdings. The irony of the conflict is that many who are involved in the battle became so out of concern for tribal communities. It has led to judicial action in Newman v. State concerning tribal peoples’ efforts to obtain a skull. The First and Fourteenth Amendments provide tribal members constitutional avenues for redress.

3170. Platzman, Steven. “Objects of Controversy: The Native American Right to Repatriation.” American University Law Review 41 (Winter 1992): 517–58. Native people had no recourse in seeking return of cultural items housed in museums until Congress passed NAGPRA. Despite the act’s strong title, the law makes concessions to the American Museum Association reducing the legislation’s force; it is a compromise act to reduce the emotion associated with repatriation. The law’s scope should be expanded and a new management program created to inventory property, and the existing burden of proof requirements should be changed. 3171. Price, H. Marcus, III. Disputing the Dead: U.S. Law on Aboriginal Remains and Grave Goods. Columbia: University of Missouri Press, 1991. Provides a state-by-state listing of reburial laws. Relevant case law and federal laws are also included. 3172. Raines, June Camille Bush. “One Is Missing: Native American Graves Protection and Repatriation Act: An Overview and Analysis.” American Indian Law Review 17, no. 2 (1992): 639–64. NAGPRA is the best tool for tribal communities seeking to recover material culture. The act puts tribal rights above research interests. There are some ambiguities in the law that leave the door open for exploitation, but it is still a meaningful piece of legislation. 3173. Richman, Jennifer R. and Marion P. Forsyth, eds. Legal Perspectives on Cultural Resources. Walnut Creek, CA: AltaMira Press, 2004. With the passage of the 1906 act, cultural resource law has been growing. It is not specific to one nation, but is international in scope as cultures try to maintain their heritage. As a result, various examples from indigenous sites to shipwrecks have to be treated differently than in the past. 3174. Richman, Jennifer R. “NAGPRA: Constitutionally Adequate?” In Legal Perspectives on Cultural Resources, edited by Jennifer R. Richman and Marion P. Forsyth, 216–34. Walnut Creek, CA: AltaMira Press, 2004. Despite good intentions, NAGPRA has created First and Fourteenth Amendments issues and several courts have “raised the question of constitutional vagueness.” Other constitutional concerns are “potential taking implications and equal protection problems.” 3175. Riding In, James. “Repatriation: A Pawnee’s Perspective.” American Indian Quarterly 20 (Spring 1996): 238–50.

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Includes a discussion of how repatriation legislation came into existence, stressing that AIM, American Indians against Desecration, and other organizations that engaged in the debate over repatriation were leading the movement. Moderates seeking compromise took a more active role in pushing for repatriation legislation during the 1980s, and swift progress followed. Riding In stresses six remaining problems regarding repatriation, including the need for laws dealing with ancient, unclaimed, and unidentified remains, the inadequate enforcement of laws, and NAGPRA’s limited application to federal, and federally funded, entities. 3176. Riding In, James. “Without Ethics and Morality: A Historical Overview of Imperial Archaeology and American Indians.” Arizona State Law Journal 24 (Spring 1992): 11–34. Historical overview of non-Indian grave robbing. Together tribal activism and congressional political support have brought some protection of tribal burials. 3177. Riding In, James, Cal Seciwa, Suzan Shown Harjo, and Walter Echo-Hawk. “Protecting Native American Human Remains, Burial Grounds, and Sacred Places.” Wicazo Sa Review 19 (Fall 2004): 169–83. NAGRPA was designed to protect ceremonial, funerary, and human remains. Now institutions that receive federal monies and federal agencies must conduct inventories of these items. There have also been efforts to get scientists and tribal leaders together to discuss issues that relate to this legislation. 3178. Ritchie, Lucus. “Indian Burial Sites Unearthed: The Misapplication of the Native American Graves Protection and Repatriation Act.” Public Land & Resources Law Review 26 (2005): 71–96. Focuses on the recent discovery of tribal funerary remains on the Yankton Reservation. Tribal involvement is still too low and courts must not cut further into NAGPRA’s authority. 3179. Rosen, Deborah. “Acoma v. Laguna and the Transition from Spanish Colonial Law to American Civil Procedure in New Mexico.” Law and History Review 19 (Fall 2001): 513–46. Shortly after the American occupation of New Mexico, Acoma Pueblo claimed that Laguna Pueblo residents had not returned a borrowed painting of St. Joseph. The Pueblos turned to an ecclesiastical solution, and after drawing straws it was decided that God had decided the painting belonged at Acoma. Laguna stole it back, Acoma sued in federal court, and the case reached the New Mexico Supreme Court. This case illustrates how the U.S. accommo-

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dated cultural needs to foster American legal authority and sovereignty. 3180. Rosen, Lawrence, “The Excavation of American Indian Burial Sites: A Problem in Law and Professional Responsibility.” American Anthropologist, New Series, 82, no. 1 (1980): 5–27. Rosen examines alternative approaches to the excavation problems including judicial approaches, right to terminate remains displays, and right to privacy arguments. There is also a legislative approach where laws could be enacted to prevent burial excavations. 3181. Russell, Steve. “The Legacy of Ethnic Cleansing: Implementation of NAGPRA in Texas.” American Indian Culture and Research Journal 19, no. 4 (1995): 193–211. Tribes have had particular difficulty using NAGPRA to regain sacred objects and cultural artifacts in Texas. Property rights “reign supreme” in Texas and the rightful tribal claimants no longer reside in the state because of “ethnic cleansing” in the past. Because Texas retained its public domain upon entering the Union, special state laws protecting human remains and cultural items are necessary, but have not passed. 3182. Schneider, Alan J. “Kennewick Man: The ThreeMillion-Dollar Skelton.” In Legal Perspectives on Cultural Resources, edited by Jennifer R. Richman and Marion P. Forsyth, 202–15. Walnut Creek, CA: AltaMira Press, 2004. The costs concerning Kennewick Man were excessive because federal agencies involved in the issue wanted to accommodate tribal wishes. As a result, the manner that these skeletal remains were photographed and x-rayed was useless for science’s needs. To make matters worse, Congress requested the site not be reburied, but this was during a congressional recess. 3183. Sibley, Michelle. “Has Oregon Tightened the Perceived Loopholes of the Native American Graves Protection and Repatriation Act? Bonnichsen v. United States.” American Indian Law Review 28, no. 1 (2003–2004): 141–56. Traces the course of events surrounding Kennewick Man’s discovery, repatriation to a coalition of Pacific Northwest tribes, and subsequent litigation filed by scientists interested in studying the remains. In Bonnichsen, the U.S. District Court for the District of Oregon attempted to tighten a NAGPRA loophole opened by a Department of Interior decision that deemed any remains older than 510 years old automatically subject to the act.

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3184. Simon, Brona G. “Collaboration between Archaeologists and Native Americans in Massachusetts: Preservation, Archaeology, and Native American Concerns in Balance.” In Cross-Cultural Collaboration: Native Peoples and Archaeology in the Northeastern United States, edited by Jordan E. Kerber, 44–58. Lincoln: University of Nebraska Press, 2006. The Massachusetts Unmarked Burial Law (1983) led to productive collaboration and “the state burial law is an effective tool for the protection and preservation of burial sites located on both public and private property.” Case examples serve to exemplify the development of collaborative relationships. 3185. Sprague, Roderick. “American Indians and American Archaeology.” American Antiquity 39 (January 1974): 1–2. The Navajos passed an antiquities act in 1972 and the American Museum Association passed a resolution concerning human exhibits. These actions have created fear among some archaeologists. The discipline is overreacting. 3186. Stern, Walter E. “Potsherds and Petroglyphs: Effects of Cultural Resources Management on Public Lands Development.” Rocky Mountain Mineral Law Institute 41 (1995): 14-1–14-50. Includes tribal lands in a discussion of public lands resource management and mineral and oil development. 3187. Stern, Walter E. and Lynn H. Slade. “Effects of Historic and Cultural Resources and Indian Religious Freedom on Public Lands Development: A Practical Primer.” Natural Resources Journal 35, no. 1 (Winter 1995): 133–83. Surveys the different laws and regulations governing the care and preservation of tribal sites on pubic and tribal lands. Culturally sensitive sites on public and tribal lands are becoming more common concerns for federal and tribal agency officials. 3188. Stoffle, Richard W. and Michael J. Evans. “To Bury the Ancestors: A View of NAGPRA.” Practicing Anthropology 16 (Summer 1994): 29–32. Mutual trust is a key to NAGPRA’s success. 3189. Strickland, Rennard. “Implementing the National Policy of Understanding, Preserving, and Safeguarding the Heritage of Indian Peoples and Native Hawaiians: Human Rights, Sacred Objects, and Cultural Patrimony.” Arizona State Law Journal 24 (Spring 1992): 175–91. NAGPRA established a new policy toward tribal human remains and material culture based on respect and tribal control. There is now a tribal obligation to

participate in NAGPRA through the passage of tribal cultural codes and tribal court decisions. 3190. Strickland, Rennard and Kathy Supereaw. “Back to the Future: A Proposed Model Tribal Act to Protect Native Cultural Heritage.” Arkansas Law Review 46, no. 1 (1993): 161–201. Proposes legislation called a model Cultural Heritage Ordinance. This is a broad plan for tribes to consider for their own use that incorporates the criteria presented in NAGPRA. A key component would be a Cultural Heritage Committee that is involved in all aspects of this model ordinance. 3191. Stumpf, Gary D. “A Federal Land Management Perspective on Repatriation.” Arizona State Law Journal 24, no. 1 (Spring 1992): 303–20. NAGPRA and the new Arizona repatriation laws have just started to have an effect on archaeologists. The laws will work well in some cases and not in others. The public and tribal leaders are demonstrating a stronger sense of stewardship on all public lands. 3192. Suagee, Dean B. “Historical Storytelling and the Growth of Tribal Historic Preservation Programs.” Natural Resources & Environment 17 (Fall 2002): 86–88, 119–120. Section 106 of the National Historic Preservation Act requires tribes to be consulting parties. They are responsible for preservation on the reservation and for federal consultation when federal action might affect a tribal cultural site. When tribal communities get involved in historic preservation it may be for different reasons than those for which the non-tribal population gets involved. 3193. Suagee, Dean B. and Funk, Karen J. “Cultural Resources Conservation in Indian Country.” Natural Resources & Environment 7 (Spring 1993): 30–33, 61–63. Discusses historic preservation activities on reservations, especially regarding section 106 of the National Historic Preservation Act. 3194. Sullivan, Martin. “A Museum Perspective on Repatriation: Issues and Opportunities.” Arizona State Law Journal 24 (Spring 1992): 283–91. Art and history museums have greater expertise at solving cultural problems than do anthropological museums. Regional and local museums had some custody resolution policies before NAGPRA. Some disputes will be difficult to resolve with tribes such as the Hopis where the ceremonial leaders do not recognize tribal government leaders, but the tribal government is the body specified in NAGPRA to make a request to a museum.

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3195. Svingen, Orlan J. “The Pawnee of Nebraska: Twice Removed.” American Indian Culture and Research Journal 16, no. 2 (1992): 121–37. After the pain of being removed from Nebraska to Oklahoma, Pawnees had to face the further insult of having their ancestor’s remains and funerary goods disinterred by archaeologists and trophy hunters. The article also mentions Pawnee efforts to regain those remains but criticizes some scholars for their continuing insensitivity. 3196. Swidler, Nina, Kurt E. Dongoske, Roger Anyon, and Alan S. Downer eds. Native Americans and Archaeologists: Stepping Stones to Common Ground. Walnut Creek, CA: AltaMira Press, 1997. Collection of essays by various authors taken from sessions of the Society for American Archaeology dealing with this contentious relationship. Some of the essays focus on NAGPRA and Native American rights. 3197. Thom, Stephen N., Larry Myers and Julian Klugman. “Mediation and Native American Repatriation of Human Remains.” Mediation Quarterly 10 (Summer 1993): 397–404. Through mediation, tribal people and non-tribal people, who have differing goals regarding repatriation, can reach an amicable settlement. The authors provide strategies to consider for a successful mediation. The Native American Heritage Commission and the Community Relations Service of the U.S. Department of Justice work with California tribal communities in dispute resolution. 3198. Thomas, David Hurst. Skull Wars: Kennewick Man, Archaeology, and the Battle for Native American Identity. New York: Basic Books, 2000. This controversy is not a dispute between science and religion, but rather a political one. It is a power struggle among governmental agencies, academics, and Native Americans. 3199. Trigger, Bruce G. “Archaeology and the Image of the American Indian.” American Antiquity 45 (October 1980): 662–76. Archaeologists have treated tribal remains with detachment because of their detachment from the tribal people as human beings. Even the New Archaeologists have followed this same trend. 3200. Trope, Jack F. and Walter R. EchoHawk. “The Native American Graves Protection and Repatriation Act: Background and Legislative History.” Arizona State Law Journal 24 (Spring 1992): 35–77. There is a long history of discriminating against tribal remains and burials. NAGPRA is an important

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piece of legislation because, for the first time, American institutions must consider their collection policies from tribal viewpoints. 3201. Tsosie, Rebecca. “Indigenous Rights and Archaeology.” In Native Americans and Archaeologists: Stepping Stones to Common Ground, edited by Nina Swidler, Kurt E. Dongoske, Roger Anyon, and Alan S. Downer, 64–76. Walnut Creek, CA: AltaMira Press, 1997. Examines the Archaeological Resources Protection Act, National Historic Preservation Act, NAGPRA, and other legislation. “The idea that Native American remains and cultural objects can serve some common good must become a relic of a dying colonialism.” NAGPRA is a positive step. 3202. Tsosie, Rebecca. “Privileging Claims to the Past: Ancient Human Remains and Contemporary Cultural Values.” Arizona State Law Journal 31 (Summer 1999): 583–677. When science and the modern world cross, this intersection becomes a critical issue in preserving the cultural heritage of tribal America. Kennewick Man illustrates how important this intersection can be despite the passage of NAGPRA and the role of the media. In response to the controversy, the Hasting Bill was proposed to settle the conflict to the satisfaction of the archaeologists involved. 3203. Tweedie, Ann M. Drawing Back Culture: The Makah Tribe’s Struggle for Repatriation. Seattle: University of Washington Press, 2002. Repatriation and excavation are means to draw back culture and bring forth “intangible cultural resources.” Objects, such as a harpoon, can help revive cultural activities like whaling which further help revive other cultural activities. NAGPRA offers to do more than return possessions. Challenges that Makahs face in utilizing NAGPRA and their ingenuity in doing so are detailed, as are resulting internal debates about personal versus communal ownership. 3204. “U.S. vs. Corrow.” In Rethinking Commodificiation: Cases and Readings in Law and Culture, edited by Martha M. Ertman and Joan C. Williams, 156–63. New York: New York University Press, 2005. Text of the case from the Tenth Circuit Court of Appeals in 1997, where Richard N. Corrow claimed that NAGPRA was unconstitutional. Corrow was found guilty of “trafficking in protected Native American cultural items.” Corrow’s district court conviction was upheld. 3205. Versaggi, Nina M. “Tradition, Sovereignty, Recognition: NAGPRA Consultations with the Iroquois Confederacy of Sovereign Nations of New York.” In

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Cross-Cultural Collaboration: Native Peoples and Archaeology in the Northeastern United States, edited by Jordan E. Kerber, 18–31. Lincoln: University of Nebraska Press, 2006. Binghamton University’s NAGPRA consultations with the Six Nations serve as an example of collaboration. Tradition, sovereignty, and recognition are “major factors in the successful completion of consultation under NAGPRA” but are also “sources of tension that can make the whole process difficult to navigate.” 3206. Vizenor, Gerald. “Bone Courts: The Rights and Narrative Representation of Tribal Bones.” American Indian Quarterly 10 (Fall 1986): 319–31. Proposes the establishment of a “bone court” which would “have federal judicial power to hear and decide disputes over burial sites, research on bones, reburial, and to protect the rights of tribal bones to be represented in court.” The “rights of bones” are based on the fact that human rights extend posthumously and that the bones have a right to confront their oppressors in court. 3207. Watkins, Joe. “Yours, Mine, or Ours? Conflicts between Archaeologists and Ethnic Groups.” In The Future of the Past: Archaeologists, Native Americans and Repatriation, edited by Tamara L. Bray, 57–68. New York: Garland Publishing, 2001. A comparison of the repatriation controversy and Native attitudes in the U.S. and Australia shows strong similarities. The Kennewick Man issue serves as an example. Archaeologists split over the question of who has the right to control remains that are not easily connected to a contemporary cultural group. 3208. Weaver, Jace. “Indian Presence with No Indians Present: NAGPRA and Its Discontents.” In Native American Religious Identity: Unforgotten Gods, edited by Jace Weaver, 99–116. Maryknoll, NY: Orbis Books, 1998. Describes controversies that have occurred since NAGPRA’s passage. The act poses challenges but has functioned “reasonably well.” It teaches archaeologists the importance of good relations with tribes. 3209. Wilcox, Michael. “Dialogue or Diatribe? Indians and Archaeologists in the Post-NAGPRA Era.” In Spirit Wars: Native North American Religions in the Age of Nation Building, by Ronald Niezen, 190–93. Berkeley: University of California Press, 2000. Scholars have not dialogued with Native communities in the past and have created scholarly interpretations that separate these communities from their own past. Now NAGPRA ironically leaves these communities with the responsibility of proving their

connections to these scholarly invented pasts that were created in exclusion of them. 3210. Wilhardt, Liesl. The Repatriation Project of the Oglala Sioux Nation, a Report to the Repatriation Committee. Harvard Project on American Indian Economic Development, John F. Kennedy School of Government, Cambridge, MA: Harvard University, May 1994. The Gray Eagle Society of Elders and the tribe’s repatriation committee have begun the task of finding items crucial to them. The tribe needs to be aware of the larger picture that includes monetary considerations, repatriation policies, and funding sources. 3211. Wilson, Diana Drake. “California Indian Participation in Repatriation: Working Toward Recognition.” American Indian Culture and Research Journal 21, no. 3 (1997): 191–209. Points out the inequities of NAGPRA in its granting of repatriation rights to recognized tribes while denying rights to unrecognized tribes. Recognized tribes are therefore able to claim human remains that are more closely connected to unrecognized tribes. Wilson also stresses the need for greater understanding, on the part of institutions and scholars, of basic philosophical differences in the ways various groups view their connections to land and ancestral remains. 3212. Wilson, Paul E. and Elaine Oser Zingg. “Historic Preservation and American Indian Culture.” University of Kansas Law Review 22 (Spring 1974): 413–53. Historic preservation laws and an appreciation for Indian cultures are just beginning because American historic preservation laws have always pushed for the white culture’s heritage. There must be efforts to protect archaeological sites and funeral remains. Zoning laws and the passage of the Federal Historic Preservation Act in 1971 provide hope. 3213. Yalung, Catherine Bergin and Laurel I. Wala. “A Survey of State Repatriation and Burial Protections Statutes.” Arizona State Law Journal 24 (Spring 1992): 419–33. Most states require protection of tribal remains and funeral sites. A few provide for tribal repatriation. Despite the scarcity of legislation requiring the latter, most states require some tribal input. 3214. Yano, Lester I. “Protection of Ethnobiological Knowledge of Indigenous Peoples.” UCLA Law Review 41 (December 1993): 443–86. A growing issue is outsiders using or destroying tribal peoples’ plant knowledge without providing them compensation. Monopoly contracts are the best way to solve this problem as treaties, repatriation,

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and patents have been unsuccessful, unless the patent system is extended to include indigenous plant knowledge. 3215. Yellowman, Connie Hart. “‘Naevahoo’oshtseme’— We are Going Back Home: The Cheyenne Repatriation of Human Remains—A Woman’s Perspective.” St. Thomas Law Review 9 (Fall 1996): 103–16. In the early 1990s, Cheyenne representatives met with Smithsonian officials to begin the return of Cheyenne skeletal remains under NAGPRA. Despite the successful journey home for the Cheyenne from Sand Creek, tribal people must make the act work so that the journey for others will be shorter. 3216. Zimmerman, Larry J. “Anthropology and Responses to the Reburial Issue.” In Indians and Anthropologists: Vine Deloria, Jr. and the Critique of Anthropology, edited by Thomas Biolsi and Larry J. Zimmerman, 92–112. Tucson: University of Arizona Press, 1997. Anthropolgists’ and Native responses to repatriation have not been as polarized as the media present them. Zimmerman outlines differing anthropological responses including denial, dialogue, analysis and compromise. If the reburial controversy forces anthropologists to be more responsive, it will have helped the profession in the long run.

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3217. Zimmerman, Larry J. “Archaeology, Reburial, and the Tactics of a Discipline’s Self-Delusion.” American Indian Culture and Research Journal 16, no. 2 (1983): 37–56. Discusses the different tactics of self-delusion that archaeologists employ to defend their work. 3218. Zimmerman, Larry J. “Epilogue: A New and Different Archaeology?” American Indian Quarterly 20 (Spring 1996): 297–303. Attempts to predict future developments in the relationship between archaeologists and Native Americans, expecting to see greater reconciliation and changing attitudes, especially on the part of the archaeologists. NAGPRA is viewed optimistically as accelerating this reconciliation process. 3219. Zimmerman, Larry J. “Remythologizing the Relationship between Indians and Archaeologists.” In Native Americans and Archaeologists: Stepping Stones to Common Ground, edited by Nina Swidler, Kurt E. Dongoske, Roger Anyon, and Alan S. Downer, 44–56. Walnut Creek, CA: AltaMira Press, 1997. The remythologizing of their relationship includes archaeologists becoming more sympathetic to Indian concerns. Archaeologists must change the most and should see the reburial controversy as an opportunity. NAGPRA causes conflicts but “will speed along the process of reconciliation.”

Chapter 33 Intellectual Property, Artists’ Protections, Free Speech, and Mascots 3220. Bowekaty, Malcomb B. “Perspectives on Research in American Indian Communities.” Jurimetrics 42 (Winter 2002): 145–48. The Governor at Zuni discusses the role of the Zuni government in directing research pertaining to the Zuni people. Zunis support research, but claim ownership over it.

3224. Dougherty, Terence. “Group Rights to Cultural Survival: Intellectual Property Rights in Native American Cultural Symbols.” Columbia Human Rights Law Review 29 (Spring 1998): 355–400. Tribal images and words are not part of the public domain, and when non-Indians appropriate tribal symbols, jurisprudential issues follow. To protect tribal intellectual property, tribes must use their property rights because “[p]roperty defines what the society, or its representative, the state, cannot touch.”

3221. Cook-Lynn, Elizabeth. “Strategies.” Arizona State Law Journal 34 (Spring 2002): 261–68. There is a distinction between protecting tribal wisdom, which is what cultural leaders do, and determining strategies for cultural survival, which is what academics seek. Tribes need to develop their own research strategies to retake control of their own histories.

3225. DuBoff, Leonard D. “500 Years after Columbus: Protecting Native American Culture.” Cardozo Arts and Entertainment Law Journal 11, no. 1 (1992): 43–58. Provides a brief overview of federal legislation intended to protect tribal antiquity and contemporary artists. The author has a very favorable view of repatriation and the 1990 amendments to the Arts and Crafts Act, but is less favorable toward the repatriation act because of ambiguities.

3222. Cummings, André Douglas Pond. “Lions and Tigers and Bears, Oh My” or “Redskins and Braves and Indians, Oh Why?” Ruminations on McBride v. Utah State Tax Commission, Political Correctness, and the Reasonable Person.” California Western Law Review 36 (Fall 1999): 11–37. Three Utah residents who were Washington Redskins fans ordered vanity vehicle plates with variations of the term “redskin.” Two Native Americans claimed the plates were vulgar and the Utah Tax Commission revoked the plates. The Utah State Supreme Court agreed with the tax commission mirroring a national trend toward respecting tribal symbols.

3226. Dussias, Allison M. “Waging War with Words: Native Americans’ Continuing Struggle against the Suppression of Their Languages.” Ohio State Law Journal 60, no. 3 (1999): 901–93. The “lofty” intended goals of the 1990 Native American Languages Act have not been realized. Congress needs to increase funding to rectify past damages. 3227. Fletcher, Matthew L. M. “Theoretical Restrictions on the Sharing of Indigenous Biological Knowledge: Implications for Freedom of Speech in Tribal Law.” Kansas Journal of Law & Public Policy 14 (Spring 2005): 525–60. Using ICRA as a springboard, Fletcher wants this essay to expand the debate on tribal intellectual property rights and free speech within tribal communities. Tribal councils have the opportunity to pass stricter ordinances. Several factors, including sovereignty,

3223. Dennie, Christian. “Native American Mascots and Team Names: Throw Away the Key; The Lanham Act Is Locked for Future Trademark Challenges.” Seton Hall Journal of Sports and Entertainment Law 15, no. 2 (2005): 197–220. The Lanham Act that protects trademarks is not going to change. The best way for tribal America to change the use of tribal images as sports logos is to change public opinion. 335

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tradition, and intergenerational justice, must be considered before tribal limitations on free speech will be considered unconstitutional.

other pieces that are made by non-tribal artisans. As a result, arts do not play an important role in the Northwest, but could with proper support.

3228. Gitlin, Martin W. Completing the White Mountain Apache Tribal Museum and Culture Center. Harvard Project on American Indian Economic Development, John F. Kennedy School of Government, Cambridge, MA: Harvard University, May 1988. After a fire, insurance permitted the tribe to build a shell for their new cultural center. To finish the project may require outside funds. Outside organizations will be more likely to support the tribe’s venture if the tribe can demonstrate its commitment to finish the project. This will require grant writing, revenue collect for admission, and the creation of an independent governing board.

3233. Haiku, William J., Jr. “Of Kitsch and Kachinas: A Critical Analysis of the Indian Arts and Crafts Act of 1990.” Stanford Law Review 53 (April 2001): 1009–75. Congress passed this act to protect tribal artisans from forgeries and imitations, particularly in response to requests from Southwest tribal artists. The act’s civil and criminal components have been ineffective and in 2000 the law was amended in hopes of better enforcing it. Though the act was geared toward non-Indian imitators, Hopis have accused Navajos of making false Kachina dolls, and the increase of fake tribal arts produced overseas has posed new threats to Indian artists.

3229. Goldstein, Edward S. A Strategic Plan for the White Mountain Apache Culture Center and Historic Site at Fort Apache. Harvard Project on American Indian Economic Development, John F. Kennedy School of Government, Cambridge, MA: Harvard University, April 1988. The tribe wants to create a museum and cultural center that will preserve their history, but also provide a tourist enterprise. A fire destroyed the cultural center, but the tribe has a long-range vision to make this enterprise a viable part of the reservation’s development. 3230. Guest, Richard. “Intellectual Property Rights and Native American Tribes.” American Indian Law Review 20, no. 1 (1995–96): 111–39. Intellectual property rights include the right to participate in a ritual. The most common protections stem from copyright, patent, and trademark law, but the law only provides limited protection. The Indian Arts and Crafts Act of 1990 provides the best means of protection. 3231. Guggenheim, Jack Achiezer. “Renaming the Redskins (And the Florida University State Seminoles?): The Trademark Registration Decision and Alternative Remedies.” Florida State University Law Review 27 (Fall 1999): 287–323. The Trademark Trial and Appeal Board in 1999 canceled the Washington Redskins’ trademarks. The order does not prevent the team from using the name and logos, but it may hurt sales of team merchandise. This may start a new trend. 3232. Gunther, Erna. “Indian Craft Enterprises in the Northwest.” Human Organization 20 (Winter 1961–1962): 216–18. Northwest tribal art has not flourished because of the creation of miniature totem poles, baskets, and

3234. Herrera, Jessica R. “Not Even His Name: Is the Denigration of Crazy Horse Custer’s Final Revenge?” Harvard Civil Rights Civil Liberties Law Review 29 (Winter 1994): 175–95. Crazy Horse is important to the Lakota people and the use of his image and name on Crazy Horse Malt Liquor is wrong. “Recognizing a culturally based property interest in the Crazy Horse name would acknowledge Native Americans as people.” 3235. Johnson, Kim Chandler and John Terrence Eck. “Eliminating Indian Stereotypes from American Society: Causes and Legal Societal Solutions.” American Indian Law Review 20, no. 1 (1995–1996): 65–109. Stereotypes began with colonization and continue today in the form of team mascots. These images create legal issues that can result in litigation. The Public Accommodations Act and Trademark Law provide legal avenues for potential redress. 3236. Jordan, David B. “Square Pegs and Round Holes: Domestic Intellectual Property Law and Native American Economic and Cultural Policy: Can It Fit?” American Indian Law Review 25 (2000–2001): 93–115. U.S. intellectual property law is ill equipped to protect the interests of American Indian artists and craftspeople “because of its strong personal property and capitalist roots.” Adequate protection is necessary to aid in promoting tribal economic development and cultural perseverance. Jordan suggests a number of ways this problem could be rectified, including recognizing communal intellectual property rights and provisions allowing tribes to “recapture” rights to works now in the public domain. 3237. Kelbe, Bruce C. “ ‘Scalping the Redskins:’ Can Trademark Law Start Athletic Teams Bearing Native

Intellectual Property, Artists’ Protections, Free Speech, and Mascots

American Nicknames and Images on the Road to Racial Reform.” Hamline Law Review 17 (Spring 1994): 533–88. If owners of professional teams remove images of tribal people, they will lose their rights to those logos and others can appropriate them. On the other hand, these logos may be deemed racial under the Lanham Act. 3238. LaCourse, Richard. “Native Media Environments: More on the Genesis of American Indian Journalism.” Northeast Indian Quarterly 4 (Winter 1988): 34–39. Provides a history of the early Cherokee-printed newspapers. Today, urban and reservation communities both can rely on tribal newspapers. 3239. Latterell, Steven R. “Stopping the ‘Savage Indian’ Myth: Dealing with the Doctrines of Laches in Lanham Act Claims of Disparagement.” Indiana Law Journal 80 (Fall 2005): 1141–66. The public interest exception is one potential way to end the use of tribal names as team mascots. 3240. Ledwon, Lenora. “Native Life Stories and ‘Authorship’: Legal and Ethical Issues.” St. Thomas Law Review 9 (Fall 1996): 69–84. Describes the thorny legal copyright problem of an outside author writing a biography of a tribal person. The best illustration of this problem is Black Elk Speaks. There are moral stakes in these issues that extend to NAGPRA. 3241. Loving, Paul E. “Native American Team Names in Athletics: It’s Time to Trade These Marks.” Loyola of Los Angles Entertainment Journal 13, no. 1 (1992): 1–44. Since the federal government granted trademark protection to teams with tribal names, the issue is now in tribal hands. They should seek a judicial remedy under the Lanham Act. 3242. McNeil, Richard J. and Michael J. McNeil. “Ownership of Traditional Information: Moral and Legal Obligations to Compensation for Taking.” Northeast Indian Quarterly 5 (Fall 1989): 30–35. Tribal peoples should be protected legally in the transfer of traditional information to outsiders. This knowledge includes not only plant and biological data, but also genetics information. There are many legal avenues by which this can be achieved including the property theory, contract rules, and even fraud. 3243. Milchan, Suzanne. “Whose Rights Are These Anyway? A Rethinking of Our Society’s Intellectual Property Laws in Order to Better Protect Native

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American Religious Property.” American Indian Law Review 28, no. 1 (2003–2004): 157–72. Native American symbols have commonly been misappropriated by outsiders. Milchan offers legal strategies for protecting these symbols, such as the Zia Pueblo Sun. The current system must be adapted to fit Native American conceptions and needs. 3244. Moreland, J. Wm. “American Indians and the Right to Privacy: A Psycholegal Investigation of the Unauthorized Publication of Portraits of American Indians.” American Indian Law Review 15, no. 2 (1990): 237–77. Considers cases involving individuals who used an individual’s image without telling them the purpose for which that image would be used. If one attempts to sue and regain their privacy, the very nature of a court proceeding exposes an individual to more publicity and an even greater loss of privacy. Since the public’s courts will not protect tribal privacy, this is now a matter for tribal courts to pursue. 3245. Nason, James D. “Traditional Property and Modern Laws: The Need for Native American Community Intellectual Property Rights Legislation.” Stanford Law and Policy Review 12 (Spring 2001): 255–65. NAGPRA was a beginning point in developing intellectual protection of tribal intellectual property rights, but more needs to be done. In particular, tribal councils need to enact and enforce laws. 3246. Newell, Leslie. “Press Freedom in Indian Country— Issues and Cases.” Northeast Indian Quarterly 4 (Spring and Summer 1987): 3–8. The reservation’s legal status and the tribe’s sovereignty provide different protections for the reservation writer of news stories. Even after ICRA, reservation journalists do not have the same protections as non-Indian journalists working off the reservation. Plaintiffs must seek redress in tribal courts. 3247. Newton, Nell Jessup. “Memory and Misrepresentations: Representing Crazy Horse.” Connecticut Law Review 27 (Summer 1995): 1003–54. Marketing tribal names and images is an important issue for tribal authority. When Crazy Horse Malt Liquor was labeled and sold, Seth Big Crow, on behalf of Crazy Horse’s estate, sued the makers in Rosebud Sioux Tribal Court. Judge Stanley Whiting dismissed the case for lack of authority. This case was appealed to the Supreme Court of the Rosebud Sioux Nation and, should it continue in federal court, the stakes are high for tribal sovereignty. 3248. Novello, Antonia C. “Crazy Horse Malt Liquor Beverage: The Public Outcry to Save the Image of a

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Native American Hero.” South Dakota Law Review 38, no. 1 (1993): 14–21. Native communities have a high rate of alcoholism and any advertising that encourages greater rates should be discouraged. This marketing campaign was insensitive to the needs and the heritage of tribal America. 3249. Osborne, Stephen D. “Protecting Tribal Stories: The Perils of Propertization.” American Indian Law Review 28, no. 1 (2003–2004): 203–36. Native Americans concerned with the marketing of Indian art tend to be either “realists” who believe that selling tribal art is a reasonable means of economic development and worry about competition from exploitative outsiders. Or, they are “traditionalists” who are more concerned about the commercial exploitation of, and consequent lost meaning of, tribal traditions. Present laws offer protection to Native artists who are “realists” but do not protect the interests of “traditionalists.” 3250. Parsley, Jon Keith. “Regulation of Counterfeit Indian Arts and Crafts: An Analysis of the Indian Arts and Crafts Act of 1990.” American Indian Law Review 18, no. 1 (1993): 487–514. This act is intended to protect tribal artisans. Since the act defines “Indian” in a very narrow manner, the law excludes ethnic Indians and that violates their “First Amendment rights to express their heritage.” The law’s definition should be extended and states also should police this problem area. 3251. Posey, Darrell A. and Graham Dutfield. Beyond Intellectual Property: Toward Traditional Resource Rights for Indigenous People and Local Communities. Ottawa: International Development Research Centre, 1996. A study of indigenous rights worldwide, including tribal rights in the U.S. Chapter subjects include discussions of why outsiders visit tribal communities, who benefits from indigenous resources, informing the local community, rights of indigenous communities, solutions, and strategies for indigenous protection of local resources. 3252. “A Public Accommodations Challenge to the Use of Indian Teams’ Names and Mascots in Professional Sports.” Harvard Law Review 112 (February 1999): 904–21. American Indians are denied full and equal enjoyment of place when attending events that use these images. On the other hand, professional teams have a first amendment defense. 3253. Riley, Angela R. “‘Straight Stealing’: Towards an Indigenous System of Cultural Property Protection.”

Washington Law Review 80 (February 2005): 69–164. Theft of tribal intellectual property has increased over the last decades. To prevent this ongoing assault on tribal cultural integrity, tribal, federal, and international laws must be applied in concert to protect this knowledge, but tribal law must be the rock that others support since the support of tribal legal systems will also enhance tribal sovereignty. 3254. Schneider, Christopher. “Hornell Brewing Co. v. Rosebud Sioux Tribal Court: Denigrating the Spirit of Crazy Horse to Restrain the Scope of Tribal Court Jurisdiction.” South Dakota Law Review 43, no. 2 (1998): 486–526. The estate of Crazy Horse sued the Hornell Brewing Company for using his name without permission. The litigation began in tribal court, but the company filed suit in federal court claiming the tribal court lacked jurisdiction. The Eighth Circuit Court agreed. 3255. Schrader, Robert Fay. The Indian Arts and Crafts Board: An Aspect of New Deal Indian Policy. Albuquerque: University of New Mexico Press, 1983. The board’s creation in 1935 demonstrated that Indian policy-makers had moved from efforts to destroy Indian cultures to an effort to preserve them. Schrader explains how the board’s General Manager René d’Harnoncourt, and others, carried out this policy between 1935 and 1945. Schrader credits the board for successfully supporting Native arts and for its responsibility and unwavering commitment. 3256. Sheffield, Gail K. The Arbitrary Indian: The Indian Arts and Crafts Act of 1990. Norman: University of Oklahoma Press, 1997. Congress passed this act to end the marketing and labeling of non-tribal art as tribal art. At the same time, the act had to define who was an Indian to prevent individuals from misrepresenting themselves. The act defines what constitutes a tribe. It has created conflict within tribal communities. 3257. Singer, Joseph William. “Publicity Rights and Conflict of Laws: Tribal Court Jurisdiction in the Crazy Horse Case.” South Dakota Law Review 41, no. 1 (1996): 1–44. Lakotas objected to Hornell Brewing Company using Crazy Horse’s name to market malt liquor. Issues at stake include the property infringement of the Lakota leader’s name and whether the Rosebud Sioux Tribe should be entitled to hear this case. 3258. Stephenson, David J. “The Nexus between Intellectual Property, Piracy, International Law, the Internet, and Cultural Values.” St. Thomas Law Review 14 (Winter 2001): 315–35.

Intellectual Property, Artists’ Protections, Free Speech, and Mascots

The Cow Creek lawsuit was intended to protect the “Indian” name against the Indian Motorcycle Company. The new company tried to play on a false image to the American public. This case reveals how indigenous people can use international law to protect their property rights. 3259. Strickland, Rennard. “Things Not Spoken: The Burial of Native American History, Law and Culture.” St. Thomas Law Review 13 (Fall 2000): 11–17. Actions should be called what they are; genocide is genocide. To begin this era of truth, a Native American Historical Commission should be created to gather data and to tell the truth. A National Museum of the American Indian should do more than tell a story of survival, but should also include the story of what it has taken to survive. 3260. Trainor, Daniel J. “Native American Mascots, Schools, and the Title VI Hostile Environment Analysis.” University of Illinois Law Review, no. 4 (1995): 971–1001.

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Change is needed to end this conflict between tribal and non-tribal communities. The best way is to tie mascot issues to the loss of federal funding. 3261. Tsosie, Rebecca. “Reclaiming Native Stories: An Essay on Cultural Appropriation and Cultural Rights.” Arizona State Law Journal 34 (Spring 2002): 299–358. Storytelling is an important aspect of cultural sovereignty. Since the non-Indian world has produced most of the mass media presentations about tribal America, the tribal communities must determine the boundaries that outsiders may cross to have access to tribal culture. 3262. Whitt, Laurie Anne. “Indigenous Peoples, Intellectual Property and the New Imperial Science.” Oklahoma City University Law Review 23 (Spring and Summer 1998): 211–59. A critique of the Diversity Project, describing it as imperialism clothed in science with commercial goals outside that of pure science.

Chapter 34 “Indian” Identity, Tribal Enrollment, and U.S./State Citizenship

3263. Abbott, George A. “The American Indian, Federal Citizen and State Citizen.” Federal Bar Journal 20 (Summer 1960): 248–54. American Indians have a complex legal status and P.L. 280 complicated it even more. The radio, the pickup, and military service brought the reservation closer to non-reservation communities and, hopefully, meaningful bridges can be built in the future.

3267. Biolsi, Thomas. “The Birth of the Reservation: Making the Modern Individual among the Lakota.” American Ethnologist 22, no. 1 (1995): 28–53. Office of Indian Affairs policies contributed to the creation of new Lakota individual identities “bound to the state and civil society through various cultural and material means.” These identities were based on property ownership, wardship status, blood quanta, and family relationships.

3264. Andrade, Ron. “Are Tribes Too Exclusive?” American Indian Journal of the Institute for the Development of Indian Law 6, no. 7 (July 1980): 12–13. Tribal governments have the right to determine tribal membership. Many individuals complain that requirements are too rigid and damage the tribes’ futures.

3268. Brown, Loren N. “The Choctaw–Chickasaw Court Citizens.” Chronicles of Oklahoma 16 (December 1938): 425–43. An 1896 act gave the Dawes Commission the power to prepare tribal rolls. Many Indians believed the courts were usurping a tribal function. An 1898 act allowed them to appeal directly to the U.S. Supreme Court on the grounds of constitutionality, but the Supreme Court decided in favor of the courts’ authority. Tribal lawyers successfully pressed for establishment of the Choctaw–Chickasaw Citizenship Court in 1902 to render such decisions. The Citizenship Court’s decisions were more in line with the Commission’s findings than with those of the territorial courts.

3265. Barker, Joanne. “Indian™ USA.” Wicazo Sa Review 18 (Spring 2003): 25–79. Analyzes the 1990 Indian Arts and Crafts Act’s definitions of who is an Indian and can label handicrafts accordingly. Barker is critical of government identification and recognition standards that disenfranchise people. 3266. Barsh, Russel Lawrence. “An American Heart of Darkness: The 1913 Expedition for American Indian Citizenship.” Great Plains Quarterly 13 (Spring 1993): 91–116. The Rodman Wanamaker Expedition was “a distinctively American Heart of Darkness, in which a single troubled and mysterious man was able . . . to impose his romantic fantasies on every Indian tribe in the United States.” Tribes on eighty-nine reservations were asked to sign a vellum “Declaration of Allegiance of the North American Indian” and raise an American flag. Some participating Native Americans viewed this as a treaty promising them their rights, but it was a charade to “legitimize white dominance.”

3269. Brownwell, Margo S. “Who Is an Indian? Searching for an Answer to the Question at the Core of Federal Indian Law.” University of Michigan Journal of Law Reform 34 (Fall 2000 and Winter 2001): 275–320. Explains the differing federal statutes, BIA regulations, and state laws that define racially who is an Indian. Race is an unconstitutional means of defining Indian identity. A uniform definition should be applied based on the 1990 Indian Arts and Crafts Act that defers the definition of who is an Indian to tribal governments. 3270. Bruyneel, Kevin. “Challenging American Boundaries: Indigenous People and the ‘Gift’ of U.S. Citizenship.” 341

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Studies in American Political Development 18 (Spring 2004): 30–43. Describes the range of tribal views of gaining U.S. citizenship. Some have opposed the system and others have tried to work through it. 3271. Campisi, Jack. The Mashpee Indians: Tribe on Trial. Syracuse, NY: Syracuse University Press, 1991. The Mashpees of Cape Cod, in 1977, claimed the right to recover lost lands based on the Indian Trade and Intercourse Act of 1790, but the court decided that they were not a tribe and thus denied their claim. Campisi focuses on the meaning of the term “tribe” and ways in which “anthropological and historical data were used and abused in a courtroom setting.” The group has maintained its tribal identity. 3272. Carter, Kent. “Deciding Who Can Be Cherokee: Enrollment Records of the Dawes Commission.” Chronicles of Oklahoma 69 (Summer 1991): 174–205. The commission tried to act honestly and to “balance the interests of the applicants and the tribe and probably did the best job possible under the conditions it faced.” 3273. Clifford, James. “Identity in Mashpee.” In The Predicament of Culture: Twentieth-Century Ethnography, Literature, and Art, edited by James Clifford, 277–346. Cambridge, MA: Harvard University Press, 1988. A 1977 claims suit, Mashpee Tribe v. New Seabury Corp., hinged on whether the Mashpee plaintiffs did indeed constitute a tribe and the same one whose lands had been taken. The court decided against them, but Clifford believes that the tribe’s culture had endured over 350 years and was now in a revival process. 3274. Clifton, James A. “The Southern Ute Tribe as a Fixed Membership Group.” Human Organization 24 (Winter 1965): 319–27. The membership process at Southern Ute Reservation is a recent phenomenon. This process has its roots in the 1954 federally approved economic and social development plan that stresses economic and political stability and autonomy. Members benefit but nonmembers do not. The tribe as a corporate unit serves all members regardless of their degree of assimilation or occupation. 3275. Cohen, Felix. “Indian Wardship: The Twilight of a Myth.” American Indian 6 (Summer 1953): 8–14. Recent court cases have held that Indians are not federal wards under guardianship, but rather full U.S. and state citizens. Nevertheless, the myth of wardship lingers among the American public.

3276. Coker, William Sidney. “Pat Harrison’s Efforts to Reopen the Choctaw Citizenship Roles.” Southern Quarterly 3 (October 1964): 36–61. When Choctaws left Mississippi in the 1830s, some remained in the state. They were separated from their kin for decades by distance, time, and law. Oklahoma Choctaw enrollment lists were closed in 1907, and Mississippi legislator Pat Harrison initiated an eight-year battle to open the Oklahoma rolls to the Mississippi Choctaw. 3277. Curry, Lucy A. “A Closer Look at Santa Clara Pueblo v. Martinez: Membership by Sex, by Race, and by Tribal Tradition.” Wisconsin Women’s Law Journal 16 (Fall 2001): 161–214. Feminist theory has embraced Martinez as the legacy of white male-dominated Indian law. The tribal ordinance that denied Julia Martinez’s child membership was based on federal standards. Curry also considers the question of who should have oversight over tribal tradition by examining historic tribal membership standards. 3278. Davidson, Thomas E. “Indian Identity in Eighteenth Century Maryland.” Oklahoma City University Law Review 23 (Spring and Summer 1998): 133–40. The colony of Maryland classified Indians by culture, not race. Those who lived like Indians on treatydefined lands were Indians. Tribal individuals who left the reservations were reclassified as free blacks. 3279. Davies, Wade and Peter Iverson. “American-Indian Identities in the Twentieth Century.” Organization of American Historians: Magazine of History 9 (Summer 1995): 15–21. Focuses on the cultural aspects of Indian identity and stresses variation and complexity of Native conceptions of themselves in the twentieth century. Touches on such topics as Native activist organizations, economic development and the pursuit of sovereignty. 3280. Deloria, Philip S. and Nell Jessup Newton. “The Criminal Jurisdiction of Tribal Courts over NonMember Indians: An Examination of the Basic Framework of Inherent Tribal Sovereignty before and after Duro v. Reina.” Federal Bar News & Journal 38 (March 1991): 70–76. Three classes of tribal members live on reservations: enrolled members, those who are enrolled elsewhere and work on reservations, and those who defy enrollment either because they are protesting IRA governments or as cultural expressions. This last group may be the largest. Duro disrupted tribal inherent sovereignty to prosecute Native Americans regarding where they were enrolled or not enrolled.

“Indian” Identity, Tribal Enrollment, and U.S./State Citizenship

Congress amended ICRA to restore the pre-Duro inherent sovereign condition. 3281. Finger, John R. “The North Carolina Cherokees, 1838–1866: Traditionalism, Progressivism, and the Affirmation of State Citizenship.” Journal of Cherokee Studies 5 (Spring 1980): 17–29. To maintain their identities, the removed Cherokees stressed their national identity and culture, while those who remained in North Carolina sought citizenship, claiming they were acculturated, as means to remain in the state. A local white, William Holland Thomas provided this advice, and in 1866 North Carolina granted them permanent residence, but they never asked for the vote. 3282. Flanagan, Sharon P. “The Georgia Cherokees Who Remained: Race, Status, and Property in the Chattahoochee Community.” Georgia Historical Quarterly 73 (Fall 1989): 584–609. Account of an often-ignored remnant of affluent Cherokees who, with the state government’s approval, were not removed from Georgia. Twenty-two of these mixed-race families gained state citizenship rights under the state’s Cherokee Indian Citizenship Act of 1838. 3283. Flies-Away, Joseph Thomas. “My Grandma, Her People, Our Constitution.” In American Indian Constitutional Reform and the Rebuilding of Native Nations, edited by Eric D. Lemont, 144–65. Austin: University of Texas Press, 2006. A judge and member of the Hualapai nation discusses a 1991 revision of the tribal constitution and related disputes regarding blood quantum and tribal membership. Blood quantum requirements should be replaced with tribal ordinances and the status of nonmembers must be provided for in the constitution. 3284. Funke, Karl. “Educational Assistance and Employment Preference: Who Is an Indian?” American Indian Law Review 4, no. 1 (1976): 1–45. Section 19 of the IRA provides a definition of an Indian as someone who resides on a reservation and is a member of a recognized tribe, and anyone who is one-half Indian. Funke discusses the problems of determining education and employment preference for tribal members as new rules and regulations are written. 3285. Garroutte, Eva Marie. “The Racial Formation of American Indians: Negotiating Legitimate Identities within Tribal and Federal Law.” American Indian Quarterly 25 (Spring 2001): 224–39. Most tribes use blood quantum to determine membership, while about one-third employ lineal descent. Other factors enter into a tribe’s membership criteria,

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including a vote. The U.S. had thirty-three criteria for determining Indian identity in 1978, most involving blood quantum. 3286. Gates, Merrill E. “Land and Law as Agents in Educating Indians.” Journal of Social Science 21 (1886): 113–46. The loss of land and the passage of laws have created reservations that have pauperized tribal people and provided them with diminished rights as wards. Citizenship is their salvation. 3287. Goldberg, Carole. “‘Members Only’: Designing Citizenship Requirements of Indian Nations.” University of Kansas Law Review 50 (April 2002): 437–71. Lineage and blood quantum are the most common requirements for tribal membership, but there are others that tribal communities should consider. Being too narrow or too broad in applying membership requirements produces different problems. 3288. Gonzalez, Ellice B. “Tri-Racial Isolates in a BiRacial Society: Poospatuck Ambiguity and Conflict.” In Strategies for Survival: American Indians in the Eastern United States, edited by Frank W. Porter, III, 113–37. New York: Greenwood Press, 1986. The Poospatuck of Long Island have struggled to prove their identity and their rights to a staterecognized reservation, and have battled internal splits over determinations of membership. Their identity is ambiguous legally, internally, and in terms of outside perceptions. 3289. Gooding, Susan Staiger. “Place, Race, and Names: Layered Identities in United States v. Oregon, Confederated Tribes of the Colville Reservation, Plaintiff-Intervenor.” Law & Society Review 28, no. 5 (1994): 1181–1229. There is a relationship between law and race that shapes tribal identities. As they fought for fishing rights, another tribal identifying marker arose whereby the Native Americans construct identity around place instead of race. Law is part of tribal identities. 3290. Gould, Scott L. “Mixing Bodies and Beliefs: The Predicament of Tribes.” Columbia Law Review 101 (May 2001): 702–72. Defining tribal membership based on blood is problematic in the “post-inherent sovereignty world.” Defining tribes as racial entities raises constitutional questions such as continuing benefits under the Indian Commerce Clause “without violating the equal protection component of the Due Process Clause.” Based on current court hostility to common ancestry membership, racially diverse tribes should redefine their membership to regain sovereignty.

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3291. Hagan, William T. “Full Blood, Mixed Blood, Generic, and Ersatz: The Problem of Indian Identity.” Arizona and the West 27 (Winter 1985): 309–26. Who has the right to determine who is an Indian has been historically controversial and confusing. The federal government had generally accepted by 1900 that tribes had the right to so determine. The issue has been of great importance because community status, eligibility for federal programs, access to claims awards, and access to tribal monies hinge on determinations of Indian identity and tribal membership. 3292. Harmon, Alexandra. “Lines in Sand: Shifting Boundaries between Indians and Non-Indians in the Puget Sound Region.” Western Historical Quarterly 26 (Winter 1995): 429–53. Discusses the difficulties that the federal government, tribal governments, and others have had in determining who can be identified as Indian and to what tribes they belong in the Puget Sound region of Washington. 3293. Harmon, Alexandra. “Tribal Enrollment Councils: Lessons on Law and Identity.” Western Historical Quarterly 32 (Summer 2001): 175–200. Records of Colville enrollment councils between 1907 and 1917 shed light on the relationship between federal and tribal governments regarding the determination of tribal membership. Rather than leaving such decisions to tribes alone, federal courts have given the U.S. “a role in constituting Indian tribes.” But the federal influence is not as dominant as other scholars have argued. 3294. Harris, Cheryl I. “Whiteness as Property.” Harvard Law Review 106 (June 1993): 1709–91. Discusses the legacy of legal white property concepts and the damage that they have done to many oppressed groups, including the Mashpee, because of “the law’s refusal to acknowledge the negotiated quality of identity.” 3295. Henry, Jeannette and Rupert Costo. “Who Is an Indian?” Wassaja/The Indian Historian 13 (June 1980): 15–18. The Indian Education Act (PL 92-318) defines “Indian” in a way that is not satisfactory to many tribal members. Congress did not include non-recognized tribes, and the U.S. has no right to define who is a tribal member, since that is a tribal right. Defining who is an Indian is crucial for the provision of federal services and in combating the decline of federal funding. 3296. Highwater, Jamake. “Second-Class Indians.” American Indian Journal of the Institute for the Development of Indian Law 6 (July 1980): 6–11.

Strict tribal enrollment requirements have made it difficult for culturally tribal people to enter the Indian world, a world that is often filled with “exclusivity and snobbery.” 3297. Jaimes, M. Annette. “Federal Indian Identification Policy: A Usurpation of Indigenous Sovereignty in America.” Policy Studies Journal 16 (Summer 1988): 778–98. Blood quantum is the worst form of institutional identification for tribal people and has led to the loss of land and funds, as well as diminishing tribal sovereignty. 3298. James, Parthenia Louise. “The Freedmen Problem in the Chickasaw Nation.” Chronicles of Oklahoma 45 (Spring 1967): 44–57. The 1866 treaty specified options for dealing with freedmen. The tribe, wishing that its members would not be outnumbered by African Americans, requested that the freedmen be removed. A group of freedmen requested to be relocated and believed that the federal government would assume its treaty responsibilities toward them. The federal government’s inaction and tribal refusal to accept the freedmen as full citizens left them in a difficult position. 3299. Johnson, Kenneth W. “Sovereignty, Citizenship, and the Indian.” Arizona Law Review 15, no. 4 (1973): 973–1003. Tribal people were excluded from the new nation according to the Federalist Papers Number 3, 24, and 42, and the Constitution. The 1924 Indian Citizenship Act was an illustration of tribal decline. Since tribal sovereignty was disposable, rights had to be conferred on individuals. Title II of the Civil Rights Act of 1968 affirms tribal inherent rights of self-rule. 3300. Lake, James A., Sr. “Standing Bear! Who?” Nebraska Law Review 60, no. 3 (1981): 451–503. Overview of the Standing Bear v. Crook case, involving a Ponca leader and habeas corpus. Judge Dundy’s application of Indian law would be difficult today because the federal government does not divide Indians into those who have severed their tribal ties and those who have not. 3301. Lee, R. Alton. “Indian Citizenship and the Fourteenth Amendment.” South Dakota History 4 (Spring 1974): 198–221. A positive cant on the movement toward Indian citizenship. Tribal standing had thwarted this effort because tribes are sovereigns. This barrier was lowered with the passage of the 1924 Indian Citizenship Act. 3302. Lembertson, G. M. “Indian Citizenship.” American Law Review 20 (March–April 1886): 183–93.

“Indian” Identity, Tribal Enrollment, and U.S./State Citizenship

Congressional discussions concerning the Fourteenth Amendment included tribal people. Some congressmen wanted to include Native Americans in the amendment, while others argued that they were nations not subject to U.S. jurisdiction. Indian citizenship lost by a ten to thirty vote. Lembertson supports tribal citizenship, but only after they are educated and understand American institutions. The destruction of the tribes will come, but citizenship will be a means to a positive end. 3303. Lien, Arnold J. “The Acquisition of Citizenship by the Native American Indians.” Publications of Washington University 13 (1925): 121–79. Describes six different ways that tribal residents became citizens of the U.S. Despite the General Citizenship Act, Indians remain outside the greater society. 3304. Littlefield, Daniel F., Jr. The Cherokee Freedmen: From Emancipation to American Citizenship. Westport, CT: Greenwood Press, 1978. Focuses on the freedmen’s struggle after the Civil War to gain tribal citizenship and the accompanying rights to tribal lands and funds. This struggle “contributed to the dissolution of the Cherokee Nation and the opening of the Indian Territory to non-Indian settlement.” 3305. Littlefield, Daniel F., Jr. The Chickasaw Freedmen: A People without a Country. Westport, CT: Greenwood Press, 1980. Their story is more obscure than that of former slaves of other tribes because they lacked citizenship during their years living in the Chickasaw Nation. The tribe did not adopt them after the Civil War and the U.S. failed to deliver on its treaty promise to remove them from Chickasaw country. They struggled for forty years to claim their rights as tribal members before being granted state and U.S. citizenship. 3306. Lomayesva, Fred. “Indian Identity—Post Indian Reflections.” Tulsa Law Journal 35 (Fall 1999): 63–72. It is important in the study of law of sovereigns to refocus our emphasis away from definitions of who is an Indian and refocus our concern on that individual as a member of a tribal community. 3307. Lovett, Laura L. “‘African and Cherokee by Choice’: Race and Resistance under Legalized Segregation.” American Indian Quarterly 22 (Winter/Spring 1998): 203–29. Documents efforts of African Americans, Native Americans, and people of mixed ancestry to defy legalized segregation by claiming their Native American ancestry and thus undermine biracial classifications. In addition to being a means to resist

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race-based law, invoking Native ancestry has also been a means to reclaim identities. 3308. Ludtke, Jean E. “Mashpee: Town or Tribe? Current Wampanoag Land Claims Suit.” American Anthropologist 80, no. 2 (1978): 377–79. In 1976, a suit was filed claiming that the Mashpee town had never received Congressional approval for a land sale based on the 1790 Nonintercourse Act that requires congressional authorization. The major point in this trial is whether the group is a tribe, and Ludtke contends that they are a Wampanoag band. 3309. Ludwick, Brendan. “The Scope of Federal Authority over Tribal Membership Disputes and the Problem of Disenrollment.” Federal Lawyer 51 (October 2004): 37–46. As gambling revenues increase, discontent within tribal communities has increased, often resulting in disenrollment movements. Despite the policy of selfdetermination, the federal government could interfere in tribal enrollment conflicts. Tribes should permit dissent and eliminate abusive membership tactics. 3310. Lux, Joseph R. “When Is an Indian Not an ‘Indian?’— State v. Daly.” South Dakota Law Review 36, no. 2 (1991): 419–33. John Jerald Daly, a Lumbee, committed a crime on Rosebud and pleaded guilty, then asked for his case to be dismissed because he was an Indian under the Major Crimes Act. The state countered that he was not an Indian based on the 1956 Lumbee Indian Act. The South Dakota Supreme Court decided they did not have to determine if he was a Lumbee, but decided to follow a comity argument instead. 3311. McFadden, Marguerite. “Intruders or Injustice?” Chronicles of Oklahoma 48 (Winter 1970–1971): 431–49. Reprinted collection of correspondence concerns efforts of one family to prove their Cherokee citizenship after the Civil War, as well as the conflicting opinions of the Cherokee courts and U.S. Supreme Court. 3312. Magliocca, Gerard N. “The Cherokee Removal and the Fourteenth Amendment.” Duke Law Journal 53 (December 2003): 875–965. Worcester v. Georgia influenced the Fourteenth Amendment. Since giving individual Native Americans citizenship was contrary to federal policy and tribal self-rule, the reconstruction writers “resolved these inconsistencies by holding that Tribes were not entitled to citizenship granted by Section 1” of the amendment. 3313. Maltz, Earl M. “The Fourteenth Amendment and Native American Citizenship.” Constitutional Commentary 17 (Winter 2000): 555–73.

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Post–Civil War human rights discussions have almost exclusively focused on African Americans and their new freedom. Questions of tribal sovereignty remained clouded until the passage of the 1887 General Allotment Act that opened the door for citizenship, and the case United States v. Wong Kim Art that conferred citizenship on children born outside a reservation.

ugh, Glenn T. Morris, and Rudolph C. Ryser, 79–89. Kenmore, WA: Center for World Indigenous Studies, 1989. Citizenship was and is an alien concept to many American Indians. A handful of nation-states have used citizenship to justify their wrongful colonization of indigenous peoples.

3314. Martin, Jill E. “‘Neither Fish, Flesh, Fowl, nor Good Red Herring’: The Citizenship Status of American Indians, 1830–1924.” Journal of the West 29 (July 1990): 75–87. Surveys the evolution of American Indian citizenship. Considers the importance of Dred Scott, the Fourteenth Amendment, Elk v. Wilkins, the Dawes and Burke Acts, numerous other court cases, and the 1924 decision to grant citizenship to all Native Americans.

3319. Nagel, Joane. American Indian Ethnic Renewal: Red Power and the Resurgence of Identity and Culture. New York: Oxford University Press, 1996. Growing Native American population figures do not simply reflect demographic change, but also the increasing likelihood that people will choose to so identify themselves. There has also been a cultural renaissance and Indian ethnicity has thus been renewed and reaffirmed.

3315. Melaku, Martha. “Seeking Acceptance: Are the Black Seminoles Native Americans? Sylvia Davis v. the United States of America.” American Indian Law Review 27, no. 2 (2002–2003): 539–32. The tribe’s sovereign immunity meant that the plaintiffs in Davis v. United States could not join the Seminole Nation as a defendant in their effort to win access to awarded funds. The U.S. District Court ruled in 2002 that the case had to be dismissed. The BIA should finally recognize the Black Seminoles as tribal members and grant their participation in the award programs.

3320. Neath, Mark. “American Indian Gaming: Enterprises and Tribal Membership: Race, Exclusivity, and a Perilous Future.” University of Chicago Law School Roundtable 2, no. 2 (1995): 689–709. As gambling increases some tribes’ revenues, there is an incentive for off-reservation members to return, thus forcing tribal governments to consider some constraints on membership. If they use blood, they will diminish membership, but face greater court or congressional scrutiny. On the other hand, they must control reservation population. Tribes should abandon the blood standard and return to a culturally based one.

3316. Metteer, Christine. “The Trust Doctrine, Sovereignty, and Membership: Determining Who Is Indian.” Rutgers Race & the Law Review 5, no. 1 (2003): 53–92. It is potentially unconstitutional to define Indian status by blood or race, thus forcing Congress to rely on tribes to determine tribal membership. Yet, the problem of who is an Indian is compounded by the differing criteria used by the BIA that often leaves the urban Native Americans out. The Census Bureau uses race to define Indian identity and the federal government often seeks to define it through its trust relationship. 3317. Miller, Susan A. “Seminoles and Africans under Seminole Law: Sources and Discourses of Tribal Sovereignty and ‘Black Indian’ Entitlement.” Wicazo Sa Review 20 (Spring 2005): 23–47. The Seminole Freedmen today have entered into a legal battle to plunder the Seminoles. They should defend their indigenous nation-state and seek U.S. recognition instead of taking from the Seminoles. 3318. Mohawk, John C. “Indian Nations, the United States and Citizenship.” In Indian Self-Governance: Perspectives on the Political Status of Indian Nations in the United States of America, edited by Carol J. Min-

3321. Park, Charles. “Enrollment: Procedures and Consequences.” American Indian Law Review 3, no. 1 (1975): 109–13. Enrollment is powerful because it determines eligibility for many programs and claims settlements. It also demonstrates that tribes are distinct political entities. 3322. Parker, Linda A. “The Indian Citizenship Act of 1924.” In Between Two Worlds: The Survival of Twentieth Century Indians, edited by Arrell Morgan Gibson, 44–71. Oklahoma City: Oklahoma Historical Society, 1986. At the time of its passage, the Indian Citizenship Act’s impact was largely theoretical and neither Indians nor non-Indians took much notice. Parker considers its later importance and court decisions affecting citizenship and suffrage. 3323. Pearson, Joyce A. McCray. “Red and Black—A Divided Seminole Nation: Davis v. U.S.” Kansas Journal of Law & Public Policy 14 (Spring 2005): 607–38. The Seminole’s slaves became freedmen after the Civil War and the Dosar Barkus and Bruner bands are

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descendants of those freedmen. After denying these bands a school clothing allotment of $125 in 1996, the BIA contended it was following the 1823 act defining Seminole members. Black Seminoles have been excluded from past claims and they want compensation. They also have been denied Certificate of Degree of Indian Blood Cards, denying them most benefits.

Strategies for Survival: American Indians in the Eastern United States, edited by Frank W. Porter, III, 173–209. New York: Greenwood Press, 1986. These Virginia Natives had no reservations or treaty relationships with the U.S., and were not often viewed as “Indian,” yet they remained distinctly so. They felt pressure to merge with whites in a biracial segregated society.

3324. Pingrey, D. H. “Legal View of Racial Discrimination.” American Law Register 39 (February 1891): 69–105. Overview of racial discrimination before and after the passage of the Thirteenth, Fourteenth, and Fifteenth Amendments. One section deals with tribal people, focusing on Elk v. Wilkins. Justices Harlan and Woods filed a dissent arguing once an Indian gave up tribal citizenship then the Fourteenth Amendment applied. If not, then the amendment failed the Indian because that class would have all the burdens of living in a state without any of the benefits.

3329. Roundtree, Helen C. “The Indians of Virginia: A Third Race in a Biracial State.” In Southeastern Indians since the Removal Era, edited by Walter L. Williams, 27–48. Athens: University of Georgia Press, 1979. Includes discussion of Jim Crow and non-Indian efforts, led by Dr. Walter Ashby Plecker, to eliminate special “Indian” status in the 1920s and 1930s by classifying them, along with African Americans, as “colored.”

3325. Porter, Robert B. “The Demise of the Ongwehoweh and the Rise of the Native Americans: Redressing the Genocidal Act of Forcing American Citizenship upon Indigenous People.” Harvard Black Letter Law Journal 15 (Spring 1999): 107–83. It is only proper to subject an individual to the forces of assimilation if he/she consents to the process. Immigrants accepted that premise but tribal people did not. 3326. Posey, Alexander. “Journal of Creek Enrollment Party, 1905.” Chronicles of Oklahoma 46 (Spring 1968): 2–19. Posey was a member of the “Creek Enrollment Field Party of the Commission to the Five Civilized Tribes.” The commission’s function was to search for Creeks whose names appeared on roles but could not be identified, and “Snakes,” members of a Creek faction opposing land allotment. Proper identity was important for determining property rights. 3327. Pratt, Carla D. “Tribes and Tribulations: Beyond Sovereign Immunity and Toward Reparation and Reconciliation for the Estelusti.” Washington and Lee Race and Ethnic Ancestry Law Journal 11 (Winter 2005): 61–132. Advocates micro-reparations for the black Indians who were former slaves of the Five Civilized Tribes. The U.S. forced these slaves into the status of freedmen within the tribal community. Pratt criticizes the tribal leaders for using white racism to alienate these people. 3328. Roundtree, Helen C. “Ethnicity among the ‘Citizen’ Indians of Tidewater Virginia, 1800–1930.” In

3330. Smith, Michael T. “The History of Indian Citizenship.” Great Plains Journal 10 (Fall 1970): 25–35. During the nineteenth century, federal policy was not clear on whether a person disassociated from his or her tribe was to be considered a citizen or what effect citizenship had on an individual’s tribal relationship. Ex Parte Crow Dog, United States v. Kagama, Elk v. Wilkins, and Helen Hunt Jackson’s A Century of Dishonor were catalysts prompting Congress to resolve such confusion. By stating that Indian citizenship status did not conflict with wardship status, United States v. Nice paved the way for the U.S. to grant citizenship to Indians in 1924. 3331. Snowden, John Rockwell, Wayne Tyndall, and David Smith. “American Indian Sovereignty and Naturalization: It’s a Race Thing.” Nebraska Law Review 80, no. 2 (2001): 171–238. Studies the relationship between tribal sovereignty and race by examining cases such as Taney’s opinion in Rogers and Famous Smith. In tribal communities, the issue is determining a community’s membership. These communities are also engaged in discussions of race that affect membership. 3332. “Status of Indians before State and Federal Courts.” Columbia Law Review 14 (November 1914): 587–90. Indians have been called aliens, and because they are not citizens, they are dependent wards. The status of Indians should be divided into those who leave the reservation and those who stay, and those who leave should fall under New York’s jurisdiction. 3333. Stein, Gary C. “The Indian Citizenship Act of 1924.” New Mexico Historical Review 47 (July 1972): 257–74. Attempts to explain why an act that gave citizenship to one-third of Native Americans was relatively

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forgotten and even vilified soon after its passage. Stein attributes the act’s passage to the efforts of Progressives on the U.S. Senate Committee on Indian Affairs. Indian reformers of the day failed to herald these Progressives for their effort.

After a band of Poncas left Indian Territory without permission in 1879, a U.S. District Court judge decided in Standing Bear v. Crook that Indians were persons under the Fourteenth Amendment. Tibbles wrote his account for the Omaha Daily Herald in 1880.

3334. Sturm, Circe Dawn. Blood Politics: Race, Culture, and Identity in the Cherokee Nation of Oklahoma. Norman: University of Oklahoma Press, 2002. Using the Cherokees as a case study, Sturm examines the significance of blood quantum in determining identity. This question of blood goes beyond identity to sovereignty.

3339. Torres, Gerald and Kathryn Milun. “Translating Yonnondio by Precedent and Evidence: The Mashpee Indian Case.” Duke Law Journal 1990 (September 1990): 625–59. The Mashpee of Cape Cod, Massachusetts filed a land claim in 1976 to recover property lost two centuries ago. They used the 1790 Trade and Intercourse Act as the foundation of their case. This case has refocused on the meaning of tribe and the law has no clear way of defining tribe.

3335. Sturm, Circe Dawn. “Blood Politics, Racial Classification, and Cherokee National Identity: The Trials and Tribulations of the Cherokee Freedmen.” American Indian Quarterly 22 (Winter/Spring 1998): 230–58. Article 9 of the 1866 treaty between the Cherokee Nation and U.S. guaranteed full Cherokee citizenship rights to freedmen, but economic factors led the Cherokee Nation to resist granting those rights. Sturm traces the freedmen’s political and legal struggles to gain their rights, including a share of moneys paid to the tribe for lost lands. Key court cases, the Dawes Act, and the Indian Claims Commission are included in the discussion. The same “blood policies” the tribe has used in its efforts against the freedmen’s claims “might be turned against them at some future date.” 3336. Taliman, Valerie. “Termination by Bureaucracy: Membership Denials in the New Economic Era.” Native Americas 19 (Spring/Summer 2002): 8–17. Tribal members claim their civil rights have been violated when a tribal government removes them from tribal rolls. Tribal members must seek justice first in a tribal court and then in a federal court. Tribes claim that bloodlines must remain strong for survival, but blood is not a measure of culture. 3337. TallBear, Kimberly. “DNA, Blood, and Racializing the Tribe.” Wicazo Sa Review 18 (Spring 2003): 81–107. The use of DNA to determine Native American racial and group membership is equated to eugenics and is part of an insidious racialization of Native American identification standards that undermines “tribal cultural and political authority.” Two specific cases are discussed—one involving the Mohegan of New York and the second the Kennewick Man. 3338. Tibbles, Thomas Henry, edited with an introduction by Kay Graber. The Ponca Chiefs: An Account of the Trial of Standing Bear. Lincoln: University of Nebraska Press, 1972.

3340. Trosper, Ronald L. “Native American Boundary Maintenance: The Flathead Reservation, Montana— 1860–1970.” Ethnicity 3 (September 1976): 256–74. Examines the maintenance of the tribal enrollment or citizenship boundary in cases of marriage to outsiders. The tribal government has codified this enrollment boundary under their constitution and tribal ordinance 35A. 3341. Tsosie, Rebecca. “American Indians and the Politics of Recognition: Soifer on Law, Pluralism, and Group Identity.” Law & Social Inquiry 22 (Spring 1997): 359–88. Agrees with Aviam Soifer that cultural pluralism must be protected, but how to do so varies, especially in the case of tribal America. One of the most difficult problems facing tribal America is defining who is Indian and what is a tribe since, in both instances, there are social and political dimensions. Tribal sovereignty makes it difficult for tribal Americans to fit into Soifer’s concepts of cultural pluralism. 3342. Tsosie, Rebecca. “Tribal Membership and ‘Indian Status’: Federal Indian World in the Post-Martinez World.” Native Americas 19 (Spring/Summer 2002): 18–23. Blood quantum has become the standard of measuring Indian identity. Who decides this issue relates directly to tribal sovereignty as tribal courts become the forum for determining tribal membership. 3343. Upchurch, Virgil. “Indians: Probative Value of the Enrollment Records of the Five Civilized Tribes.” Oklahoma Law Review 12 (February 1959): 176–79. Oil and gas lessees sued to quiet title on a Seminole freedman’s allotment, and in Wilson v. Lee Evans Drilling Company the court continued to hold “the enrollment records to be conclusive of the ultimate question of membership in a tribe and the right to an allotment.”

“Indian” Identity, Tribal Enrollment, and U.S./State Citizenship

3344. Velie, Alan R. “Indian Identities in the Nineties.” Oklahoma City University Law Review 23 (Spring and Summer 1998): 189–209. Considers different ways Indian identity is defined in the 1990s, by blood, by culture, by community, and by the law. American Indian writers of note in the U. S. would not be Indians by more restrictive South American standards. 3345. Walker, Francis A. “Indian Citizenship.” The International Review 1 (May–June 1874): 305–26. Since the Indian Office would not do the job of assimilating Indians, and Congress vacillates from sentimental to brutal policies toward them, Walker urges citizenship as the best hope for tribal Americans. 3346. Wilkins, David E. “The Federal Courts and Indigenous Identity.” Western Legal History 13 (Winter/Spring 2000): 83–119. Discusses the different eras of federal Indian policy and the courts’ definition of “Indian.” 3347. Wilkins, David. “The Manipulation of Indigenous Status: The Federal Government as Shape-Shifter.” Stanford Law and Policy Review 12 (Spring 2001): 223–35. The many different statuses that tribal people possess include tribal membership and American citizenship, giving them greater flexibility than others. Despite this benefit, these multiple statuses provide a greater opportunity for courts to be inconsistent when dealing with tribal people. Wilkins proposes a theoretical method that can be applied to ease this problem within the contemporary setting. 3348. Williamson, Terrion L. “The Plight of ‘NappyHeaded’ Indians: The Role of Tribal Sovereignty in the Systematic Discrimination against Black Freedmen by the Federal Government and Native American Tribes.” Michigan Journal of Race & Law 10 (Fall 2004): 233–68. Based on the principle of sovereign immunity that was strengthened in the Martinez case, tribes determine their own membership. Tribal sovereign immunity should be decreased to insure that the freedmen’s decedents have their place in Seminole society.

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3349. Wilson, Walt. “Freemen in Indian Territory during Reconstruction.” Chronicles of Oklahoma 49 (Summer 1971): 230–44. Seminoles had the most success dealing with their freedmen, while Chickasaws and Choctaws had the greatest difficulties. While other tribes granted citizenship to the freedmen, the latter two had not done so by the specified time. By not subsequently removing the freedmen, the federal government violated the 1866 treaty. 3350. Wise, Jennings C. “Indian Law and Needed Reforms.” American Bar Association Journal 12 (January 1926): 37–40. The Indian Citizenship Act in 1924 rendered past Indian legislation obsolete. Tribal people should have the finest legal counsel and should not have to bear the expense of litigation to get what is their own property from the guardian. 3351. Wrone, David R. “The Cherokee Act of Emancipation.” Journal of Ethnic Studies 1 (Fall 1973): 87–90. On February 1, 1863, the Cherokee Nation issued its own emancipation proclamation but its interpretation of the phrase “forever free” differed from Lincoln’s. In the Cherokee world, it translated as the right to farm on unused Cherokee lands. 3352. Young, Mary. “Racism in Red and Black: Indians and Other Free People of Color in Georgia Law, Politics, and Removal Policy.” Georgia Historical Quarterly 73 (Fall 1989): 492–518. Compares and contrasts Georgian attitudes about American Indians and African Americans. Young argues that “by comparison to other free people of color, the Cherokee in Georgia were a privileged people.” Yet Georgians did not feel the need to expel free blacks. 3353. Zissu, Erik Marc. Blood Matters: Five Civilized Tribes and the Search of Unity in the 20th Century. New York: Routledge, 2001. A period of “tribal disintegration” immediately followed the loss of commonly held lands and disbandment of tribal governments when Indian Territory was dissolved and the State of Oklahoma created. The Five Civilized Tribes used a variety of political methods, including ones adopted from nonIndians, to rebuild unity within each tribe.

Chapter 35 Voting and Lobbying

3354. Allen, John H. “Denial of Voting Rights to Reservation Indians.” Utah Law Review 5 (Fall 1956): 247–56. From statehood to 1956, Utah law prohibited “any person living on any Indian or military reservation” the right to vote because they were not considered residents. In 1956, a tribal member from Uintah Indian Reservation requested an absentee ballot and Duchesne County refused the request. The Utah State Supreme Court upheld the state statute claiming inherent tribal sovereignty and federal jurisdiction.

After decades without a formal governing structure, the Cherokee drafted a constitution based on tribal self-determination with a judicial branch replacing the 1839 constitution. The new constitution mandated that the council approve laws to govern all elections. The 1995 elections were contentious and the court heard many election cases, forcing the court to uphold the constitutional protections of separation of powers. 3359. Christman, Henry. “Southwestern Indians Win the Vote.” American Indian 4 (Winter 1948): 6–10. Until 1948, New Mexico and Arizona found state constitutional arguments to deny tribal members the right to vote in those states. The reason was often tribal wardship or guardianship. In Arizona, Roger G. Laveen sought the right to vote and in New Mexico Miguel H. Trujillo wanted the franchise. The states’ actions were racial and discriminatory and violated the Fifteenth Amendment.

3355. Allen, W. Ron. “Gorton’s Lost Crusade: Senator’s Attacks Provoke Tribal Response.” Native Americas 17 (Fall 2000): 32–33. The First American Education Project educates non-Indians about tribal rights. The importance of educating the state’s electorate is so that voters will eject Washington Senator Slade Gorton from the U.S. Senate for his anti-Indian positions. Gorton favored the abolishment of tribal treaty fishing rights.

3360. Corntassel, Jeff J. and Richard C. Wimer III. “American Indian Tribal Government Support of OfficeSeekers from the 1994 Elections.” Social Science Journal 34, no. 4 (1997): 511–27. Tribal governments support nontribal office seekers based on issues not party affiliation. This study was done in Oklahoma and Arizona.

3356. Bee, Robert L. The Politics of American Indian Policy. Cambridge, MA: Schenkman Publishing, 1982. Indian leaders must go to Washington to win what they need for their people. Bee describes this political process, considers strategies tribal leaders have employed to do so and offers suggestions for their benefit.

3361. Ellis, Richard N. “Hispanic Americans and Indians in New Mexico State Politics.” New Mexico Historical Review 53 (October 1978): 361–64. In contrast to surrounding states, Hispanic Americans participated actively in state politics throughout New Mexico’s history, but the same cannot be said about American Indian residents. Ellis attributes this contrast to New Mexico’s deliberate denial of voting and citizenship rights to Natives until the 1940s.

3357. Blair, Jack. “Demanding a Voice in Our Own Best Interest: A Call for a Delegate of the Cherokee Nation to the United States House of Representatives.” American Indian Law Review 20, no. 1 (1995–1996): 225–43. Historical study of the origins of this concept. 3358. Carroll, Ahnawake. “Cherokee Nation Elections of 1995.” Tribal Law Journal 3 (2002–2003): online. http://tlj.unm.edu/articles/

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3362. Engstrom, Richard L. and Charles L. Barrilleaux. “Native Americans and Cumulative Voting: The Sisseton–Wahpeton Sioux.” Social Science Quarterly 72 (June 1991): 388–93. In 1988, the Sisseton School District board created cumulative and staggered at-large elections. This method of voting is a potential remedy to prevent the dilution of many at-large election schemes. 3363. “Excerpts from Fletcher v. United States.” Kansas Journal of Law & Public Policy 9 (Summer 2000): 792–94. Copy of the case that four Osage members brought in 1997 seeking their right to vote. They challenged the validity of the 1881 Osage constitution. 3364. Franco, Jere’. “Empowering the World War II Native American Veteran: Postwar Civil Rights.” Wicazo Sa Review 9 (Spring 1993): 32–37. Some used the vote as a weapon, breaking the long-standing tribal belief that nontribal elections did not have any consequences for tribal members. With that changing mindset, Native Americans became a formidable force in voting and lobbying. 3365. Frizzell, George E. “The Politics of Cherokee Citizenship, 1898–1930.” North Carolina Historical Review 51 (April 1984): 205–30. Local officials often denied members of the Eastern Band citizenship and voting rights. They did so because of racial discrimination, the Cherokees’ tendency to vote Republican, and local resentment because of the Cherokees’ special status and relationship with the federal government (including their exemption from local taxation). Cherokees made little effort to vote until their political and economic conditions worsened after the Civil War. They obtained recognition as citizens by 1930 but did not realize gains in their suffrage effort until after World War II. 3366. Harjo, Suzan Shown. “In Defense of Native Sovereignty: Indian Advocacy in the American Body Politic.” Native Americas 15 (Summer 1998): 34–38. Tribal nations must be very careful when addressing Congress because many legislators perceive one articulate tribal leader’s views as representative of all tribes’ viewpoints. 3367. Houghton, N. D. “The Legal Status of Indian Suffrage in the United States.” California Law Review 19 (July 1931): 507–20. After Congress passed the 1924 Indian Citizenship Act, the Arizona Supreme Court in Porter v. Hall (1928), ruled that Indians living on reservations were not eligible to vote. Doing so struck down voting equality found in the congressional statute since Amer-

ican Indians were not state residents according to the state constitution, but federal wards. Based on federal case law, there is room for ongoing discrimination against tribal voters since states determine voting qualifications. 3368. “Indian Law: The Application of the One-Man, OneVote Standard of Baker v. Carr to Tribal Elections.” Minnesota Law Review 58 (March 1974): 668–76. The Standing Rock Sioux people sought an injunction to stop the tribal election claiming that the districts were misrepresented, thus violating the oneman, one-vote rule in Baker. The Eighth Circuit Court of Appeals refused to intervene, relying on ICRA and noting that there is no congressional restriction on tribal authority. 3369. Jackson, Danna R. “Eighty Years of Indian Voting: A Call to Protect Indian Voting Rights.” Montana Law Review 65 (Summer 2004): 269–88. The one-man-one-vote principle has often been ignored in Indian Country. To ensure that tribal votes are not diluted, when the Voting Rights Act is scheduled to be renewed in 2007, Congress should amend the act. 3370. Kane, Albert E. “The Negro and the Indian: A Comparison of Their Constitutional Rights.” Arizona Law Review 7 (Spring 1966): 244–51. The administration of Alabama voting laws was discriminatory toward Black voters, while Arizona laws were discriminatory toward tribal voters. In Porter v. Hall, decided in 1928, the Arizona Supreme Court ruled that Indians had no right to vote because they were under the specific guardianship language. Twenty years later, Harrison v. Laveen overturned the earlier case. With the passage of the 1964 Civil Rights Act, both groups were guaranteed equal protection, but many tribal members have preferred dealing with the federal government than the state because, like African Americans, they fear prejudicial treatment. Off-reservation tribesmen have the same protections as Native Americans, but on the reservation are subject to tribal and federal law. 3371. Kennedy, Gary D. “Tribal Elections: An Appraisal after the Indian Civil Rights Act.” American Indian Law Review 3, no. 2 (1975): 497–508. Discusses the cases that stemmed from ICRA that altered tribal voting patterns and resulted in reapportionment of tribal voting districts. 3372. Luna, Eileen M. “Mobilizing the Unrepresented: Indian Voting Patterns and the Implications for Tribal Sovereignty.” Wicazo Sa Review 15 (Spring 2000): 91–105. Historic poverty, lack of technology, and actions to bar them from the polls have prevented Native

Voting and Lobbying

Americans from voting. The best approach is one of personalized mobilization. Tribal voters also have to reach out to other ethnic voters. 3373. McCool, Daniel. “Indian Voting.” In American Indian Policy in the Twentieth Century, edited by Vine Deloria, Jr., 105–33. Norman: University of Oklahoma Press, 1985. Discusses Indian efforts to secure voting rights and justifications used to deny those rights. Justifications have included references to constitutional ambiguities as well as political, economic, cultural, and racist arguments. McCool then studies their increased voter turnout over time, with data from Arizona between 1948 and 1980. Indians have affected elections when they have voted as a bloc in close races. 3374. Michel, Karen Lincoln. “Fielding a New Clout: Indian Power and Party Politics.” Native Americas 15 (Fall 1998): 10–17. In the 1990s, tribal leaders, often using casino monies, began to lobby Congress. In this new tribal political renaissance, Democratic candidates received 85 percent of the tribal dollars. This new resurgence is important, as attempts have been made in Congress to weaken tribal sovereignty. 3375. Michel, Karen Lincoln. “Working the System: Profile of Frank Lamere, Democratic Party Activist.” Native Americas 15 (Fall 1998): 18–21. Jesse Jackson sparked Winnebago Frank LaMere’s interest in national politics and his work has landed him a position on the Democratic National Committee, along with Mary Thomas, governor of the Gila River Indian Community. LaMere has helped others and opened the door for other Natives to move into positions in the two major parties. 3376. Mumford, Jeremy. “Métis and the Vote in 19thCentury America.” Journal of the West 39 (Summer 2000): 38–45. Prior to the Civil War, when only white men could vote, Métis often did vote. Later, as other Americans were gaining voting rights, many Métis and their children lost them. 3377. Pacheco, Michael M. “Finality in Indian Tribunal Decisions: Respecting Our Brother’s Vision.” American Indian Law Review 16, no. 1 (1991): 119–202. Courts attempted to keep tribal people’s right to the franchise, but it has been through the 1965 Voting Rights Act that tribal people have exercised greater control over their own franchise. 3378. Peterson, Geoff. “Native American Turnout in the 1990 and 1992 Elections.” American Indian Quarterly 21 (Spring 1997): 321–31.

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Statistical analysis that finds, tentatively, that Native American voter turnout is lower than for other groups. Peterson encourages greater Native participation in elections stressing the potential political power they could exercise in western states with small populations. 3379. Phelps, Glenn A. “Mr. Gerry Goes to Arizona: Electoral Geography and Voting Rights in Navajo Country.” American Indian Culture and Research Journal 15, no. 2 (1991): 63–92. Tribal sovereignty and tribal citizenship have differing goals. The former is less ambiguous than suffrage within the tribal nation. The 15th Amendment and the 1965 Voting Rights Act removed tribal blockades to voting in local and state elections. Phelps examines Apache County, Arizona where most residents are reservation or nonreservation Navajo. Arizona attempted to dilute the tribal vote through gerrymandering. Intergovernment arrangements between tribes and counties could solve common problems. 3380. Roca, Paul M. “Congressional Representation and Indians Not Taxed.” George Washington Law Review 9 (March 1941): 595–611. As required by law, President Franklin Roosevelt sent a tabulation of the U.S. population to Congress for the reapportionment of the U.S. House. The inclusion of Indians not taxed as opposed to Indians taxed may give the future House of Representatives a different look. Because Native Americans are now subject to federal income taxes that means that all of them will be included. 3381. Russell, Scott C. and Eric Henderson. “The 1994 Navajo Presidential Election: Analysis of the Election and Results of an Exit Poll.” American Indian Quarterly 23 (Spring 1999): 23–37. The 1994 election was a crucial event in Navajo politics as a gambling referendum was on the ballot. Hale and Zah vied to be elected president. Hale won by attracting Peter McDonald’s supporters and maintaining his primary election support. 3382. Simpson, Garrett William. “Constitutional Law: Reapportionment—The Navahos and the Trials of Apache Country.” American Indian Law Review 3, no. 2 (1975): 445–58. The reality is that in Apache County, Arizona, Navajos are beginning to exercise their right to vote in county elections, while local whites complain that Navajos cannot be citizens and at the same time have non-taxable property. This situation eventually forced the reapportionment of the county voting districts.

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3383. Stevens, Carl. “Reapportionment; One Man, One Vote, as Applied to Tribal Government.” American Indian Law Review 2 (Summer 1974): 137–46. Standing Rock Sioux tribal members filed a Fourteenth Amendment suit. Chairman Melvin White Eagle in White Eagle v. One Feather wanted to eliminate a voting disparity between districts and incorporate the principle of one-man-one-vote. 3384. Svingen, Orlan. “Jim Crow, Indian Style.” American Indian Quarterly 11 (Fall 1987): 275–86. The General Citizenship Act of 1924 failed to secure civil rights, including voting rights, for Native Americans. Through a series of legislative acts, Montana had denied Indian citizens the right to vote prior to 1924, and it continued to do so thereafter by implementing Jim Crow-like methods. Windy Boy v. Big Horn County in 1986 weakened but did not end state efforts to disenfranchise Native voters. 3385. Trahant, Mark N. “Seeking Representation: Native Electoral Strategies in the U.S.” Native Americas 13 (Fall 1996): 30–31. A handful of tribal leaders are spreading the message that tribal people must vote since Congress has such an influence on tribal lives. South Dakota Representative Ben Reifel was elected in 1960 as a Republican and served several terms, setting the precedent for other tribal leaders to run for office or for non-tribal candidates to take the tribal vote seriously. 3386. Turner, Charles C. “Rhetorical Bipartisanship: National Party Platforms and American Indian Politics.” American Indian Culture and Research Journal 26, no. 1 (2002): 107–19. Compares and contrasts Democrat and Republican approaches to American Indian issues in their platforms, and divides those approaches into historical eras. The two parties are more similar than different in how they have addressed Native American issues in words, but in actions the contrasts are greater. 3387. Weber, Kenneth R. “Demographic Shifts in Eastern Montana Reservation Counties: An Emerging Amer-

ican Political Power Base?” Journal of Ethnic Studies 16 (Winter 1989): 101–16. From 1950 to 1980, Montana’s white population has moved out of state and shifted its in state numbers from rural to urban. There has been an increase in tribal population in six eastern rural counties where reservations are located. Depending on the dynamics of white–tribal politics, the tribal population may approach parity with the white population and then even rise above it. 3388. Wilson, Paul T. “Delegates of the Five Civilized Tribes to the Confederate Congress.” Chronicles of Oklahoma 53 (Fall 1975): 353–66. In accordance with the terms of their treaties with the Confederacy, representatives from the Cherokee, Chickasaw, and Choctaw tribes took seats in the Confederate House of Representatives. Indians had not previously been allowed to participate in a white legislature. 3389. Wolfley, Jeanette. “Jim Crow, Indian Style: The Disenfranchisement of Native Americans.” American Indian Law Review 16, no. 1 (1991): 167–202. Examines the historical state bans on tribal voting as well as single member voting districts to dilute tribal voters. The 1965 Voting Rights Act changed the nation’s politics, but tribal communities still struggle to gain meaningful voting rights and participation in the political process. 3390. Worth, Murlene Jean. “Constitutional Law: Restriction of Indian Suffrage by Residence Qualification.” Oklahoma Law Review 11 (February 1958): 67–69. Allen v. Merrell determined that a Utah law stating that “any person living upon an Indian reservation” was not eligible to vote in state elections until the individual gained residence by living off the reservation was reasonable and was not a denial of suffrage. The court determined that Native Americans are wards of the federal government “and have little interest in state affairs.”

Chapter 36 Civil Rights Legislation, Litigation, and Individual Rights

3391. Alstad, Milva M. “Martinez v. Santa Clara Pueblo: The Scope of Indian Equal Protection.” Utah Law Review, no. 3 (1976): 547–57. Julia Martinez’s class action suit challenged the 1939 tribal enrollment ordinance that prohibited the enrollment of her daughter. The Tenth Circuit Court of Appeals decided that Martinez’s interests were stronger than the tribe’s cultural needs, thus creating an equal protection test.

tinez, but was brought to the surface again in Bowman v. Lewis, which involved Zuni Pueblo and wrongful termination of employment. The plaintiffs sued the tribe, but there are no civil rights protections on tribal lands. 3395. Collins, Richard B. “Petitioner’s Brief—Reargument of Santa Clara Pueblo v. Martinez.” Kansas Journal of Law & Public Policy 14 (Fall 2004): 67–78. ICRA was intended to prevent federal intrusion into tribal political affairs by extending constitutional protections. Instead, the Supreme Court went on a new path. Federal jurisdiction should remain over the case because of violations of ICRA.

3392. Beaver, Jennifer B. “Political Advocacy and Freedom of Expression under the Indian Civil Rights Act of 1968.” Arizona State Law Journal, no. 3 (1976): 479–98. ICRA restricted tribal nations’ right to determine their own cultural evolution. Freedom of expression has not been before the courts. This poses an interesting legal problem for the courts to determine the scope of individual rights that may be in conflict with the collective will of the tribe.

3396. Coulter, Robert T. “Federal Law and Indian Tribal Law: The Right to Civil Counsel and the 1968 Indian Bill of Rights.” Columbia Survey of Human Rights Law 3 (January 1971): 49–93. Does the meaning of the right of due process have the same meaning in the 1968 law as in the Fifth and Fourteenth Amendments? Is it fair to impose Western legal procedures on culturally different groups? The right to counsel would disrupt tribal court procedures under existing reservation due process.

3393. Burnett, Donald L., Jr. “An Historical Analysis of the 1968 ‘Indian Civil Rights’ Act.” Harvard Journal on Legislation 9 (May 1972): 557–626. North Carolina Senator Sam Ervin attached this legislation as a rider to the 1968 Civil Rights Act. Title II became ICRA. A major concern was tribal council abuses of power, especially in the area of religious freedom, and peyote use in particular. Tribal responses ranged from silence to support. Most sympathized, but feared major court actions and some wanted to be excluded.

3397. Davisson, Russell W. “Indian Law—Civil Rights— Federal Jurisdiction—When Tribal Remedies Effectively Exhausted Federal Courts Have Jurisdiction to Hear Claims Arising under the Indian Civil Rights Act.” University of Kansas Law Review 22 (Spring 1974): 461–70. The Goshute held a recall election and the tribal election committee did not certify the results because of due process violations. The plaintiffs in McCurdy v. Steele brought suit in federal court claiming their due process rights had been violated. This case raises the question of whether the federal courts interfered with the boundaries of tribal sovereignty

3394. Byran, Jennifer S. “Civil Rights on Reservations: The Indian Civil Rights Act and Tribal Sovereignty.” Oklahoma City University Law Review 25 (Spring and Summer 2000): 491–509. Since tribes are sovereigns they do not have to follow all federal rules and regulations. The conflict between ICRA and tribal sovereignty began in Mar355

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and infringed on ICRA. The court took the case based on individual civil rights. 3398. Deegan, Michael N. “Indian Law–Jurisdiction–Closing the Door to Federal Court.” Land and Water Law Review 14, no. 2 (1979): 625–34. Congress was very clear in ICRA that tribal courts would be the forum for dispute resolution and federal review would take place in habeas corpus cases. The Supreme Court in Martinez dismissed any jurisdictional problems because of Congress’s clear intent to protect tribal sovereignty. The case stands as a monument to faith in tribal governance. 3399. de Raismes, Joseph. “The Indian Civil Rights Act of 1968 and the Pursuit of Responsible Tribal SelfGovernment.” South Dakota Law Review 20 (Winter 1975): 59–106. ICRA was a good piece of legislation, but battles for control over non-Indians living in Indian Country are not over. Broadly constructing the act and providing tribal members free access to federal courts would insure civil rights protection to all. 3400. “Equal Protection under the Indian Civil Rights Act: Martinez v. Santa Clara Pueblo.” Harvard Law Review 90 (January 1977): 627–36. Tribal individuals have the same rights and privileges as others in their relations with the federal and state governments, but these rights do not govern the relationship between individual Indians and their tribal governments. Santa Clara Pueblo’s economic interests were balanced against the individual’s interest in gaining membership by requiring a compelling interest and applying “a stricter standard for review of sex discrimination than has ever been adopted by the majority of the Supreme Court.” The court should apply a bifurcated approach to the ICRA equal protection clause. 3401. Ericson, Robert and D. Rebecca Snow. “The Indian Battle for Self-Determination.” California Law Review 58 (March 1970): 445–90. ICRA was a compromise between assimilation and separation policies. The act provides for some selfgovernment, but it places constitutional restrictions on tribal exercise of sovereignty. Separate tribal standards were replaced with similar state and federal standards of jurisprudence prohibiting tribal governments from interfering with individual civil rights. Courts now have to rule on this changed policy in light of Williams v. Lee that recognized Indian selfrule as a barrier to state encroachment. Courts cannot decide the future; Congress must do that, forcing tribes to take advantage of every opportunity in this evolutionary process.

3402. Ferguson, Christina D. “Martinez v. Santa Clara Pueblo: A Modern Day Lesson on Tribal Sovereignty.” Arkansas Law Review 46, no. 1 (1993): 275–301. In Oliphant, the court attacked tribal sovereignty and, in Martinez, the court upheld tribal sovereignty and attacked the rights of an individual tribal member. 3403. Freitag, Christian M. “Putting Martinez to the Test: Tribal Court Disposition of Due Process.” Indiana Law Journal 72 (Summer 1997): 831–67. Studies due process to determine how ICRA is working in tribal courts. The Navajo Nation began publishing tribal court opinions, as did the Oklahoma Tribal Court Reporter, and the Indian Law Reporter. “[T]he most striking point learned in the course of this Project has been the infrequency with which tribal courts are faced with issues concerning civil rights provisions contained in Title II of the ICRA.” 3404. Fretz, Burton D. “The Bill of Rights and the American Indian Tribal Governments.” Natural Resources Journal 6 (October 1966): 581–616. When a tribal entity enters a state court that court must demonstrate great flexibility in determining whether a tribal official is acting under the guise of tribal law or as a valid exercise of authority. 3405. Gover, Kevin and Robert Laurence. “Avoiding Santa Clara Pueblo v. Martinez: The Litigation in Federal Court of Civil Actions under the Indian Civil Rights Act.” Hamline Law Review 8 (October 1985): 497–542. “Civil actions under the ICRA would henceforth be brought in tribal court to be finally determined as there could be no appeal to the federal system.” Despite this contention, tribal civil suits have landed in federal court. The authors recommend a congressional solution to end this problem. 3406. Grab, Susan Evelyn and Katherine M. Zittel. “Tribal Sovereign Immunity and Its Effect on the Indian Civil Rights Act.” Law & Anthropology 6 (1991): 109–30. Martinez forced many to question the ability of tribal courts to protect members’ civil rights. The U.S. Commission on Civil Rights investigated violations in 1986, focusing on sovereign immunity and separation of powers. The investigation heard stories of police brutality, election tampering, and denial of due process. Since the tribal council has the final say in all matters, the judiciary lacks independence. Better police training is another way to assist civil rights protection. An alternative is to have Congress reverse Martinez.

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3407. Granen, Michael R. and Douglas E. Somers. “Indian Bill of Rights.” Southwestern University Law Review 5 (Spring 1973): 139–64. The 1868 treaty between the Navajos and the U.S. provided the Navajos authority to remove non-Navajos from the reservation. In 1968, the Navajo Tribal Council invoked that authority and removed the non-Indian legal service director who filed Dodge v. Nakai, claiming the tribe acted without due process. The passage of the Indian Bill of Rights in 1968 coincided with this case and the federal courts had jurisdiction to hear this case despite the Navajo argument that their authority derived from the past treaty. This federal court decision is an intrusion into tribal sovereignty and a blow to self-determination.

3412. “Indians—Criminal Procedure: Habeas Corpus as an Enforcement Procedure under the Indian Civil Rights Act of 1968.” Washington Law Review 46 (May 1971): 541–54. Habeas corpus is not a proper legal concept to get tribal ICRA cases into federal court. A tribal court of appeals would be a better forum.

3408. Hardin, John T. “Santa Clara Pueblo v. Martinez: Tribal Sovereignty and the Indian Civil Rights Act of 1968.” Arkansas Law Review 33 (Summer 1979): 399–421. This was the first suit brought to the Supreme Court under ICRA. It was a gender discrimination case where a member’s daughter was denied enrollment in Santa Clara based on a 1939 tribal ordinance. The problems that stem from Martinez originated in two conflicting governing policies—assimilation and self-rule. Though the Supreme Court rejected the case based on a tribe’s sovereign immunity, it raised legal questions for the future.

3413. Ingber, Jeffrey. “Equal Protection as Applied to Tribal Membership and Enrollment Provisions.” New York University Review of Law and Social Change 7 (Winter 1978): 15–60. ICRA was intended to protect tribal members from their tribal governments’ violations of their civil rights. Tribal leaders were apathetic during hearings, calling the bill premature, and the Pueblos were the loudest in their dissent, asking for an exemption. They claimed that going from their theocratic system to one-man-one-vote would create confusion. After passage of the act, the courts began to hear cases involving blood quantum and membership.

3409. Holmes, Dennis R. “Political Rights under the Indian Civil Rights Acts.” South Dakota Law Review 24 (Spring 1979): 419–46. Criticizes the Supreme Court’s ruling in Santa Clara Pueblo v. Martinez for upholding tribal sovereign immunity, while at the same time preventing tribal members from suing for “declaratory and injunctive relief for alleged violations of rights” that ICRA was intended to protect.

3414. Jeffery, Robert C., Jr. “The Indian Civil Rights Act and the Martinez Decision: A Reconsideration.” South Dakota Law Review 35, no. 3 (1990): 355–71. Chronicles nineteen categories of civil rights denials, ranging from police brutality to tribal sovereign immunity. The Martinez court was guilty of creating inequality by making a decision based on “ancestral discrimination.”

3410. “Implications of Civil Remedies under the Indian Civil Rights Act.” Michigan Law Review 75 (November 1976): 210–35. Native Americans view ICRA as weakening tribal self-rule and imposing western standards of justice on tribal governments. As a result of the act, Indians and non-Indians can sue a tribal government for civil rights violations. Federal courts should remove themselves as much as possible from tribal judicial practices and not expose tribal governments to western legal practices 3411. “The Indian Bill of Rights and the Constitutional Status of Tribal Governments.” Harvard Law Review 82 (April 1969): 1343–73.

Tribal governments have exceeded the constitutional limits that apply to the federal and state governments for several reasons, including financial and cultural ones. In 1968, as part of the Civil Rights Act, Congress used its plenary power, violated tribes’ immunity doctrine, and imposed on tribal courts an Indian Bill of Rights copied from the Constitution’s amendments.

3415. Johnson, Ralph W. and Susan E. Crystal. “Indians and Equal Protection.” Washington Law Review 54 (June 1979): 587–631. Equal protection challenges are more common in the courts, many stemming from ICRA. Indian equal protection cases can originate in the Constitution or ICRA. They are different than non-Indian equal protection cases since federal courts do not like to impose any limitations on tribal equal protection cases. 3416. Jones, Cliff A. “Remedies: Tribal Deprivation of Civil Rights: Should Indians Have a Cause of Action under U.S.C. §ß 1983.” American Indian Law Review 3, no. 1 (1975): 183–95. Omissions in ICRA, including the pursuit of claims against tribal officers and the exhaustion of

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tribal remedies, have dampened some of the enthusiasm. Tribes fear that the intrusion of too many western legal concepts might have negative affects on tribal culture. 3417. Laurence, Robert. “Federal Court Review of Tribal Activity under the Indian Civil Rights Act.” North Dakota Law Review 68, no. 3 (1992): 657–74. A version of Laurence’s remarks to the Senate Select Committee on Indian Affairs arguing that an extension of ICRA must be tied to a complementary reversal of Oliphant and must be done by admitting that tribal governments possess inherent sovereignty. 3418. Laurence, Robert. “Martinez, Oliphant and Federal Court Review of Tribal Activity under the Indian Civil Rights Act.” Campbell Law Review 10 (Summer 1988): 411–38. Any changes to ICRA must remain flexible “to advance tribal sovereignty” and Native Americans’ personal rights. The time has come for Congress to reverse Oliphant. 3419. Laurence, Robert. “A Quincentennial Essay on Martinez v. Santa Clara.” Idaho Law Review 28, no. 2 (1991–1992): 307–47. After several decades, ICRA and Martinez still evoke scholarly debates. Now tribal people have joined these debates. So too has the U.S. Commission on Civil Rights that wrote the U.S. failed to consider the practical application of ICRA’s provisions. 3420. Lazarus, Arthur, Jr. “Title II of the 1968 Civil Rights Act: An Indian Bill of Rights.” North Dakota Law Review 45 (Spring 1969): 337–52. Congress’s bringing a Bill of Rights to Indian Country by statute and selecting the rights to extend is contrary to American constitutional practice. The law was an attempt to increase tribal sovereignty by invigorating local government, but, ironically, it also increased the dominant institution’s invasion into Indian lives. 3421. Leeds, Stacy L. “Decision and Order of the American Indian Nations Supreme Court for Santa Clara Pueblo v. Martinez.” Kansas Journal of Law & Public Policy 14 (Fall 2004): 91–96. This moot court opinion contends that the Supreme Court was correct in Martinez that a tribe had an exclusive right to define tribal membership and that federal courts have no authority “to review tribal government actions.” Instead of following the court’s reasoning in Martinez, Leeds reasons that tribal self-determination excludes federal interference in tribal government membership issues.

3422. Limas, Vicki J. “Employment Suits Against Indian Tribes: Balancing Sovereign Rights and Civil Rights.” Denver Law Review 70, no. 2 (1993): 359–92. Tribal employment disputes are brought before tribal courts under ICRA, but courts frequently dismiss on grounds of sovereign immunity. With bills being introduced to force greater tribal court compliance, it makes sense for tribal governments to institute fair practices for tribal employees to insure that Congress does not intervene and mandate federal review of tribal employment suits. 3423. Lindstrom, Vieno. “Constitutional Law: Santa Clara Pueblo v. Martinez: Tribal Membership and the Indian Civil Rights Act.” American Indian Law Review 6, no. 1 (1978): 205–16. Supports the decision, claiming it will reinforce tribal forums as the defining institutions to resolve tribal membership issues. Tribal governments have wanted this power and now they have it. 3424. Lynch, Judy D. “Indian Sovereignty and Judicial Interpretations of the Indian Civil Rights Act.” Washington University Law Quarterly, no. 3 (Summer 1979): 897–918. Before ICRA, Congress had to specifically enact legislation that included tribes. With the act’s passage, Congress applied constitutional rights to tribal Americans. Pre- and post-ICRA court decisions are reviewed. 3425. McCarthy, Robert J. “Civil Rights in Tribal Courts: The Indian Bill of Rights at Thirty Years.” Idaho Law Review 34, no. 3 (1998): 465–515. Examines tribal court operations from separation of powers to enumerated rights and concludes that tribal courts continue to operate as they did prior to Martinez. Tribal court judges realize ICRA was not intended to displace tradition and they look to federal court decisions only when guidance is required. 3426. Miller, Brian D. “Address of Deputy General Counsel Brian D. Miller, U.S. Commission on Civil Rights, Before the Federal Bar Association’s 13th Annual Indian Law Conference.” American Indian Law Review 14, no. 2 (1986): 359–63. Brief discussion of the commission’s ICRA project. 3427. Molander, Susan Sanders. “Indian Civil Rights Act and Sex Discrimination—Martinez v. Santa Clara Pueblo.” Arizona State Law Journal, no. 1 (1977): 227–39. ICRA guarantees due process and equal protection in tribal government procedures, but little attention was given toward developing standards to follow.

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The U.S. Court of Appeals for the Tenth Circuit weighed on the side of the tribal membership ordinance over a tribal membership claim.

on reservations, with focus on such issues as criminal and juvenile law, prisoners’ rights, jurisdiction, family law, civil rights, and social services.

3428. Monette, Richard. “Environmental Justice and Indian Tribes: The Double-Edged Tomahawk of Applying Civil Rights Laws in Indian Country.” University of Detroit Mercy Law Review 76 (Spring 1999): 709–44. Title VI of the 1964 Civil Rights Act provides an interesting problem for tribes because this article pertains to the Fourteenth Amendment and the Bill of Rights, neither of which apply to tribes. Congress and the Supreme Court have construed the Commerce Clause to exercise “colonial powers against tribes in Indian Country.”

3433. Probasco, Robert D. “Indian Tribes, Civil Rights, and Federal Courts.” Texas Wesleyan Law Review 7 (Spring 2001): 119–55. Ever since Martinez, Indian people have reported very few tribal civil rights violations. Their greatest concern is that the tribal judiciary is insufficiently independent from the other tribal branches of government. The Supreme Court attacked tribal sovereignty to insure that in Oliphant non-Indians would not be subject to tribal jurisdiction.

3429. Muehlen, Mary L. “An Interpretation of the Due Process Clause of the Indian Bill of Rights.” North Dakota Law Review 51 (Fall 1974): 191–204. Due process is an important part of ICRA, raising the question of should tribal courts analyze it according to the Fifth and Fourteenth Amendments? Tribal judges should interpret due process as it fits a situation and not by western standards. 3430. Muskrat, Jerry. “Recommendations of the American Indian Policy Review Commission.” In New Directions in Federal Indian Policy: A Review of the American Indian Policy Review Commission, 99–113. American Indian Studies Center: University of California Press, 1979. The policy review commission failed to address the issues stemming from ICRA. The act was not intended as a general waiver of sovereign immunity and Congress should correct this oversight while reducing federal courts’ authority. Tribal members were not initially supporters of ICRA, but their support has been growing. 3431. Pearldaughter, Andra. “Constitutional Law: Equal Protection: Martinez v. Santa Clara Pueblo—Sexual Equality under the Indian Civil Rights Act.” American Indian Law Review 6, no. 1 (1978): 187–204. The court’s decision in Martinez brought some western legal concepts into tribal life that will make cultural autonomy difficult. The federal courts have defined culture and who should preserve it. The courts are defining sovereignty while acting in an insensitive manner toward sexual values. 3432. Pommersheim, Frank and Anita Remerowski. Reservation Street Law: A Handbook of Individual Rights and Responsibilities. Rosebud, SD: Sinte Gleska College Press, 1979. Handbook intended for student and community use explaining individual rights and responsibilities

3434. Reiblich, G. Kenneth. “Indian Rights under the Civil Rights Act of 1968.” Arizona Law Review 10 (Winter 1968): 617–48. Titles II–VII of the 1968 Civil Rights Act pertain to tribes. Representative Wayne Aspinall opposed passage, fearing that treaty rights might be destroyed. There are potential legal problems inherent in the act such as equal protection objections and the need for flexibility in establishing tribal codes. It is wrong to force Section II on the tribes. 3435. Rogues, Raymond S. and Phillip Lujan. “Natural Law, Santa Clara, and the Supreme Court.” Journal of Ethnic Studies 9 (Fall 1981): 71–77. Pueblo law stressed the importance of religious training, while the U.S. system emphasized that fundamental law and popular liberties were fused in the U.S. Constitution. The Supreme Court upheld Santa Clara’s right to determine group membership and that decision infringed on the individual liberties found in the U.S. Constitution. 3436. Rosen, Mark D. “Multiple Authoritative Interpreters of Quasi-Constitutional Federal Law: Of Tribal Courts and the Indian Civil Rights Act.” Fordham Law Review 69 (November 2000): 479–591. Due process is different in tribal courts and they do not follow western standards. Therefore, “ICRA’s regime of multiple authoritative interpreters has worked well,” and Congress should not amend the act to force more western legal traditions on the courts. 3437. Schusky, Ernest L. “American Indians and the 1968 Indian Civil Rights Act.” American Indigena 29 (April 1969): 369–76. North Carolina Senator Sam J. Ervin, chairman of Constitutional Rights Senate sub-committee, had an interest in both American Indians and constitutional law, and the 1968 legislation included many tribal sections. The tribal response was less than enthusiastic because they were not consulted.

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3438. Skibine, Alex Tallchief, “Respondent’s Brief—Reargument of Santa Clara Pueblo v. Martinez.” Kansas Journal of Law & Public Policy 14 (Fall 2004): 79–90. ICRA is “a flagrant attempt to impose Western and non-Indian concepts of fairness and justice on tribal governments.” The Supreme Court was correct in rejecting Martinez’s claim and in doing so, defended tribal sovereignty. 3439. Smith, Kaighn, Jr. “Civil Rights and Tribal Employment.” Federal Lawyer 47 (March/April 2000): 34–43. The popular opinion since Santa Clara Pueblo v. Martinez is that tribes can successfully discriminate against individual rights. The federal courts have sided with tribal sovereignty over individual rights, but that might change if tribes do not protect their gains, especially in employment practices. 3440. Sommer, Tiane L. “Exhaustion of Tribal Remedies Required for Habeas Corpus Review under the Indian Civil Rights Act.” American Indian Law Review 11, no. 1 (1983): 57–76. ICRA establishes a very strong defense for exhausting all tribal remedies. Now tribal courts are growing stronger and strengthening the tribal exhaustion remedy. 3441. Stetson, C. L. “Tribal Sovereignty: Santa Clara Pueblo v. Martinez: Tribal Sovereignty 146 Years Later.” American Indian Law Review 8, no. 1 (1980): 139–59. Examines both the sexual discrimination and the defense of tribal sovereignty issues that spring from Martinez. 3442. Stevens, Carl. “Remedies: Indian Civil Rights Act— Exhaustion of Tribal Remedies Prior to Removal to Federal Court.” American Indian Law Review 3, no. 1 (1975): 169–82. With little case law for the courts to follow regarding questions pertaining to ICRA, the doctrine of tribal court exhaustion should be thoroughly pursued before federal courts hear cases pertaining to this act. 3443. Svensson, Frances. “Liberal Democracy and Group Rights: The Legacy of Individualism and Its Impact on American Indian Tribes.” Political Studies 27, no. 3 (1979): 421–39. Tribal Americans have a treaty-fostered communalism. Individual human rights are crucial, but so too are the rights of those who want to remain part of a communal society. 3444. Swentzell, Rina. “Testimony of a Santa Clara Woman.” Kansas Journal of Law & Public Policy 14, no. 1 (Fall 2004): 97–102.

Provides a human touch to the decision as Swentzell retells how Martinez has affected her children, especially her daughters and granddaughters. She adds that Santa Clara Pueblo will enroll illegitimate children, forcing many women to refuse to marry fathers, and that the assimilation process was well under way when the case was decided. 3445. “Tribal Sovereignty: Another Look.” Washington University Law Quarterly, no. 3 (1975): 815–23. The Eastern Band of Cherokee rescinded a 1960 land agreement ten years later. The lower federal court agreed with the heir William Saunooke, but the appeals court sided with tribe, citing that ICRA was not intended to abolish tribal custom. 3446. Valencia-Weber, Gloria. “Santa Clara Pueblo v. Martinez: Twenty-five Years of Disparate Cultural Visions: An Essay Introducing the Case for Reargument Before the American Indian Nations Supreme Court.” Kansas Journal of Law & Public Policy 14 (Fall 2004): 49–66. As the first and last case to rule on ICRA, the 1978 Martinez case remains important legally and culturally and has generated conflict. The Supreme Court’s decision in favor of the tribe was a major federal recognition of tribal sovereignty. 3447. Vogt, Peter. “Enforcement of the Indian Civil Rights Act by Tribal Courts: A General Overview.” Law & Anthropology 6 (1991): 81–93. ICRA was to provide civil rights for tribal reservation residents. Instead this federal law is interpreted in tribal courts, based on Martinez, and that creates critics. In reviewing tribal cases found in the Indian Law Reporter, one concern is separation of powers when a tribal member sues a member of the tribal council. Reform proposals include placing tribal civil rights issues in state courts and a federal court of Indian appeals. 3448. Warren, John S. “An Analysis of the Indian Bill of Rights.” Montana Law Review 33 (Summer 1972): 255–65. Title II of the 1968 Civil Rights Act became know as ICRA. Title II was to achieve the same effects as the Fourteenth Amendment. Based on Kagama, Congress can legislate for the tribes. Title II has a due process problem that will likely result in litigation. 3449. Webb, Barbara J. Larson and John R. Webb. “Equitable and Declaratory Relief under the Indian Civil Rights Act.” North Dakota Law Review 48 (Summer 1974): 695–727. The act, despite its intent to protect tribal members, cannot be separated from assimilation. This reality may make tribal judges more fearful of further federal encroachment.

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3450. Winfrey, Robert H., Jr. “The Indian Civil Rights Act.” In Between Two Worlds: The Survival of Twentieth Century Indians, edited by Arrell Morgan Gibson, 105–37. Oklahoma City, OK: Oklahoma Historical Society, 1986. The act ran counter to self-determination policy by interfering in tribal affairs and continued the process of “assimilation and the diminution of tribal sovereignty.” 3451. Worthen, Kevin J. “Shedding New Light on an Old Debate: A Federal Indian Law Perspective on Congressional Authority to Limit Federal Question Jurisdiction.” Minnesota Law Review 75 (October 1990): 65–121. ICRA has opened a question concerning civil claims and the federal government’s role. Based on Martinez, tribal courts would have jurisdiction over these claims arising on the reservation. This situation brings into question ICRA’s constitutionality.

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3452. Ziontz, Alvin J. “In Defense of Tribal Sovereignty: An Analysis of Judicial Error in Construction of the Indian Civil Rights Act.” South Dakota Law Review 20 (Winter 1975): 1–58. After enactment of ICRA, many individuals brought suit in federal courts against tribal governments for perceived wrongs. The problem was that tribal governments possessed sovereign immunity, but these suits continued. This ICRA litigation was contrary to the act’s intent. 3453. Ziontz, Alvin J. “After Martinez: Indian Civil Rights under Tribal Government.” University of California, Davis, Law Review 12 (March 1979): 1–35. Tribal courts are in delicate positions in reservation governance and must deal with issues such as separation of powers, appointment of judges, and their roles in ICRA. Despite problems, ICRA provided a movement toward greater self-rule and less administrative authority.

Chapter 37 Racial Discrimination, Exclusion, and Hiring Preference

3454. Anderson, Kevin N. “Indian Employment Preference: Legal Foundations and Limitations.” Tulsa Law Journal 15 (Summer 1980): 733–71. With the Oliphant decision, the Supreme Court limited a tribe’s authority in hiring and employment practices that is necessary for a tribal government to operate.

Rice was a Ho Chunk U.S. Army veteran who was buried in an all-white cemetery in 1951. When the cemetery caretakers realized their mistake, they told Rice’s family to remove his body. This sparked a national controversy and President Truman gave permission to have him buried at Arlington. Rice’s wife sued the offending cemetery and lost. This incident is examined in relation to the larger civil rights movement.

3455. Baird, Brian Douglas. “Morton v. Mancari: New Vitality for the Indian Preference Statutes.” Tulsa Law Journal 10, no. 3 (1975): 454–62. The IRA provided for an Indian employment preference in the Office of Indian Affairs and, in 1972, the Equal Employment Opportunity Act did not repeal that Indian preference in hiring. The Supreme Court decided this preference does not qualify as racial discrimination and that no other group is so favored.

3459. Burman, Barbara. “Mancari v. Bureau of Indian Affairs: A Discussion of Preference.” New Mexico Law Review 4 (May 1974): 283–96. Indian hiring preference has been limited to individuals who are of one-quarter Indian heritage and members of a federally recognized tribe. The preference is limited to the BIA and the IHS. Both agencies hire many Native Americans and fifty percent of the Bureau’s workforce is a tribal member but the effect has been negligible on other agencies and over 99 percent of federal jobs are not affected by this practice.

3456. Bean, Jerry L. “Native Americans and Discrimination in Kansas: Trails From Injustice.” University of Kansas Law Review 20 (Spring 1972): 468–85. Because of the reluctance of tribal people to file discrimination complaints, the Kansas legislature passed the Kansas Act Against Discrimination. Enforcement problems have made the act only partially successful.

3460. Cazedessus, Sanders R. “Constitutional Law–Denial of Equal Protection–Discrimination in Selection of Juries.” Louisiana Law Review 8 (March 1948): 548–53. This Fourteenth Amendment discrimination discussion extends the question of discrimination beyond African Americans to other groups, including Native Americans where courts have rejected their claims of discrimination.

3457. Biolsi, Thomas. Deadliest Enemies: Law and the Making of Race Relations on and off Rosebud Reservation. Berkeley: University of California Press, 2001. Rosebud Sioux Tribe v. Kneip diminished the reservation boundaries and embroiled the tribal and nontribal communities in a racial conflict. Legal battles create racial conflicts.

3461. Clarke, Patrick. “Tribal Affiliation Based Employment Preferences: Is This an Allowable Practice under Title VII’s Indian Preference Provisions?” Thurgood Marshall Law Review 20 (Spring 1995): 291–317. Title VII of the 1964 Civil Rights Act prohibits discriminatory hiring practices unless the employer is located on or near a reservation. As tribes gain

3458. Britten, Thomas A. and Larry W. Burt. “The Sergeant John R. Rice Incident and the Paradox of Indian Civil Rights.” Annals of Iowa 63 (Summer 2004): 279–310. 363

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greater control over their reservations, councils have passed Tribal Employment Rights Ordinances providing for tribal preference. Title VII is vague on tribal preference hiring and therefore this practice must continue. 3462. Cohen, Felix. “Indians and a National F.E.P.C.” American Indian 6 (Summer 1951): 26–28. Discusses discrimination against tribal workers in the southwest and other parts of the U.S. Economic discrimination places a greater burden on the U.S. Improving the operation of the Fair Employment Practice Commission would be a start. 3463. Farnsworth, Wayne. “Bureau of Indian Affairs Hiring Preferences after Adarand Constructors, Inc. v. Peña.” Brigham Young University Law Review, no. 2 (1996): 503–30. Tribal members have a unique toehold in the American legal system that extends to hiring preferences. The current self-determination policy allows this standard to pass current prohibitions on preference hiring. 3464. Fernandez, Ferdinand F. “Except a California Indian: A Study in Legal Discrimination.” Southern California Quarterly 50 (June 1968): 161–75. California’s treatment of tribal people was one of the worst sagas in U.S. history. In 1850, the state legislature passed the Black Codes that discriminated against tribal people in the work place by forcing them into labor, permitted flogging and encouraged the “Sunday slave market.”

Tribal preferential status has been the focus for anti-tribal and affirmative action groups forcing tribal communities to move from race to government status as their defense. Goldberg presents several new strategies for tribes to use to confront these conflicts. 3468. Kaplan, Patricia A. “When States’ American Indian Teacher Preferences in Public Schools Violate Equal Protection under the Fourteenth Amendment: Krueth v. Independent Sch. Dist. No. 38, Red Lake, Minn.” Hamline Law Review 17 (Spring 1994): 477–505. Minnesota passed a preference law for tribal teachers as part of the state’s American Indian Education Act of 1988. During a reduction in force at the Red Lake School, tribal teachers were retained and non-tribal teachers placed on leave. The Minnesota Court of Appeals ruled that these are political decisions and not racial ones that are done to fulfill the nation’s trust obligations. This decision violated the Fourteenth Amendment’s Equal Protection Clause. 3469. Leeds, Stacy L. “The More Things Stay the Same: Waiting on Indian Law’s Brown v. Board of Education.” Tulsa Law Review 38 (Fall 2002): 73–86. Lone Wolf is a black spot that will not go away in federal–tribal relations. The race-based legacy of the decision sadly continues today in Tee-Hit-Ton and Hicks, as well as other cases including Oliphant. This race-based case law continues because of Congressional subtleties, successful colonization, and “the perfection of subtle racism [that] has created an American pubic that suffers from a lack of outrage when it comes to American Indian issues.”

3465. Flacks-Jatta, JoHanna G. “Constructive Race: The Interaction of Personal, Social, and Legal Identity in an American Experience with Title VII: Perkins v. Lake County Development of Utilities.” American Indian Law Review 19, no. 2 (1994): 473–98. The 1964 Civil Rights Act, Title VII, was intended to end discrimination in the workplace. Perkins was a workplace discrimination case. The plaintiff was a tribal member who worked for the local utility and the court ruled that “courts need to construe race with regard to both social and legal construction” to reach “racial equality under the law.”

3470. Limas, Vicki J. “Sovereignty as a Bar to Enforcement of Executive Order No. 11,246 in Federal Contracts with Native American Tribes.” New Mexico Law Review 26 (Spring 1996): 257–92. This executive order mandates that contractors and subcontractors doing business with the federal government must hire women and ethnic minorities. Since tribes are sovereign, this order does not have any authority over their contracting operations.

3466. Gamino, John. “Bureau of Indian Affairs: Should Indians be Preferentially Employed?” American Indian Law Review 2 (Summer 1974): 111–18. In Apache Tribe v. Hicks, Indian and non-Indian employment in the BIA became a legal issue. The problem is finding a balance between federal statutes mandating tribal preference and non-Indian employment rights.

3471. Peterson, Susan C. “Discrimination and Jurisdiction: Seven Civil Rights Cases in South Dakota, 1976–1982.” Journal of the West 25 (October 1986): 44–48. Includes a brief description of a case involving an American Indian woman who claimed that she had been discriminated against in a job interview.

3467. Goldberg, Carole. “American Indians and ‘Preferential’ Treatment.” UCLA Law Review 49 (April 2002): 943–89.

3472. Shockey, Frank. “‘Invidious’ American Indian Tribal Sovereignty: Morton v. Mancari Contra Adarand Constructors, Inc., v. Pena, Rice v. Cayetano, and

Racial Discrimination, Exclusion, and Hiring Preference

Other Recent Cases.” American Indian Law Review 25, no. 2 (2000–2001): 275–313. The Mancari case was a class-action suit filed by non-Indian BIA employees claiming that BIA Indian preference hiring practices violated the Equal Employment Opportunity Act and Fifth Amendment. The U.S. Supreme Court ruled against them arguing that the hiring preference was not racially based. Shockey also analyzes how other cases like Adarand and Rice have dealt with federal ambivalence about the importance of race as a defining factor in the federal–tribal relationship. 3473. Stubben, Jerry D. “Indian Preference: Racial Discrimination or a Political Right?” In American Indian Policy: Self-Governance and Economic Development, edited by Lyman H. Legters and Fremont J. Lyden, 103–17. Westport, CT: Greenwood Press, 1994.

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Indian preference hiring is not racist because it is a political right. It is an affirmation of tribal sovereignty. Stubben examines its legal basis with specific analysis of Title VII of the Civil Rights Act of 1964, the IRA, and case law, including Morton v. Mancari. 3474. Werntz III, Joseph Lee. “Constitutional Law—Title VII—Indian Hiring Preference Does Not Contravene Fourteenth Amendment Equal Protection Clause.” New Mexico Law Review 10 (Summer 1980): 461–69. Title VII of the 1964 Civil Rights Act was intended to remove barriers to equal employment opportunities. Paul and Sara Livingston sued to sell goods in municipalities that only permitted Indians to sell their goods. The Tenth Circuit Court of Appeals decided that Indian preference applied.

Chapter 38 Economic Development and Labor Relations

3475. Aberle, David F. “Navajo Economic Development.” In Southwest, volume 10, Alfonso Ortiz, volume ed. Handbook of North American Indians, William C. Sturtevant general ed., 641–58. Washington, DC: Smithsonian Institution, 1983. Studies developments in sectors of the tribal economy from 1868 through the 1970s. The Navajo Nation is an underdeveloped internal colony with outsiders controlling many of its decisions and reaping its rewards, yet the tribe has been innovative in its efforts to gain greater control and develop its economy. Livestock, agriculture, mineral resource development and taxation issues are included.

College Environmental Affairs Law Review 16, no. 4 (1989): 857–95. It is crucial for tribes to control their natural resources if they are going to push for self-determination. Leasing provides one alternative to sale, but it also opens the way for future control of their natural resources by outsiders. Tribes are urged to increase their control over reservation natural resource development. 3479. Anders, Gary C. “Theories of Underdevelopment and the American Indian.” Journal of Economic Issues 14 (September 1980): 681–701. Examines and applies colonial and dependency theories to tribal communities. The taking of surpluses is a common thread of colonialism and political disparity between the colonizer and the colonized is economically motivated.

3476. Adams, Jim. “Islands of Freedom: Dreaming of Diversified Economies.” Native Americas 20 (Winter 2003): 44–51. A problem that the casino tribes face in California is diversifying their economies. Most of the diversification is on a large scale creating tribal businesses, but often the individual businessman is left out of the tribal economic plans.

3480. Anderson, Joseph S. and Dean Howard Smith. “Managing Tribal Assets: Developing Long-Term Strategic Plans.” American Indian Culture and Research Journal 22, no. 3 (1998): 139–56. Discusses the problems tribes face in developing long-term strategic plans for the use of tribal assets, and encourages the National Executive Education Program for Native American Leadership/Center for American Indian Development (NEEPNAL/CAIED) method for doing so. The method includes interviews with a wide variety of tribal members and incorporates cultural issues into the planning process. The authors view this method as useful in moving toward greater self-sufficiency and sovereignty.

3477. Adamson, Rebecca. “Opportunity Knocks, but Relationships Stay: The Native American Credit Market.” Journal of Lending & Credit Risk Management 80 (October 1997): 32–35. Despite opportunities in Indian Country, there are very few relationships between tribal economic ventures and American financial institutions. One tribal casino sent 40 percent of its earnings overseas. Stockmens Financial of Nebraska has worked with Pine Ridge and established a lending program. The institution’s financial expertise could make it an excellent partner to tribal government.

3481. Anderson, Terry L., ed. Property Rights and Indian Economies. Lanham, MD: Rowman and Littlefield, 1992. Various authors focus on “three general ingredients necessary for successful economies:” stable

3478. Allen, Mark. “Native American Control of Tribal Natural Resource Development in the Context of the Federal Trust and Tribal Self-Determination.” Boston

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government, minimal bureaucracies, and the rule of law. Self-determination is vital to economic success and this is only likely to occur “in an institutional setting where individual rights (including right to property) are protected and where the rule of law is consistent with local customs and property rights.” 3482. Anderson, Terry L. Sovereign Nations or Reservations? An Economic History of American Indians. San Francisco, CA: Pacific Research Institute for Public Policy, 1995. Examines the role of economics in shaping institutional changes in tribal governance. Resources and tribal politics are components of success. As tribal institutions change, so does tribal governance. 3483. Anderson, Terry L., Bruce L. Benson, and Thomas E. Flanagan, eds. Self-Determination: The Other Path for Native Americans. Palo Alto, CA: Stanford University Press, 2006. Various authors emphasize that self-determination must be an economic quest rather than simply a political one. Some of the essays focus on showing that Native peoples did have traditional concepts of private property. Douglas C. North provides a brief introduction. Some of the essays focus on Canada. 3484. Anderson, Terry L. and Fred McChesney, “Raid or Trade? An Economic Model of Indian–White Relations.” Journal of Law & Economics 37 (April 1994): 39–74. Employs economic models to demonstrate that both tribal and white parties over time had choices. Both sides began to express their interests in treaties that included property rights and conflicts over property. 3485. Anderson, Terry L. and Dominic P. Parker. “The Wealth of Indian Nations: Economic Performance and Institutions on Reservations.” In Self-Determination: The Other Path for Native Americans, edited by Terry Lee Anderson, Bruce L. Benson, and Thomas E. Flanagan, 159–93. Palo Alto, CA: Stanford University Press, 2006. Studies the effect of federal policies on Indian land tenure and argues that institutional development is linked to economic development. The size and scope of tribal governments are inversely related to economic growth, tribal judicial sovereignty can have a negative influence, and BIA “trust constraints on land have stunted” tribal natural resource-based economies, but less so over the last decade. 3486. Ansson, Richard J., Jr. and Ladine Oravetz. “Tribal Economic Development: What Challenges Lie Ahead for Tribal Nations as They Continue to Strive for Economic Diversity?” Kansas Journal of Law & Public Policy 11 (Winter 2001–2002): 441–84.

Despite the headlines that tell of high gaming revenues, most tribal economic development remains marginal. Tribes must diversify and spend on economic development. To improve business ventures, tribes must keep their political and business ventures separate, enact business ordinances that mirror standard commercial practices and the uniform commercial code, develop sources of capital, and make copies of the tribal code available to business. 3487. “Arguing for a Separation of Powers.” American Indian Journal of the Institute for the Development of Indian Law 6 (September 1980): 12–17. Interview with the Director of the Navajo Energy Authority Ernie Stevens who discusses factors hindering economic growth and provides the view that the tribal government had carried out the trust responsibility without the BIA. 3488. Barrington, Linda, ed. The Other Side of the Frontier: Economic Explorations into Native American History. Boulder, CO: Westview Press, 1998. Essays by various authors on American Indian economic history broken into chronological eras. Each era focuses on different trends, with the precolonial years marking the establishment and adaptation of institutions, the next era marked by trade relations, the next bargaining and dependency, and the twentieth century focusing on bureaucratic strategies. 3489. Bauer, Michael R., “The Yakama Nation’s Involvement at the Hanford Nuclear Site.” Gonzaga Law Review 30 (1994–1995): 647–54. Because of the 1855 treaty with the Yakama Nation, federal statutes, and the government’s trust responsibilities, “the Department of Energy is legally obligated to ensure the rights of the Yakama people are honored and that the Yakama Nation is afforded participation in the management of the Hanford Nuclear Site.” 3490. Bauer, William. “Working for Identity: Race, Ethnicity, and the Market Economy in Northern California, 1875–1936.” In Native Pathways: American Indian Culture and Economic Development in the Twentieth Century, edited by Brian Hosmer and Colleen O’Neill, 238–57. Boulder, CO: University of Colorado Press, 2004. Through their involvement in a racialized labor market, Native Americans found ways to reinforce their identities and some used their earnings to purchase lands. 3491. Bean, Lowell John. “Morongo Indian Reservation: A Century of Adaptive Strategies.” In American Indian Economic Development, edited by Sam Stanley, 159–236. The Hague: Mouton Publishers, 1978.

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This California community prefers economic development strategies they clearly understand and control. A study of seven voluntary associations reveals that what outsiders view as tribal dysfunctionality and failure are deliberate protective strategies. Political factionalism is not detrimental, but helps limit outside influence. Their economic failures are attributable to uncontrollable factors such as trust status and land-tenure conflicts with outsiders.

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Discusses tribal desires to develop reservation resources and the role of the federal government in these ventures. 3496. Bennett, Robert L. “Problem and Prospects in Developing Indian Communities.” Arizona Law Review 10 (Winter 1968): 649–60. Discusses the advances tribal communities have made in economic development. Various programs that improved the opportunity for tribes to develop reservation resources are detailed.

3492. Bee, Robert and Ronald Gingrich. “Colonialism, Classes and Ethnic Identity: Native Americans and the National Political Economy.” Studies in Comparative International Development 12 (Summer 1977): 70–93. Robert Thomas described American reservations as colonies in 1966 and that description has been too common. The authors fear “that the colonial concept is in danger of being overextended into situations where it loses much of its analytical value and at the same time obscures the dynamics of structures of a different sort.” This is true since one half of the tribal population fall into a socioeconomic class instead of a colonial model.

3497. Bernardi-Boyle, Dao Lee. “State Corporations for Indian Reservations.” American Indian Law Review 26 (2001–2002): 41–65. Tribes need access to capital for economic development and must find ways to attract outside investors. Tribes have difficulty doing so because their sovereign immunity and taxing power means that they cannot completely commit contractually and thus assure a fair return to investors. Tribes can avoid this problem using tribal corporations formed under state law.

3493. Begay, Manley, A., Jr. Designing Native American Management and Leadership Training: Past Efforts, Present Endeavors, and Future Options. Harvard Project on American Indian Economic Development, John F. Kennedy School of Government, Cambridge, MA: Harvard University, November 1991. Discusses reservation human development by suggesting ways that Native leaders can develop business and administration skills. Tribal leadership and management training is essential if tribal people are going to manage their own affairs.

3498. Bigart, Robert James. “Indian Culture and Industrialization.” American Anthropologist 74 (October 1972): 1180–88. Compares tribal culture traits such as independence and peer pressure. Tribal punctuality may mean getting there late, but also working late. On the other hand, factories are geared toward western values based on commodity exchange and monetary rewards. These differences reveal that factories near or on reservations should follow tribal cultural values for the best organizational success.

3494. Begay, Manley A., Jr., Stephen Cornell, and Joseph P. Kalt. Making Research Count in Indian Country: The Harvard Project on American Indian Economic Development. Harvard Project on American Indian Economic Development, John F. Kennedy School of Government, Cambridge, MA: Harvard University, October 1997. Overview of the Harvard Project on American Indian Reservation economic development. The authors’ interest was stimulated by the fact that some tribes were able to move forward, and some unable to, in their economic development plans. This is the case because sovereignty is a necessity, sovereignty must be used effectively, and rules must be laid down so that the game can be played. This means that the government must match the community’s goals and traditions.

3499. Blumm, Michael C. “A Trilogy of Tribes vs. FERC: Reforming the Federal Role in Hydropower Licensing.” Harvard Environmental Law Review 10 (1986): 1–59. Three lawsuits in which tribes brought suit against the FERC are considered, Tulalip Tribes v. FERC, Escondido Mutual Water Co. v. La Jolle Band of Mission Indians, and Yakima Indian Nation v. FERC. Each involved a different point of law, but collectively “[t]he principle legacy . . . will be a curb on FERC’s discretion to regulate hydroelectric development.”

3495. Bennett, Elmer F. “Federal Responsibility for Indian Resources.” Federal Bar Journal 20 (Summer 1960): 255–62.

3500. Boyce, Katharine Randolph. “Expanded Federal Contracting Opportunities for Indian Enterprises: A Summary of Five Initiatives Launched during the 101st Congress.” Federal Bar News & Journal 38 (March 1991): 80–87. The 101st Congress enacted legislation that expanded tribal contracting opportunities for tribal enterprises. By amending the 1910 Buy Indian Act,

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overdue changes were made in Indian preference for getting contracts to benefit tribal members. 3501. Boyce, Katharine Randolph. “Incentive Payment Program Expands Federal Subcontracting Opportunities for Indian Country.” Federal Lawyer 48 (March/April 2001): 38–40. The 1974 Congress passed the Indian Financing Act that provided incentives to Indian businesses that contracted with the federal government. By rewriting the regulations, Congress will make the payments flow to tribal enterprises and eliminate narrow government agency readings of the law. 3502. Brescia, William and Tony Daily. “Economic Development and Technology-Skill Needs on American Indian Reservations.” American Indian Quarterly 31 (Winter 2007): 23–44. Stresses the importance of tribal leaders and communities overcoming the digital divide that separates tribal communities from non-tribal communities. Tribal colleges and universities are essential. 3503. Buffalo, William and Kevin J. Wadzinski. “Application of Federal and State Labor and Employment Law to Indian Tribal Employers.” University of Memphis Law Review 25 (Summer 1995): 1365–99. IGRA has created economic growth on some reservations and now tribes are forced to hire employees, so what labor laws prevail on reservations? Title VII of the 1964 Civil Rights Act includes tribes. Whether tribes have been excluded from the Americans with Disabilities Act and OSHA is in dispute. Also examines a host of labor legislation and how tribal governments are affected by these acts. Where P.L. 280 is applicable, state labor laws may apply. 3504. Burt, Larry. “Western Tribes and Balance Sheets: Business Development Programs in the 1960s and 1970s.” Western Historical Quarterly 23 (November 1992): 475–95. Surveys federal economic agencies and programs that influenced tribal business development from the termination to the self-determination eras. These programs had few positive results. Burt also discusses the roles intertribal politics and rising Indian nationalism played in tribal business development, the effects of which often repelled business. 3505. Caliguire, Daria and Kenneth Grant. A Foundation for Economic Development for the Hualapai Nation: Building an Enterprise Board. Harvard Project on American Indian Economic Development, John F. Kennedy School of Government, Cambridge, MA: Harvard University, April 1993. The Hualapai have begun a renewal, initiating political reforms to foster self-determination. To take

advantage of this renewed political ability, the tribe re-authorized the Enterprise Board, but it is not functional due to a lack of clearly defined goals. 3506. Calliou, Brian. “The Culture of Leadership: North American Indigenous Leadership in a Changing Economy.” In Indigenous Peoples and the Modern State, edited by Duane Champagne, Karen Jo Torjesen and Susan Steiner, 47–68. Walnut Creek, CA: AltaMira Press, 2005. Argues that tribal leaders “need to revitalize traditional principles and concepts of leadership and combine them with the modern competencies, knowledge, and skills required of mainstream managers and leaders” and doing so will enable them to lead their peoples to greater economic success. 3507. Cameron, Michael W. “A Prototypical Economic Development Corporation for American Indian Tribes.” In Stephen Cornell and Joseph P. Kalt, eds. What Can Tribes Do? Strategies and Institutions in American Indian Economic Development 63–90. Los Angeles: UCLA, American Indian Studies Center, 1992. A semi-autonomous tribal developmental corporation can be one means to overcome the disadvantages tribes face in economic development. Cameron outlines how such an organization would be structured and could function. Possible obstacles include insufficient managerial expertise, absence of a private sector, and imprudent tribal expenditures. Strong tribal leadership and support from the tribal membership are necessary ingredients. 3508. Carter, Truman and Fred H. Miller. “Uniform Laws and Tribal Legislation: One Tribe’s Perspective.” American Indian Law Review 26 (2001–2002): 89–104. As tribes become more reliant on business connections with non-members it is important that they develop “common and predictable” legal systems that will not deter outside business associates. Tribes and states should cooperatively pursue uniform laws to facilitate this process, so long as such laws adequately fit tribal needs. Tribes can move toward this goal with assistance from the National Conference of Commissioners on Uniform State Laws. 3509. Cecil, Kelly L. Encouraging Entrepreneurship on the San Carlos Apache Reservation. Harvard Project on American Indian Economic Development, John F. Kennedy School of Government, Cambridge, MA: Harvard University, May 1988. Entrepreneurial ideas should be solicited from tribal members who are outside tribal or federal programs. Some investment practices may challenge tribal values. Encouraging development from the pri-

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vate sector is not easy, but the result may be worthwhile.

nomic and legal impediments to economic development among the nation’s poorest people.”

3510. Champagne, Duane. “Economic Culture, Institutional Order, and Sustained Market Enterprise: Comparisons of Historical and Contemporary American Indian Cases.” In Property Rights and Indian Economies, edited by Terry L. Anderson, 195–213. Lanham, MD: Rowman and Littlefield, 1992. It will be difficult to establish “sustainable market enterprises” on reservations if the strategies do not incorporate “local economic culture and institutional order.” Champagne considers a variety of factors limiting sustained economic activities, including BIA-imposed bureaucratic constraints, “the nondifferentiation of relations between society, polity, and economy,” and “subordination of economic development to political and cultural goals.” Discussion includes ANCSA’s effects.

3514. “Comanche Steel: An American Indian Business Success Story.” American Indian Journal of the Institute for the Development of Indian Law 9 (Fall 1986): 33–35. Success story describing the trials and tribulations of Comanche partners building a viable business.

3511. Chatigny, Bradford E. “The Anadarko Dilemma: Can “Offshore” Banking Join Gambling in the Native American Arsenal of Economic Development?” Columbia Journal of Law and Social Problems 32 (Fall 1998): 99–129. The First Lenape National Bank of Anadarko claims it is the bank of a tribal sovereign and therefore outside the control of both state and federal regulations. These tribal banks can overcome any judicial challenge. 3512. Clift, R. Spencer III. “The Historical Development of American Indian Tribes; Their Recent Dramatic Commercial Advancement; and a Discussion of the Eligibility of Indian Tribes under the Bankruptcy Code and Related Matters.” American Indian Law Review 27 (2002–2003): 177–252. If tribes wish to continue developing their economies they must be able to create a commercially attractive environment, one that offers some legal certainty for outside investors. They must also be prepared to deal with possible bankruptcy, so there needs to be a clarification of their now uncertain status under the Bankruptcy Code. 3513. Clinton, Robert N. “The Dormant Indian Commerce Clause.” Connecticut Law Review 27 (Summer 1995): 1055–1249. The Constitution’s framers wanted to eliminate any debate over the role that states and the federal government would have in tribal affairs as revealed by The Federalist No. 42. The Commerce Clause was the authority for excluding state authority on tribal lands. The Supreme Court went in a new direction in McClanahan and Mescalero Apache Tribe marginalizing the Commerce Clause and “created serious eco-

3515. Cook, Tom. “We Are Determined to Continue Until We Have a Sustainable Economy.” Native Americas 19 (Fall/Winter 2002): 41–43. Discusses the Slim Buttes Agri-Development in 1985. The goal was to help the Oglala people survive and gain nutritional needs and to help Pine Ridge people get out of poverty. The model was tried in the 1930s, but fell by the wayside during WWII. 3516. Cooper, Sarah. Tourism Development for American Indians in Arizona: The Potential for State Involvement. Harvard Project on American Indian Economic Development, John F. Kennedy School of Government, Cambridge, MA: Harvard University, April 1989. Some Arizona tribes are exploring tourism as a form of development, but limited resources for marketing reveals the need for outsider and state government support. Cooperation can eliminate jurisdictional conflicts and promote tribal attractions. The study recommends changes that the Arizona State government can implement to assist tribes. 3517. Cornell, Stephen. Tourism and Economic Development: Considerations for Tribal Policy and Planning. Harvard Project on American Indian Economic Development, John F. Kennedy School of Government, Cambridge, MA: Harvard University, October 1989. The same factors that influence tribal development also affect tribal tourism because it does not exist in a vacuum. The common themes that influence success or failure are effective sovereignty, strong governing institutions, and determination of proper projects to pursue. 3518. Cornell, Stephen. Five Myths, Three Partial Truths, a Robust Finding, and Two Tasks. Harvard Project on American Indian Economic Development, John F. Kennedy School of Government, Cambridge, MA: Harvard University, May 1994. Without sovereignty, there is little if any hope for strong economic development. If rights are exercised, then there is the need for the tribal community to understand that development is about how a community plans to sustain employment and to work with off reservation communities.

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3519. Cornell, Stephen. Strategic Analysis: A Practical Tool for Building Indian Nations. Harvard Project on American Indian Economic Development, John F. Kennedy School of Government, Cambridge, MA: Harvard University, April 1998. Reservation economic development may take many forms, including subsistence, mining, and manufacturing ventures. They run from individual to tribal-owned businesses and may be either based on tribal tradition or new ventures. Any effort must meet community goals. 3520. Cornell, Stephen and Marta Cecilia Gil-Swedberg. Sociohistorical Factors in American Indian Economic Development: A Comparison of Three Apache Tribes. Harvard Project on American Indian Economic Development, John F. Kennedy School of Government, Cambridge, MA: Harvard University, September 1992. The White Mountain Apache, Mescalero Apache, and San Carlos Apache have the opportunity to participate in P.L. 638’s self-governance’s provisions. The other two are doing economically better than San Carlos because it has a history of greater federal intervention and is a mixture of many different tribal groups. 3521. Cornell, Stephen and Joseph P. Kalt. Public Choice, Culture and American Indian Economic Development. Harvard Project on American Indian Economic Development, John F. Kennedy School of Government, Cambridge, MA: Harvard University, July 1988. The goals of economic development include economic well-being, political sovereignty, and cultural sovereignty. A development strategy must be selected and federal intrusion must be reduced since the Crow constitution requires Interior Department approval for all tribal resolutions. 3522. Cornell, Stephen and Joseph P. Kalt. Pathways from Poverty: Development and Institution-Building on American Indian Reservations. Harvard Project on American Indian Economic Development, John F. Kennedy School of Government, Cambridge, MA: Harvard University, May 1989. Though most reservations have high unemployment, some have higher rates than others. Despite these differences, reservations all have government transfer economies where they are administrating programs and not developing private enterprises. This condition has a long history that was described in the Meriam Report. There have been efforts toward increased tribal control and now economic development is following tribal agendas.

3523. Cornell, Stephen and Joseph P. Kalt. “Pathways from Poverty: Economic Development and InstitutionBuilding on American Indian Reservations.” American Indian Culture and Research Journal 14, no. 1 (1990): 89–125. Concludes that successful economic development must follow the establishment of tribal self-governance rather than vice-versa. Also, tribes must focus on developing institutional mechanisms to create and maintain a hospitable environment for financial investment. Those mechanisms must be both culturally relevant for the particular community and adequate for the market environment they face. 3524. Cornell, Stephen and Joseph P. Kalt. Where’s the Glue? Institutional Bases of American Economic Development. Harvard Project on American Indian Economic Development, John F. Kennedy School of Government, Cambridge, MA: Harvard University, February 1991. Coinciding with tribal assertion of greater sovereignty in the 1970s, making self-determination a potential, a few reservations sustained productivity by developing informal institutions that are essential for economic development. 3525. Cornell, Stephen and Joseph P. Kalt. What Can Tribes Do? Strategies and Institutions in American Indian Economic Development. Los Angeles: UCLA, American Indian Studies Center, 1992. Various authors provide information, where before it has been scarce, to tribes seeking to control their economic development. The articles focus on the importance of institutional bases. 3526. Cornell, Stephen and Joseph P. Kalt. “Reloading the Dice: Improving the Chances for Economic Development on American Indian Reservations.” In What Can Tribes Do? Strategies and Institutions in American Indian Economic Development 3–59. Los Angeles: UCLA, American Indian Studies Center, 1992. Discusses major obstacles facing tribes and the importance that tribal government institutions play in development. The three keys to success are sovereignty, institutions, and developmental strategies. 3527. Cornell, Stephen and Joseph P. Kalt. Culture as Explanation in Racial and Ethnic Inequality: American Indians, Reservation Poverty, and Collective Action. Harvard Project on American Indian Economic Development, John F. Kennedy School of Government, Cambridge MA: Harvard University, April 1993. A tribal governing organization’s structure is important to the continuation of informal but appropri-

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ate economic behaviors. Though non-Indians created tribal governments, successful economic development is probable when formal institutions and informal cultural behavior are a closer match.

“nation-building” approach, which focuses on building a nation, and environment, where business can thrive. They urge tribes to take the latter approach while federal policies are still somewhat favorable.

3528. Cornell, Stephen and Joseph P. Kalt. Successful Economic Development and Heterogeneity of Government Form on American Indian Reservations. Harvard Project on American Indian Economic Development, John F. Kennedy School of Government, Cambridge, MA: Harvard University, March 1995. The move toward self-determination has resulted in several successful tribal governments that have sustained economic development. Successful governments are closely tied to pre-reservation governments and powers. Two such governments are the Salish Kootenai democracy and the Cochiti Pueblo’s theocracy.

3532. Cornell, Stephen and Joseph P. Kalt. “Where’s the Glue? Institutional and Cultural Foundations of American Indian Economic Development.” Journal of Socio-Economics 29, no. 3 (2000): 443–70. The 1975 Self-Determination Act opened the door for tribes across the country to exercise greater selfgoverning powers in all areas with the goal of defeating poverty. Looking at tribal success rates, the essay concludes tribal constitutions are the keys to successful development when there are provisions for the separation of powers and when government structures follow along past political structures.

3529. Cornell, Stephen and Joseph P. Kalt. Cultural Evolution and Constitutional Public Choice: Institutional Diversity and Economic Performance on American Indian Reservations. Harvard Project on American Indian Economic Development, John F. Kennedy School on Government, Cambridge, MA: Harvard University, January 1995. Collectively tribal governments create rules that involve rational individuals who express their selfinterests and share their self-interests with others who are part of their social network. The result is the creation of a theory of cultural evolution that Armen Alchian put forth called “environmental adoption” which appears to be ready for testing on reservations. 3530. Cornell, Stephen and Joseph P. Kalt. Sovereignty and Nation-Building: The Development Challenge in Indian Country Today. Harvard Project on American Indian Economic Development, John F. Kennedy School of Government, Cambridge, MA: Harvard University, 1998. Without sovereignty, there can be no economic development. Tribes take either the jobs and income approach or the nation building approach. Both begin with the lack of economic development; the latter seeks a more comprehensive approach to the economic problem. 3531. Cornell, Stephen and Joseph P. Kalt. “Sovereignty and Nation-Building: The Development Challenge in Indian Country Today.” American Indian Culture and Research Journal 22, no. 3 (1998): 187–214. Sovereignty and nation building are necessary to attain long-term economic success. The authors categorize tribal economic-development efforts as either focusing on the “jobs and income” approach, which focuses on starting businesses to create jobs, or the

3533. Correa, Floyd R. “The Tribal Role in Labor Disputes and other Resource Conflicts.” In American Indian Lawyer Training Program, Seminar on Indian Natural Resource Law and Finance. Oakland, CA: American Indian Lawyer Training Program, 1980, 387–99. The author was governor of Laguna Pueblo and was involved in a strike against the Atlantic Richfield, lease negotiations, and reclamation plans. One of his successes was the creation of a training program for people at Pueblo Laguna. 3534. Cross, Raymond. “De-Federalizing American Indian Commerce: Toward a New Political Economy for Indian Country.” Harvard Journal of Law & Public Policy 16 (Spring 1993): 445–92. The matrix of federal law, jurisdictional constructions, and extensive federal agency-derived regulations has made it difficult for tribal communities to develop reservation resources and fulfill the goal of selfdetermination. Instead of “tribal separatism,” “group autonomy” is the beginning point to initiate “private law principles developed by tribal governments and courts” to deregulate reservation economics. 3535. Davies, Bruce. “Will the Circle be Unbroken?” American Indian Journal of the Institute for the Development of Indian Law 2 (May 1976): 11–14. Describes federal management of tribal natural resources as poor, but argues that the government stewards were not corrupt. They apply western cultural standards to tribal communities. If a tribe makes a moral decision to not mine coal, the federal government may step in and make the decision to do so. Tribal members argue that renewable resources such as timber should be developed. 3536. DeMallie, Raymond J. “Pine Ridge Economy: Cultural and Historical Perspectives.” In American

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Indian Economic Development, edited by Sam Stanley, 237–312. The Hague: Mouton Publishers, 1978. Discusses Oglala values, periodizes their economic development, and provides recent demographic and economic statistical data. Their modern economic situation is one of dependency, lack of tribal unity, problematic management, political factionalism, lack of continuity, and lack of profit incentive. Oglala’s have often resisted change to protect their culture, and they should be trusted to direct their own development. 3537. Diamant, Adam. Economic Development: The Rosebud Sioux Tribe. Harvard Project on American Indian Economic Development, John F. Kennedy School of Government, Cambridge, MA: Harvard University, May 1988. Two decades of economic programs have failed at Rosebud. To create long-term growth, the tribe must use its limited resources wisely and develop microenterprises to minimize economic downturns. The tribe might succeed with a forestry program, the sale of big game hunting permits, and a commercial fishery. Local crafts, micro-electronic assembly plants, a garment plant, and a cannery are potential industries, but a survey of the people is necessary to see what work they will do. 3538. Dickinson, Marke and Bill Wiggins. A Single Acre, a Sovereign Effort: A Model for Muckleshoot Land-Use and Economic Development. Harvard Project on American Indian Economic Development, John F. Kennedy School of Government, Cambridge, MA: Harvard University, April 1995. North of the Muckleshoot reservation, the tribe has a small piece of property on the mouth of the Duwamish River in Seattle. A task force was developed to determine potential uses for the land that coincide with the tribe’s economic development goals. Their effort can be a model for exercising future sovereignty. 3539. Dietrich, Steve E. “Tribal Business and the Uncertain Reach of Tribal Sovereign Immunity.” Washington Law Review 67 (January 1992): 113–32. Unlike states or the federal government, no statute defines tribal sovereign immunity. That ambiguity creates one barrier prohibiting business ventures on reservations. Congress should pass a tribal sovereign immunity statute to reassure businesses. Tribal leaders should extend common law principles to tribal businesses operating on or off the reservation. 3540. Doran, Kwinn H. “Ganienkeh: Haudenosaunee Labor-Culture and Conflict Resolution.” American Indian Quarterly 26 (Winter 2002): 1–23.

Instead of a place for illegal activities, Ganienkeh’s wanted founders to reestablish tribal labor values as a means to legitimacy. 3541. Economic Development in American Indian Reservations, Development Series No. 1. Albuquerque: Native American Studies, University of New Mexico, 1979. Thirteen articles by various scholars covering such economic-related topics as land policy, water rights, taxation, pastoralism, and mineral development. They focus on reasons for underdevelopment and multiple essays use the Navajo Nation for case studies. 3542. Edmunds, R. David. “‘Designing Me, Seeking a Fortune’: Indian Traders and the Potawatomi Claims Payment of 1836.” Indiana Magazine of History 77 (June 1981): 109–22. Potawatomis living on village reservations were economically disadvantaged and were indebted to local whites. The government once paid these debts out of annuities but now chiefs were encouraged to pay debts from proceeds of land sales. 3543. Edwards, Newton. “Economic Development on Indian Reserves.” Human Organization 20 (Winter 1961–1962): 197–202. Tribal people are struggling to enjoy the American success story despite development around them. The reservations are still underdeveloped. Edwards examines the development efforts of the North Carolina Cherokee, White Mountain Apache, Florida Seminoles, and Alaskan Native Industries Cooperative Association. The White Mountain Apache have been the most successful due to cattle and lumber. 3544. Eicher, Carl K. “Income Improvement on the Rosebud Sioux Reservation.” Human Organization 20 (Winter 1961–1962): 191–96. BIA efforts to provide better services on the Rosebud Reservation are not likely to stimulate private investment. A federally funded rehabilitation program will benefit the Rosebud people. 3545. Erickson, Jon D. and Duane Chapman. “Sovereignty for Sale: Nuclear Waste in Indian Country.” Akwe:kon: A Journal of Indigenous Issues 10 (Fall 1993): 3–10. The growing production of nuclear waste and the tribes’ need for economic development has created a situation where several southwestern tribal nations may accept the DOE’s offer to construct nuclear wastes dumps on their reservations. 3546. Erickson, Jon D., Duane Chapman, and Ronald E. Johnny. “Monitored Retrievable Storage of Spent

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Nuclear Fuel in Indian Country: Liability, Sovereignty, and Socioeconomics: American Indian Law Review 19, no. 1 (1994): 73–103. The Oak Ridge, Tennessee nuclear waste facility plan was scrapped in 1987 and several tribes have been asked to create Monitored Retrievable Storage facilities for nuclear fuel. The Mescalaro Apache have expressed the most interest, but the prospect has created controversy within the tribe.

3551. Fogleman, Amelia A. “Sovereign Immunity of Indian Tribes: A Proposal for Statutory Waiver for Tribal Businesses.” Virginia Law Review 79 (September 1993): 1345–80. Sovereign immunity is a strong weapon tribes possess and they are reluctant to even discuss diminishing it. To encourage business, tribes should negotiate away some of their sovereign immunity to gain economic plums to assist the reservation.

3547. Erlich, Richard. “Sovereignty and the Tribal Economy.” American Indian Journal of the Institute for the Development of Indian Law 6 (November 1980): 21–26. For tribal economic development to succeed, tribes need to develop business codes that will assist in the preservation of tribal culture and still attract outside businesses.

3552. Francisconi, Michael Jospeh. Kinship, Capitalism, Change: The Informal Economy of the Navajo, 1868–1995. New York: Garland Publishing, 1998. Three “major revolutions” have occurred that have “integrated the Diné into the world capitalist system.” These include the introduction of trading posts, livestock reduction, and the most recent coming of capital-intensive extractive industries. The end result has been underdevelopment and high unemployment. While capitalism has been imposed from the outside, an informal and unregulated Navajo economy has developed that mixes capitalism with the traditional kinship economy. It has both fostered “capitalist penetration” and served as a “tool of resistance.”

3548. Faiman-Silva, Sandra. “Multinational Corporate Development in the American Hinterland: The Case of the Oklahoma Choctaws.” In The Political Economy of North American Indians, edited by John H. Moore, 214–39. Norman: University of Oklahoma Press, 1993. These corporations, including Weyerhaeuser Company, Inc., a forestry products company, are vertically and horizontally integrated and thrive in unequal relationships with the communities where they operate. Weyerhaeuser has placed the Choctaws in a dependent relationship where workers are exploited. 3549. Faiman-Silva, Sandra. “Decolonizing the Choctaw Nation: Choctaw Political Economy in the Twentieth Century.” American Indian Culture and Research Journal 17, no. 2 (1993): 43–73. The Choctaw nation of southeastern Oklahoma has become “an internal colony within the United States political economy.” Federal policies affecting the tribe’s economic and political autonomy, including land allotment and Reagan’s tribal selfsufficiency policies, are surveyed. Economic development must be pursued in ways that reinforce, rather than compromise, the tribe’s community and cultural integrity. 3550. Festa, David H. and James R. St. George. Evaluation of Reservation-Based Loan Programs. Harvard Project on American Indian Economic Development, John F. Kennedy School of Government, Cambridge, MA: Harvard University, May 1988. Tribal members often lack financial education on loans and loan repayments. Loan programs often become social programs, and politics also interfere in loan programs making them more difficult to run properly.

3553. Frye, Paul E. “Lender Recourse in Indian Country: A Navajo Case Study.” New Mexico Law Review 21 (Spring 1991): 275–326. The Navajo Nation’s elected leaders have sought to encourage small businesses that are not subsidies dependent and that will strengthen tribal sovereignty. Failure to get credit results from several factors including poor administrative decisions, absence of technical knowledge, and political intrusion. 3554. Galbraith, Craig S., Carlos L. Rodriguez, and Curt H. Stiles. “False Myths and Indigenous Entrepreneurial Strategies.” In Self-Determination: The Other Path for Native Americans, edited by Terry Lee Anderson, Bruce L. Benson, and Thomas E. Flanagan, 4–28. Palo Alto, CA: Stanford University Press, 2006. The false myths that Indian societies were economically collectivist, that private property was an alien concept to them, and that economic development was subordinate to their harmonious relations with nature are so ingrained that they influence current scholarship and policy-making. They reflect “an artificial nineteenth-century “collective” land tenure system and a twentieth-century “romantic” image.” Entrepreneurial development should be promoted. 3555. Gaupp, Anna-Emily C. “The Indian Tribal Economic Development and Contracts Encouragement Act of 2000: Smoke Signals of a New Era in Federal Policy?” Connecticut Law Review 33 (Winter 2001): 667–90.

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Ben Nighthorse Campbell introduced this legislation in 1999. On the surface, this bill moves away from paternalism and promotes self-governance and tribal economic self-determination, but it does not promote tribal interests in economic development through the secondary debt market. 3556. George, Keller. “To the Seventh Generation: We Did This for You.” Native Americas 19 (Fall/Winter 2002): 66–69. An Onondaga, George describes how his community developed economic plans. The tribe was so successful that it returned monies to the federal government with the stipulation that the U.S. give the monies to eastern tribes who are in greater need. 3557. Gilbreath, Kent. Red Capitalism: An Analysis of the Navajo Economy. Norman: University of Oklahoma Press, 1973. Because it lacks a well-developed business sector most profits generated on the Navajo Nation flow to outsiders. Developing small business could provide quick economic success. Related legal and political problems are considered. 3558. Gips, Robert L. “Current Trends in Tribal Economic Development.” New England Law Review 37 (2002–2003): 517–22. As attorney for the Mashantucket Pequot, Gips describes the problems the tribe has had in securing loans, ultimately leading it to Malaysia to find funding. Also discusses the success that the tribe has had with Foxwoods. 3559. Goldstein, Edward S. An Analysis of the Proposed Yellowtail Afterbay Dam Hydroelectricity Plant on the Bighorn River in Montana. Harvard Project on American Indian Economic Development, John F. Kennedy School of Government, Cambridge, MA: Harvard University, May 1987. To correct environmental problems and generate revenue the Crow tribe planned construction of an eight-megawatt power plant on the Bighorn River. Based on low power prices, this is a risky economic venture, but if the tribe pursues the project, a contract with the Western Area Power Authority would reduce risk. 3560. Goodman, James M. “Resource Development and its Significance to the Future of the Navajo.” Journal of Cultural Geography 2 (Spring/Summer 1982): 101–9. There is a cultural risk for the Navajos as they push for economic development, but there is also the potential to minimize any damage.

3561. Gough, Robert. “Tribal Wind Power Development in the Northern Great Plains.” Natural Resources & Environment 19 (Fall 2004): 57–62. Describes the Rosebud Sioux Tribe’s wind power utility program and discusses the difficulty tribes had getting into the utility business based on a federal marketing regulations that blocked federal hydroelectric sales to tribes. This was changed in 1995. Wind power offers tribes the potential to be selfsufficient in supplying their energy needs. 3562. Gover, Kevin B. and Catherine B. Stetson. “Development of Natural Resources on Indian Lands.” Rocky Mountain Mineral Law Institute 43 (1988): 31–3-16. Uncertainty about the existing legal barriers and political activities are two of the greatest problems facing developers in making a decision to locate a business on the reservation. Joint tribal ventures open many doors and immunity from other sovereign regulations makes the reservation an attractive place for business. 3563. Gover, Kevin and Jana L. Walker. “Escaping Environmental Paternalism: One Tribe’s Approach to Developing a Commercial Waste Disposal Project in Indian Country.” University of Colorado Law Review 63, no. 4 (1992): 933–43. Congress did not include tribal communities in environmental legislation until 1986 with the passage of the Safe Drinking Water Act. Taking this act and subsequent legislation, the Campo Band in San Diego County developed a landfill as part of their economic development program. 3564. Graham, Lorie. “Securing Economic Sovereignty through Agreement.” New England Law Review 37 (2002–2003): 523–44. Studies the last quarter-century of court cases and concludes that these decisions have retarded tribal economic development by creating uncertainty. Cooperative agreements may enable tribes to move forward. 3565. Gregory, Hiram F. “The Louisiana Tribes: Entering Hard Times.” In Indians of the Southeastern United States in the Late 20th Century, edited by Anthony J. Paredes, 162–82. Tuscaloosa: University of Alabama Press, 1992. Hard times have resulted from the combination of federal budget cuts and Louisiana’s declining economic base. Tribes have responded with their own economic development initiatives, including bingo operations. Some of the tribes have found relief through land claims settlements.

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3566. Grimsrud, Richard M. “Doing Business on an Indian Reservation: Can the Non-Indian Enforce His Contract with the Tribe?” Brigham Young University Law Review, no. 1 (1981): 319–32. Tribal sovereign immunity is one factor that inhibits outside development on reservations by barring Indian government suits in state courts. In Lomayaktewa v. Hathaway, the Hopi who did not accept the tribal government’s Black Mesa coal lease, sued to stop it, but the Ninth Circuit upheld tribal sovereign immunity. For businesses, the best course is to enter into a contract with the tribes’ Indian Reorganization Act federally chartered corporations because in their charters the organizations waived sovereign immunity. 3567. Haddock, David D. and Robert J. Miller. “Sovereignty Can Be a Liability: How Tribes Can Mitigate the Sovereign’s Paradox.” In Self-Determination: The Other Path for Native Americans, edited by Terry Lee Anderson, Bruce L. Benson, and Thomas E. Flanagan, 194–213. Palo Alto, CA: Stanford University Press, 2006. Some aspects of tribal sovereignty threaten potential investors and thus impede tribal economic development. Tribes sometimes need to consent to reduce their sovereignty to make mutually beneficial deals. Judiciaries should consider long-term goals rather than simply seeking damages for past inequities. Tribes should consider reversing “the default employed for waivers of tribal sovereign immunity” and “bring disputes before a pre-designated arbitrator.” 3568. Halbritter, Ray, with Steven Paul McSloy. “Empower of Dependence: The Practical Value and Meaning of Native American Sovereignty.” New York University Journal of International Law and Politics 26 (Spring 1994): 531–72. Chronicles the recent Oneida success in breaking the cycle of dependency. Using their tribal sovereignty and taking advantage of New York’s inability to tax them, they started with cigarette sales and worked their way to a casino that provides them revenue to assume greater control over their own destiny. 3569. Hanna, Tassie. “Tribal Governments—Limits on Debt Liability of Tribal Corporations: Navajo Tribe v. Bank of New Mexico.” New Mexico Law Review 14 (Fall 1984): 515–29. The case began when the Navajo Housing and Development Authority defaulted on loans. The Tenth Circuit Court of Appeals applied the regulations “that were applicable to federal government corporations.” A tribal government is only “liable for the debts of its

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corporation if, and to the extent, the tribe expressly pledged it assets.” 3570. Hanson, Randel D. “Half Lives of Reagan’s Indian Policy: Marketing Nuclear Waste to American Indians.” American Indian Culture and Research Journal 25, no. 1 (2001): 21–44. Hanson considers the marketing of nuclear waste to tribes as “radioactive colonization” and “a new stage in U.S.–Indian relations in which voluntarism is the hallmark of dispossession.” In this case, Native land is not being literally divested, but it is being effectively divested in that the federal government and corporations are taking advantage of the special status of reservation lands to dispose of waste that renders those lands useless. 3571. Harper, Allan G. “Economic Factors in SelfGovernment.” The American Indian 5, no. 2 (1949): 17–22. Discusses a tribal liquidation of the revolving cattle program. After the loan was paid, the members took their per capita. The Indian Office did not provide a marketing specialist and this project was an illustration of using a white economic system that tribal leaders do not support. Successful economic ventures are necessary for home rule. 3572. Harriman, Helga H. “Economic Conditions in the Creek Nation, 1865–1871.” Chronicles of Oklahoma 51 (Fall 1973): 325–34. With the positive assistance of federal agents, the tribe made great strides agriculturally and toward economic assimilation in the Reconstruction Era. 3573. Harris, James J. “An Overview of the North Dakota Indian Economy.” North Dakota Quarterly 44 (Autumn 1976): 52–66. Presents a “disheartening” assessment of tribal economics. Despite positive developments, tribal leaders’ major concerns remain economic and social conditions of tribal communities. The most important economic trend is that tribal members are more active in their community economic programs, and tribal leaders often encouraged this activity. 3574. Harvey, Sioux. “Two Models to Sovereignty: A Comparative History of the Mashantucket Pequot Tribal Nation and the Navajo Nation.” American Indian Culture and Research Journal 20, no. 1 (1996): 147–94. Agrees with scholars who claim that sovereignty is a necessary ingredient for successful tribal economic development, but argues that the reverse is also true—that pursuing economic development is a learning process for tribes that is a prerequisite for

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attaining sovereignty. Both tribes studied undertook the process in culturally relevant ways. 3575. Henderson, Al. “Tribal Enterprises: Will They Survive?” In Economic Development in American Indian Reservations, Development Series No. 1, 114–18. Albuquerque: Native American Studies, University of New Mexico, 1979. Discusses issues that will affect Navajo efforts to develop its private sector, and focuses on Navajo government enterprises. Regaining control over the tribe’s natural resources and long-term economic development are necessary steps. 3576. Henderson, Al. “The Navajo Nation: Economic Development and Employment.” In American Indian Lawyer Training Program, Seminar on Indian Natural Resource Law and Finance 367–79 Oakland, CA: American Indian Lawyer Training Program, 1980. Resource utilization is a new area of employment for Navajos who historically have been pastoralists. This will be a difficult task since “the tribe receives an average of only 8.5% of the market value of its resources.” This is the result of low royalty rates in current coal leases. Despite millions of dollars being spent on employment activities, there remains a great disparity between Navajo employment and the rest of the nation. 3577. Henson, Eric and Luxman Nathan. Tool of Sovereignty: The Crow Commercial Code. Harvard Project on American Indian Economic Development, John F. Kennedy School of Government, Cambridge, MA: Harvard University, April 1998. As the Crow Nation seeks economic development, the drafting of a commercial code is an important step. Currently Crow residents face loan difficulties and business are reluctant to invest since no recourse is available to them for redress. 3578. Hill, Jamie. “Toward Economic Self-Determined Economics: Assertion of Sovereignty Ignites Practical Solutions.” Native Americas 18 (Fall/Winter 2001): 40–47. Tribal control is the starting point for tribal economic health. This requires tribal sovereignty, local tribal institutions must be empowered to do the work, and cultural traditions must be respected. 3579. Hosmer, Brian C. and Colleen M. O’Neill, eds. Native Pathways: American Indian Culture and Economic Development in the Twentieth Century. Boulder: University of Colorado Press, 2004. Essays by various authors. In the introduction, O’Neill stresses the importance of understanding the “alternative pathways” American Indians have chosen to develop their economies as defying definition

as either traditional or modern. In the concluding chapter, the editors point to the link between sovereignty and economic development and argue that Indians are finding ways to pursue economic “decolonization” that meet their needs while respecting their cultural values. 3580. Hough, Henry W. Development of Indian Resources. Denver, CO: World Press, 1967. Provides positive examples of tribal economic development with emphasis on efforts to entice industries. Chapters focus on different forms of development and on the importance of OEO CAPs. Statistics are provided with extensive use of tables and charts, and numerous photographs are included. 3581. Huffman, James L. and Robert J. Miller. “Indian Property Rights and American Federalism.” In SelfDetermination: The Other Path for Native Americans, edited by Terry Lee Anderson, Bruce L. Benson, and Thomas E. Flanagan, 273–96. Palo Alto, CA: Stanford University Press, 2006. The wellbeing of Indian communities depends on economic development, which depends on a legal infrastructure that allows participation in the offreservation economic world. Uncertainty regarding tribal and individual property rights impedes beneficial economic development. 3582. Icenogle, John P. “Economic Development of Indian Reservations: Increasing Tribal Participation, Limiting Federal Control.” Tulane Law Review 48 (April 1974): 649–64. The revival of tribal sovereignty fostered selfdetermination and encouraged reservation economic development, wherein tribal people have participated in the decisions. Whether this direction leads to economic success will depend on turning tribal autonomy into tribal opportunity to use present resources and develop new resources. 3583. Ickes, Dennis R. “Tribal Economic Independence— The Means to Achieve True Tribal Self-Determination.” South Dakota Law Review 26 (Summer 1981): 494–528. Examines Sioux Country and the economic impediments that hinder reservation development including insufficient capital and commercial credit, excessive government control and oversight, the Bureau’s lack of business expertise to assist tribal members, isolation, jurisdictional conflicts, an unskilled labor force, and unsettled water rights. Ickes offers illustrations of tremendous opportunities. 3584. Jarboe, Mark A. “Fundamental Legal Principles Affecting Business Transactions in Indian Country.” Hamline Law Review 17 (Spring 1994): 417–46.

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Until recently, tribes were not major economic players, but their immunity from state regulations gives them economic power. There are several principles that prospective business partners from off the reservation will have to remember: tribal organization, scope of Indian Country, federal contract approval, tribal sovereign immunity, forums for dispute settlements, and substantive law of contract. 3585. Johnny, Ronald Eagleye. “Showing Respect for Tribal Law: Siting a Nuclear Waste MRS Facility.” Akwe:kon: A Journal of Indigenous Issues 11 (Spring 1994): 16–27. Money has driven the Fort McDermitt Paiute community to consider placing a nuclear waste site on the reservation. Despite the progress, tribal law does not permit this type of activity to take place on tribal lands. 3586. Jordon, David B. “Federal Indian Law: Tribal Sovereign Immunity: Why Oklahoma Businesses Should Revamp Legal Relationships with Indian Tribes after Kiowa v. Manufacturing Technologies, Inc.” Oklahoma Law Review 52 (Fall 1999): 489–513. The Supreme Court decided in Kiowa Tribe v. Manufacturing Technologies (1998) “that Indian tribes are immune from suit in state and federal courts on contracts preformed on or off reservations.” This case created hardships for businesses wanting to work with the tribes. Congress needs to pass legislation limiting tribal sovereign immunity. 3587. Jorgensen, Joseph G. “Indians and the Metropolis.” In The American Indian in Urban Society, edited by Jack O. Waddell and O. Michael Watson, 67–113. Boston, MA: Little, Brown, and Company, 1971. American Indian struggles with underdevelopment have resulted from their integration into the national political economy. Growing urban influence came at the expense of rural areas and of American Indians. The Northern Ute experience serves as a case study. 3588. Jorgensen, Joseph G. The Sun Dance Religion: Power for the Powerless. Chicago: University of Chicago Press, 1972. The Utes and Shoshones brought the plains Sun Dance to their communities at the end of the nineteenth century as a tribal response to capitalism, oppression, and underdevelopment. 3589. Jorgensen, Joseph G. “A Century of Political Effects on American Indian Society, 1880–1980.” Journal of Ethnic Studies 6 (Fall 1978): 1–82. Tribal communities were often powerless economically by 1880. As the metropolis grew and exploited tribal resources, outside forces assisted in creating a vast welfare system and bureaucracy to run tribal af-

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fairs. This in turn has created urban flight causing greater underdevelopment and dependency. 3590. Jorgensen, Joseph G. “The Political Economy of the Native American Energy Business.” In Native Americans and Energy Development II, edited by Joseph G. Jorgensen, 10–51, Anthropology Resource Center and Seventh Generation Fund, 1984. Corporations have continued to take advantage of tribes and the federal government has done more to assist the non-Indian interests than to protect tribes. CERT has been naive and unable to adequately assist tribes. 3591. Jorgensen, Miriam. Development Finance at Standing Rock Sioux Indian Reservation: Assessing a Proposal for Economic Rejuvenation. Harvard Project on American Indian Economic Development, John F. Kennedy School of Government, Cambridge, MA: Harvard University, February 1990. The Standing Rock Sioux lost much to the Oahe Reservoir. With pending federal compensation, the tribe will have funds to establish a “development corporation or bank” for grass-roots development. The White Mountain Apache have been involved in development finance for a long time with FATCO, a firewood and timber company that is the fifteenth largest sawmill in the country, and may provide a model for the Standing Rock people. For this development to succeed at Standing Rock, the tribal government must have specific roles and the tribes must work with the surrounding community. 3592. Jorgensen, Miriam. Linking Education and Research for Self-Determined Native American Development: What Can Be Done? Harvard Project on American Indian Economic Development, John F. Kennedy School of Government, Cambridge, MA: Harvard University, August 1994. Tribal leaders stress the need for executive education seminars, but the results are not as productive as the organization has hoped because of coordination problems. Still, the conference continues seeking ways to impart good leadership skills and exploring ideas on tribal organization. 3593. Jorgensen, Miriam and Jonathan Taylor. What Determines Economic Success? Evidence from Tribal and Individual Indian Enterprises. Harvard Project on American Indian Economic Development, John F. Kennedy School of Government, Cambridge, MA: Harvard University, June 2000. Political institutions, not economic institutions, are the foundational problems for reservation unemployment and lack of development. Despite this dismal picture, corporate governance seems to be one institution

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that works if they are politically insulated from governing bodies.

U.S. control over tribal resources set the stage for tribal poverty.

3594. Julnes, Theresa. “Economic Development as the Foundation for Self-Determination.” In American Indian Policy: Self-Governance and Economic Development, edited by Lyman H. Legters and Fremont J. Lyden, 151–74. Westport, CT: Greenwood Press, 1994. Report on a survey administered to tribal leaders asking how economic development decisions are made, what the perceived obstacles are and what assistance is needed. The survey is included as an appendix. The primary perceived problem “is not so much the inability of the Indian nations to use resources but rather their inability to get their resources to generate income.” They are externally dependent and are not yet in a position to use their resources to support self-governance.

3598. Kemp, Helen M. “Fallen Timber: A Proposal for the National Labor Relations Board to Assert Jurisdiction Over Indian-Owned and Controlled Businesses on Tribal Reservations.” Western New England Law Review 17, no. 1 (1995): 1–28. The 1937 National Labor Relations Act protects workers’ rights to organize, but it does not state if it applies to tribal reservations. The District Court of Columbia in Navajo Tribe v. NLRB decided that the act applied to private companies on the reservation employing both Indian and non-Indian workers, but tribal owned businesses are another matter. Kemp argues that the NLRA should apply to tribal enterprises.

3595. Kalt, Joseph P. Statement of Professor Joseph P. Kalt before the United States Committee on Indian Affairs, Harvard Project on American Indian Economic Development, John F. Kennedy School of Government, Cambridge, MA: Harvard University, September 1996. Since the passage of the 1970s self-determination legislation, tribes that exercise their sovereignty have been the backbone of successful reservation economic development. To succeed, tribes have to separate politics from everyday management and practice separation of powers. Outside reforms such as the IRA will not work. 3596. Kalt, Joseph P. and Stephen Cornell. “The Redefinition of Property Rights in American Indian Reservations: A Comparative Analysis of Native American Economic Development.” In American Indian Policy: Self-Governance and Economic Development, edited by Lyman H. Legters and Fremont J. Lyden, 121–50. Westport, CT: Greenwood Press, 1994. A set of case studies helps the authors formulate hypotheses about tribal economic development. Federal Indian policy has hindered tribal economic development. A large part of the problem is that the federal government, rather than tribes, is the de facto owner of reservations and the BIA has little incentive to foster economic growth. As tribes have come to own their resources since self-determination policy has advanced, they have done better economically. True sovereignty is a prerequisite for successful tribal economic development. 3597. Keller, Robert H. “An Economic History of Indian Treaties in the Great Lakes Region.” American Indian Journal of the Institute for the Development of Indian Law 4 (February 1977): 2–20.

3599. Kinley, Larry. “Potlatch Economics and Governing Ourselves Fully.” In Indian Self-Governance: Perspectives on the Political Status of Indian Nations in the United States of America, edited by Carol J. Minugh, Glenn T. Morris, and Rudolph C. Ryser, 63–70. Kenmore, WA: Center for World Indigenous Studies, 1989. The Lummi economy was traditionally based on accumulating and giving away wealth, and the economy was connected to their social and political life. As their self-sufficient mixed economy gave way to a narrow fur-trapping and fishing economy, and increased economic dependency, their way of life began to break down. In the 1960s, they began an economic recovery thanks to internal decision-making, increased trade, increased Lummi expertise and a positive capital and resource flow into the Lummi Nation. 3600. Knack, Martha C. “Indian Economies, 1950–1980.” In Great Basin, volume 11, edited by Warren L. D’Azevedo, Handbook of North American Indians, general editor William C. Sturtevant, 573–91. Washington, DC: Smithsonian Institution, 1986. Regional study surveying reservations individually and including numerous statistical tables. These tribal economies remain distinct from non-Indian economies but are very similar to each other. Land claims awards injected capital but many of these funds went toward per-capita payments. Ranching has declined, infrastructure has improved, and economic bases remained weak and marginal. 3601. Kunitz, Stephen J. “Underdevelopment and Social Services on the Navajo Reservation.” Human Organization 36 (Winter 1977): 398–406. Discusses the growing importance of the service sector on the Navajo Reservation as a potential source of employment for Navajo people.

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3602. Lacey, Eric Jonathan. “Manifest Destiny’s New Face: “Soft-Selling” Tribal Heritage Lands for Toxic Waste.” Georgetown Law Journal 92 (January 2004): 405–33. In 2001, the Shoshone-Bannock sold part of their reservation to the FMC Corporation. Tribal members agreed to permit the company to cap their waste ponds. The tribe’s sovereignty made it an attractive place to dump waste. 3603. LaDuke, Winona. “Tat’e: The Dakota Winds.” Native Americas 21 (Fall and Winter 2004): 52–63. The opportunity exists for the large casino tribes to enter into energy agreements with the large land holding tribes of South Dakota, North Dakota, and Montana regarding joint wind energy ventures. This would be a winning economic program for both the wealthiest and the poorest tribal nations. 3604. LaFontaine, Frank. “The Native American Credit Problem.” American Indian Law Review 2 (Summer 1974): 29–40. Most tribal credit problems stem from Indian property being held in trust and not alienable. That makes creditors unwilling to extend credit to the tribal community. The solution is a federal credit program. 3605. Lamphere, Louise. “Traditional Pastoral Economy.” In Economic Development in American Indian Reservations, Development Series No. 1, 78–90 Albuquerque: Native American Studies, University of New Mexico, 1979. The Navajo economy went from being a relatively self-sufficient “natural economy” to integration with the U.S. economy in a dependent and underdeveloped status. Navajos were able to adapt the matrilineal kinship economic organizational system of the pastoral era to the era in which wage work became dominant, but they no longer control the economy. 3606. La Vere, David. “Minding Their Own Business: The Kiowa–Comanche–Apache Business Committee of the Early 1900s.” In Native Pathways: American Indian Culture and Economic Development in the Twentieth Century, edited by Brian Hosmer and Colleen O’Neill, 52–65. Boulder: University of Colorado Press, 2004. First meeting in 1899, the committee found ways to combine traditional ways with modern economic development. They did so by focusing on adoptions and enrollments, thus finding new kin to assist them and encouraging sharing and reciprocity. 3607. Lee, Andrew J. From Planning to Implementation: Integrated Planning at the Yakama Indian Nation. Harvard Project on American Indian Economic De-

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velopment, John F. Kennedy School of Government, Cambridge, MA: Harvard University, April 1996. The Yakama integrated planning process brings land and natural resources, economic development, and cultural and human resources together in a planning document. This is used to guide future decisions, but can only work when a tribal nation’s economic goals and programs are truly integrated. 3608. Leonard, Louis G., III. “Sovereignty, Self-Determination, and Environmental Justice in the Mescalero Apache’s Decision to Store Nuclear Waste.” Boston College Environmental Affairs Law Review 24 (Spring 1997): 651–93. The tribe decided to install a monitored retrievable storage system. In the name of tribal self-determination, the tribe will most likely move forward with this project and the best way is to have Apache consensus. 3609. Limas, Vicki J. “Application of Federal Labor and Employment Statutes to Native American Tribes: Respecting Sovereignty and Achieving Consistency.” Arizona State Law Journal 26 (Fall 1994): 681–746. Title VII of the Civil Rights Act of 1964 and Title I of the Americans with Disabilities Act of 1990 exclude tribes from specific labor regulations. Since the remaining body of law is silent on this issue, reservation employers are subject to lawsuits. Any congressional interference in reservation labor relations is a barrier to tribal self-rule and hinders the goals of self-determination and economic development. 3610. Ludwig, Ann and James Schowalter. Financing American Indian Economic Development, An Analysis and Organizational Structure for S. 721, The Indian Development Finance Corporate Act. Harvard Project on American Indian Economic Development, John F. Kennedy School of Government, Cambridge, MA: Harvard University, April 1988. Off-reservation agencies provide the most dollars for tribal development while the internal sources include trust assets, tribal savings, and individuals. This legislation was intended to create a banking system that would work on reservations throughout the country. This bank cannot replace markets, but will serve only as a conduit between funding sources and reservation development. 3611. Lurie, Nancy Oestriech. “Money, Semantics, and Indian Leadership.” American Indian Quarterly 10 (Winter 1986): 47–64. Tribal factionalism has been exacerbated by an “imposed financial situation that was almost designed to create internal dissension and paralyze economic development.” What non-Indians look for in terms of money management, and therefore which

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tribal leaders they applaud, often contrasts with tribal views on the meaning of money, greed, jealousy and leadership. 3612. McFeeley, Mark. “Need For a Federal Policy in Indian Economic Development.” New Mexico Law Review 2 (January 1972): 71–80. In their quest for economic development, some tribes have begun to negotiate long-term leases with developers to construct hotels and other structures. As this occurs, states have been trying to extend their authority to collect income taxes from these projects. This has happened on the Agua Caliente Reservation in southern California. Three cases involving this group have been started and the Ninth Circuit Court of Appeals upheld the state’s right. The Supreme Court should overturn the decision. Other issues for tribes are property taxes and subdivision and zoning ordinances. 3613. McGovern, Dan. The Campo Indian Landfill War: The Fight for Gold in California’s Garbage. Norman: University of Oklahoma Press, 1995. Environmentalist groups argue that plans to site landfills on Indian lands, such as one on the Campo Indian Reservation in California, represent environmental racism, but tribes may see these landfills as necessary forms of economic development. The Campos believe the landfill offers hope and have few other economic options. McGovern considers this complex situation and his ambivalence about it. 3614. McHugh, Laurence A. “The Four Corners Power Complex: Pollution on the Reservation.” Indiana Law Journal 47 (Summer 1974): 704–24. The construction of coal-fired power plants illustrates a common “conflict between economic development and the maintenance of a high level of environmental quality.” As plants grew, Secretary Udall would not approve any agreement unless everyone, including the Navajos, accepted the terms. 3615. McPherson, Robert S. Navajo Land, Navajo Culture: The Utah Experience in the Twentieth Century. Norman: University of Oklahoma Press, 2001. Explores agricultural development, herding and weaving, the trading economy, tourism, and mineral development. Navajos were adaptable in their efforts to shape their own economy while economic change, in turn, helped alter their culture. Discussion includes livestock reduction, oil development, and uranium mining. 3616. Malloy, Robin Paul. “Letters from the Longhouse: Law, Economics and Native American Values.” Wisconsin Law Review, no. 4 (1992): 1569–642.

Explains the reasons for tensions between tribal and non-tribal communities and the different definitions and processes used to reach each culture’s economic and legal objectives. 3617. Manuel, Henry F., Juliann Ramon, and Bernard L. Fontana. “Dressing for the Window: Papago Indians and Economic Development.” In American Indian Economic Development, edited by Sam Stanley, 511–77. The Hague: Mouton Publishers, 1978. A series of case studies of economic development activities reveals a poor record of success. The authors also study the reservation’s historic development, tribal political and institutional structures, and relations with federal agencies. 3618. Markowitz, Kristal. “Cultural Tourism: Exploration or Exploitation of American Indians?” American Indian Law Review 26 (2001–2002): 233–60. Provides information to aid tribes in developing cultural tourism for socio-economic gain. It includes brief analysis of legislation affecting tribal tourism. Tribes must balance their needs with those of the tourists. 3619. Marston, Lester J. and David A. Fink. “The Indian Commerce Clause: The Reports of Its Death Have Been Greatly Exaggerated.” Golden Gate University Law Review 16 (Spring 1986): 205–43. Recent courts have not applied the Commerce Clause, relying instead “upon preemptions and other analytic models to gauge the limits of state authority on Indian reservations.” The Commerce Clause should return because federal policy encourages selfdetermination and economic self-sufficiency, and “Congress, under the authority of the Commerce Clause,” regulates several tribal economic enterprises. 3620. Matt, Clayton. “Tribal Management of Hydropower Facilities.” In Tribal Water Rights: Essays in Contemporary Law, Policy, and Economics, edited by John E. Thorson, Sarah Britton, and Bonnie G. Colby, 213–30. Tucson: University of Arizona Press, 2006. A member of the Confederated Salish and Kootenai Tribes discusses the history and management of Kerr Dam. Buying the dam would contribute to the tribes’ resource management programs and provide more than simply economic benefits. 3621. Mekeel, H. Scudder. “The Economy of a Modern Teton Dakota Community.” Yale Publications in Anthropology, No. 6. New Haven, CT: Yale University Press, 1936. Three generations have experienced different means of living. The local economy outside the

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reservation cannot absorb the available labor force. Efforts to make farming part of their world have not made agriculture part of their value system. 3622. Mika, Karin. “Private Dollars on the Reservation: Will Recent Native American Economic Development Amount to Cultural Assimilation.” New Mexico Law Review 25 (Winter 1995): 23–34. Tribal communities are poor, and as tribal leaders have sought development, they have made both economic and cultural compromises. Gaming provides an illustration of both sorts of compromise. 3623. Miller, Robert J. “Economic Development in Indian Country: Will Capitalism or Socialism Succeed?” Oregon Law Review 80 (Fall 2001): 757–859. Historic overview of tribal economic activities, federal interference in these activities, and tribal efforts to rebuild their reservation economies under the leadership of tribal leaders and their governing instruments. The private market economy is well suited to tribal communities. 3624. Miner, H. Craig. The Corporation and the Indian: Tribal Sovereignty and Industrial Civilization in Indian Territory. Columbia: University of Missouri Press, 1976. Unable to unite for their protection, tribes were unable to stave off the attack on their lands and resources after the Civil War by railroad, livestock, coal, and oil interests. Some members of the tribes acted for their own benefit and thus aided the corporations. 3625. Mohawk, John C. “Indian Economic Development: The U.S. Experience of an Evolving Indian Sovereignty.” Akwe:kon Journal 9 (Summer 1992): 42–49. If tribal nations do nothing to develop their economies, economic inactivity can harm their cultures. Taking control of economic development is a necessary step for sovereigns, but instead of fighting jurisdictional battles, tribes will have to protect their material interests. 3626. Morrison, James D. “Problems in the Industrial Development of the Choctaw Nation, 1865–1907.” Chronicles of Oklahoma 32 (Spring 1954): 70–91. The Choctaws wished to develop their economy but needed the help of non-Indians to do so after the abolition of black slavery. Through permit systems and tribal laws the Nation tried to limit the power of these non-Indians to appropriate tribal resources and sovereignty. However, in collusion with some tribal members, non-Indian farmers, ranchers, miners, and timber interests were able to subvert these protections. 3627. Morrison, Scott and Leanne Howe. “The Sewage of Foreigners: An Examination of the Historical Prece-

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dent for Modern Waste Disposal on Indian Lands.” Federal Bar News & Journal 39 (July 1992): 370–78. In 1990, a waste management firm contacted the Mississippi Band of Choctaw to host a waste dump. This started a tribal conflict over the issue of locating the waste facility on the reservation. An unconstitutional tribal vote was held to defeat the project. 3628. Mudd, John O. “Jurisdiction and the Indian Credit Problem: Considerations for a Solution.” Montana Law Review 33 (Summer 1972): 307–16. Tribal members have problems accessing credit. Concurrent jurisdiction might be the best solution to this problem after Kennerly. 3629. Murray, David W. “Self-Sufficiency and the Creation of Dependency: The Case of Chief Isaac, Inc.” American Indian Quarterly 16 (Spring 1992): 169–88. Argues that “. . . local native control of economically developed resources has served, perversely, to accelerate their dependency on external markets and the alien political institutions that support them.” Tribal experiences in Canada and Alaska are included, and Murray equates the negative effects of ANCSA with the parallel effects of the General Allotment Act. 3630. Nagel, Joane, Carol Ward, and Timothy Knapp. “The Politics of American Indian Economic Development: the Reservation/Urban Nexus.” In Public Policy Impacts on American Indian Economic Development, edited C. Matthew Snipp, 39–76. Albuquerque: Native American Studies Institute for Native American Development, University of New Mexico, 1988. The reservation/urban division of the Indian population is both a hindrance to economic development and a potential source for improvement. Urban Indians can assist in reservation development. 3631. Neely, Sharlotte. “Adaptation and the Contemporary North Carolina Cherokee Indians.” In Indians of the Southeastern United States in the Late 20th Century, edited by Anthony J. Paredes, 29–43. Tuscaloosa: University of Alabama Press, 1992. Their successful adaptation to change over the last century has included their successful endeavor to revive their economy through tourism and especially high stakes bingo. Neely also considers their educational, housing, and health status and the issue of blood and tribal membership. 3632. Nelson, Harry W. Analysis of Loan Performance in the Bureau of Indian Affairs’ Direct and Guaranteed Loan Programs. Harvard Project on American Indian Economic Development, John F. Kennedy School of Government, Cambridge, MA: Harvard University, May 1987.

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The BIA provides loans to tribes, individuals, and organizations. The last ten years of loan summaries demonstrate that old loans were harder to collect than new loans reflecting the hard times of the 1970s. Reloaning was also examined. The greater the economic development, the greater the loan repayment. 3633. Newbold, Lindsay A. “Application of the ADEA to Indian Tribes: EEOC v. Fond Du Lac Heavy Equipment & Construction Co., 986 F. 2d 246 (8th Cir. 1993).” Washington University Journal of Urban and Contemporary Law 46 (1994): 381–90. The 1967 Age Discrimination in Employment Act is silent regarding tribes. Marvin Pellerin, a tribal member, sought employment with a tribal owned company, but was denied a job due to his age and subsequently filed a complaint with EEOC. In the case that followed, both the district and appeals courts sided with the tribe, ruling that ADEA did not apply to tribal nations since they are distinct political entities that have inherent sovereignty. 3634. Olsen, Darryll. “Energy Council Fires in the Pacific Northwest.” American Indian Journal of the Institute for the Development of Indian Law 8, no. 1 (1982): 11–19. Congress passed the Pacific Northwest Electric Power Planning and Conservation Act, which has provisions that specifically deal with tribal participation in the region’s energy planning. 3635. O’Neill, Colleen. Working the Navajo Way: Labor and Culture in the Twentieth Century. Lawrence: University Press of Kansas, 2005. Navajos were able to adapt to a broader market economy without surrendering their traditional ways. Navajos were first reluctant to join labor unions, which they viewed as “white” institutions, but increasingly did so after the 1950s as they began to view unions as “Navajo.” Particular focus is given to coal miners, railroad workers, and weavers. 3636. “Operational Considerations in the Organization of Indian Business Enterprises.” American Indian Journal of the Institute for the Development of Indian Law 8, no. 1 (1982): 2–5. Examines the major reservation players such as the council and the tribal enterprise and the different goals that these two organizations have on the reservations. 3637. Ortiz, Roxanne Dunbar. “Sources of Underdevelopment.” In Economic Development in American Indian Reservations, Development Series No. 1. Albuquerque: Native American Studies, University of New Mexico, 1979, 61–75.

Profit motivated European colonial and U.S. Indian land policies and more recently corporations threaten tribal sovereignty. U.S. economic development and Indian land policies are linked as is U.S. economic development and tribal underdevelopment. 3638. Ortiz, Roxanne Dunbar. “Choices and Directions.” In Economic Development in American Indian Reservations, Development Series No. 1, 151–56. Albuquerque: Native American Studies, University of New Mexico, 1979. Weighs pros and cons of the position favoring tribal economic industrialization and modernization and that which opposes doing so. The proper solution requires Indian governmental planning and assistance from the majority of community residents. 3639. Ostler, Jeffrey. “‘The Last Buffalo Hunt’ and Beyond: Plains Sioux Economic Strategies in the Early Reservation Period.” Great Plains Quarterly 21 (Spring 2001): 115–30. The Plains Sioux survived the early reservation period, and reduced their dependency on the federal government, by creatively employing a variety of economic strategies, some of which exemplified cultural continuity and others, which took advantage of limited federal programs. They also sought limited opportunities for wage work. 3640. Owens, Nancy. “Economic Planning.” In American Indian Lawyer Training Program, ed. Seminar on Indian Natural Resource Law and Finance 315–23. Oakland: American Indian Lawyer Training Program, 1980. Tribal leaders must realize that long-term plans are the most important thing they can do for tribal economic development. Owens employs the term “economic sovereignty” to emphasize the importance of long-term planning if tribes are going to diversify their economy. The Northern Cheyenne serve as a case study. 3641. Parman, Donald. Indians and the American West in the Twentieth Century. Bloomington: Indiana University Press, 1994. Studies the relationship between Indian affairs and Western development, and among Indians and Westerners. Westerners desired Indian resources, but the nature of these desires and of Indian economies changed as the Western economy shifted from one based on farming and ranching to a mixed urban and industrial one. After World War II, corporations replaced Westerners as the primary groups seeking Indian resources, and the war was also a turning point for Indians in their quest for sovereignty.

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3642. Pickering, Kathleen. “Culture and Reservation Economies.” In A Companion to the Anthropology of American Indians, edited by Thomas Biolsi, 112–29. Malden, MA: Blackwell Publishing, 2004. Poverty and cultural displacement accompanied the creation of reservations. Reservation economies were different than pre-reservation tribal economies. Land base preservation, development of wage work, and defending sovereignty are primary concerns for contemporary reservation economic planners. They must understand how tribal economies are tied to regional and even global economies. 3643. Pickering, Kathleen. “Decolonizing Time Regimes: Lakota Conceptions of Work, Economy, and Society.” American Anthropologist, New Series, 106, no. 1 (2004): 85–97. Despite policies geared toward the newer capitalist economy, the older way in which production is based on need still dominates the Pine Ridge economy and the residents have ignored task oriented work. 3644. Pierson, Annette M. and Frederick Tombar III. AmeriCorps: A Promise to Indian Country? An Assessment of the Potential Impact of the AmeriCorps Program. Harvard Project on American Indian Economic Development, John F. Kennedy School of Government, Cambridge, MA: Harvard University, April 1994. Congress created AmeriCorps in 1993 and Pine Ridge wants to participate in the program because there is a strong correlation between the program’s goals and Pine Ridge’s needs. The results should be positive, but tribal government will play a crucial role in insuring that the economic results are longterm. 3645. Pommersheim, Frank. “Economic Development in Indian Country: What Are the Questions.” American Indian Law Review 12, no. 2 (1984): 195–217. The broad economic development plans that are developed for tribal communities often stand in opposition to their cultural values. Failures point to the need to ask new questions and come up with better ideas. 3646. Pottinger, Richard. “The American Indian Development Bank?” American Indian Culture and Research Journal 16, no. 1 (1992): 137–63. This commentary documents the failed effort to pass the Indian Finance Corporation Act in 1990, which would have established a finance corporation to aid in private sector development. Pottinger argues that an American Indian Development Bank could

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help solve problems of underdevelopment in Native communities 3647. Preston, Richard, ed. Indian Industrial Development Manual, for and by Native Americans. Wenham, MA: AIDC Educational Foundation, 1975. This manual was commissioned by the AIDC Educational Foundation in 1974 and written by American Indian authors under the supervision of an editorial board. Its aim is to promote reservation industrial development driven by Indian people. Topics include plan review procedures, organizational development, industrial park sites, financing, and public relations. Wilbur Paul, Jr. explains the unique status of tribes and the context of development on reservation lands and urges developers to be sensitive to tribal concerns. John Borbridge Jr. highlights special circumstances involved in economic development efforts in Alaska, including ANCSA. 3648. Purkey, Andrew. The Crow Tribal Government and Economic Development. Harvard Project on American Indian Economic Development, John F. Kennedy School of Government, Cambridge, MA: Harvard University, May 1988. The Crow tribe wants to gain control over its human and natural resources and sever the tribe’s dependency on the BIA. To do so, the tribe will have to develop institutions to manage a reservation economy to eliminate unstable decision-making and develop a stronger leadership role, and better financial institutions for managing funds. 3649. Real Bird, Richard. In Search of Peace and Prosperity: The Crow Tribal Struggle for Economic Sovereignty, An Address to Harvard University. Harvard Project on American Indian Economic Development, John F. Kennedy School of Government, Cambridge, MA: Harvard University, April 1988. In trying to preserve tribal sovereignty and develop economic freedom, the Crow people face many difficult problems. These include the absence of trained business managers, insufficient funds to pay them, Supreme Court decisions that restrict Crow political decisions, and federal restrictions placed on the tribe’s right to legal counsel of their choice. 3650. Record, Ian Wilson. “Pine Ridge Renaissance: From the Ground Up, Sovereignty Can Be Real.” Native Americas 20 (Spring 2003): 54–59. The Pine Ridge Area Chamber of Commerce has provided a boost to the reservation’s economic welfare by encouraging the development of tribal businesses. It is a system that allows the people to network with other reservation businesses by creating a shorter economic learning curve.

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3651. Reese, Jim E. and Mary Fish. “Economic Genocide: A Study of the Comanche, Kiowa, Cheyenne and Arapaho.” Negro Educational Review 24 (January–April 1973): 86–103. Economic genocide drove the four tribes into despair. Bison destruction, land encroachment, and federal policy created economic discrimination. This was a conscious decision. In a companion piece that follows, Joseph M. Perry credits the authors for bringing tribal living conditions to the surface, focusing on the economic and social gap between whites and members of the four tribes. 3652. Reno, Phil. Navajo Resources and Economic Development. Albuquerque: University of New Mexico Press, 1981. Discusses Navajo economic history and the relationship between the Navajo economic system and the U.S. economy including the Navajo land, agriculture, forest resources, water, and mineral and energy resources. The tribe possesses more economically valuable natural resources than do most others but they face challenges in developing them including the lack of technology and capital, conflicts between the market and traditional land-based economy, and the federal trusteeship relationship. A comprehensive plan is needed to use income from these diminishing resources to create a viable Navajo economy before they run out. 3653. Reno, Phil. “Planning Indian Economic Development.” In Economic Development in American Indian Reservations, Development Series No. 1, 145–50. Albuquerque: Native American Studies, University of New Mexico, 1979. Chances for Indian governments to engage in successful planning must involve: “(1) Land-use planning, (2) Resource conservation, (3) Equity, and (4) Communities’ control of their own destinies.” 3654. Repole, Palma. “One Tribe’s Development of a Commercial Waste Facility in the Wake of Environmental Racism.” Great Plains Natural Resources Journal 1 (Spring 1996): 129–47. Instead of being the victim of environmental racism, the Campo Band of Mission Indians in California broke the theoretical mold of environmental racism and embraced waste management through the development of technologies. This has been done in cooperation with federal and state authorities even though non-tribal neighbors want the project stopped. 3655. Rice, Eric M. Doing Business: An Evaluation of Policy Alternatives to Encourage Private Enterprise on Indian Reservations. A Report to the Native American Rights Fund, January 11, 1990.

A range of business models can be employed when doing business on reservations. Also, there are different tax options within those models. Rice discusses tax options in the areas of employment incentives, corporate income tax incentives, capital tax credit policies, and non-tax operations. 3656. Riggs, Christopher K. “American Indians, Economic Development, and Self-Determination in the 1960s.” Pacific Historical Review 69 (August 2000): 431–63. Explains why the failed attempt to pass the Indian Resources Development Bill in 1967 sparked controversy. American Indian opponents objected that the legislation was an extension of termination that threatened tribal lands and sovereignty. In defeating the bill, Native Americans also found a valuable opportunity to clarify their views on self-determination. 3657. Ritzenthaler, Robert. “The Impact of Small Industry on an Indian Community.” American Anthropologist 55 (January–March 1953): 143–48. The Lac Du Flambeau Reservation was classified as a poverty-stricken Wisconsin Chippewa community. The Simpson Electric Company from Chicago seeking a labor supply and a branch location went to Lac Du Flambeau. This was the first wage labor since the logging days and it was a venture in teaching punctuality. Electricity was installed in homes and wages flowed to non-Indian businesses. Bringing jobs to the reservation was more successful than taking the people to the urban settings for employment. 3658. Robbins, Lynn A. “Navajo Labor and the Establishment of a Voluntary Workers Association.” Journal of Ethnic Studies 6 (Fall 1978): 97–112. The construction of the Page, Arizona power plant created labor problems among Navajo workers, union workers, and contractors. Neither the tribe nor the federal governments were ready to deal with unions, but eventually the tribe developed a relationship with the union and has dealt with more union issues. Navajos are willing to fight to work and have done so through the Navajo Construction Workers Association. 3659. Robbins, Lynn A. “Navajo Workers and Labor Unions.” Southwest Economy & Society 3 (Spring 1978): 4–23. In 1958, the Navajo council banned labor unions and supported right to work policies. The tribal ordinance was contrary to U.S. policies that provided workers the right to unionize. In 1971, Navajo workers created the Navajo Construction Workers Association that attempted to correct labor problems and created a loose affiliation with the AFLCIO.

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3660. Rosser, Ezra. “This Land Is My Land, This Land Is Your Land: Markets and Institutions for Economic Development on Native American Land.” Arizona Law Review 47, no. 2 (2005): 245–312. The dominant neo-classical model and the ascendant New Institutional Economics model are two potential approaches to creating viable reservation economic development. Focusing on the Navajos, the author believes that the ongoing tribal revival is responsible for the current development of light industry on the reservation. 3661. Ruffing, Lorraine Turner. “Navajo Economic Development: A Dual Perspective.” In American Indian Economic Development, edited by Sam Stanley, 15–86. The Hague: Mouton Publishers, 1978. Considers Navajo economic history, federal actions, and contemporary economic development efforts, including tribal government activities. The best course is to expand traditional activities (e.g., raising livestock), which have been flexible over time and rely on land and labor. Capitalistic entrepreneurship conflicts with Navajo ways and may not yield maximum economic and social benefits. 3662. Ruffing, Lorraine Turner. “Dependence and Underdevelopment.” In Economic Development in American Indian Reservations, Development Series No. 1, 91–113. Albuquerque: Native American Studies, University of New Mexico, 1979. Outsiders, especially the DOI, control its natural resources to benefit other Americans. Ruffing explains how federal policy created this situation and offers suggestions of ways the Navajo Nation can gain greater control of its economy, including via labor-intensive activities. 3663. Ruffing, Lorraine Turner. “The Navajo Nation: A History of Dependence and Underdevelopment.” Review of Radical Political Economics 11, no. 2 (1979): 25–41. U.S. economic and political policies toward the Navajo have created underdevelopment. This is revealed when the wealth of Navajo resources are compared to the poverty of the Navajo people. Unequal trade and capitalism have encouraged the removal of Navajo resources to off-reservation users that reduce the Navajo Nation’s ability to bargain with multinationals and the U.S. 3664. Saavedra, Ronald T. Economics, Culture, Identity: The Case of the Aquinnah Cultural Center. Harvard Project on American Indian Economic Development, John F. Kennedy School of Government, Cambridge, MA: Harvard University, April 1999. The cultural center and the Aquinnah Wampanoag tribal government will have a relationship. The de-

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velopment of a strong cooperative tie will make the cultural center a reality. For this to occur all parties must understand their obligations and roles. The government will own the complex while the center must create a board and define its economic goals. 3665. Sasaki, Tom T. and Harry W. Basehart. “A Comparison of Income Sources in Two Indian Communities.” Human Organization 20 (Winter 1961–1962): 187–90. Compares the earned income of Navajos living at Rough Rock and Jicarilla Apaches. The latter community has a closed relationship with the BIA while the former has been struggling to establish a relationship with the BIA. The Apache relationship fosters dependency. 3666. Schaab, William C. “Indian Industrial Development and the Courts.” Natural Resources Journal 8 (April 1968): 303–30. If the Indian Resources Development Act of 1967 passes, federal courts will become forums for resolving disputes between tribal and non-tribal residents doing business on the reservations. The old view is that courts should not become involved in these issues unless Congress dictates so. 3667. Schifter, Richard. “Indian Reservation Development: Reality or Myth.” California Western Law Review 9 (Fall 1972): 38–56. As the nation embarked on a war against poverty, Congress passed an Indian Employment Act similar to other make work projects, arguing that the work ethic was strong in Indian country, but that tribal selfconfidence was hurt due to the inability to find employment. 3668. Schomp, Bonnie. “Administrative Law: Current Progress of Native American Broadcasting—Status of Indian Ownership.” American Indian Law Review 4, no. 1 (1976): 91–98. The 1934 Communications Act has not provided tribal communities with ownership of radio broadcasting businesses. The Federal Communications Commission has the authority to develop tribal radio businesses, but has declined to help minority communities enter broadcasting. 3669. Schusky, Ernest L. “Development by Grantsmanship: Economic Planning on the Lower Brule Sioux Reservation.” Human Organization 34 (Fall 1975): 227–36. The BIA has made it difficult for the Lower Brule Tribe to gain access to funds. For the last ten years, the tribe has been seeking its own funding in an effort to bypass the Bureau and to gain greater control

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over their own destiny. They are requesting many grants from federal agencies. This accommodation to the larger society illustrates that they are willing to solve their own problems. 3670. Schusky, Ernest L. “Political and Religious Systems in Dakota Culture.” In The Modern Sioux: Social Systems and Reservation Culture, edited by Ethel Nurge, 140–47. Lincoln: University of Nebraska Press, 1975. Missionary workers and the BIA agency employees both understand that they exert power and influence over tribal people, but neither group understands the full economic results of this influence. 3671. Schusky, Ernest L. Politics and Planning in a Dakota Indian Community. Vermillion: Institute of Indian Studies, State University of South Dakota, 1959. Congress’ unwillingness to grant funds to a Lower Brule economic development plan designed to promote independence from the BIA reveals its “lack of firm and consistent support” of termination policy. If land claims funds are paid per capita they can not be channeled to promote the tribal economy, and this will not be the tribal government’s fault. Indian communities are better off planning their own futures than relying on either the BIA or direction from social scientists. At least if the community fails on its own, it will learn from its mistakes. Federal funding aid must be separated from federal control. 3672. Schwechten, John L. “Epilogue: In Spite of the Law—A Social Comment on the Impact of Kennerly and Crow Tribe.” Montana Law Review 33 (Summer 1972): 317 Kennerly defines the importance of developing reservation credit options as well as debt collection. This case, along with Crow Tribe of Indians v. Deernose, closed the doors to reservation credit and loans to tribal consumers because the Supreme Court banned state collection of debts on the reservation. Lenders are now afraid to make uncollectible loans. The Crow people considered strengthening the tribal court as the first step in fixing the loan and debt problem by creating a legal—honorable relationship between debtor and loaner. 3673. Shirley, Tom. “The Advantages of Unionization and of a Strong Labor Policy.” In American Indian Lawyer Training Program, ed. Seminar on Indian Natural Resource Law and Finance, 381–85. Oakland, CA: American Indian Lawyer Training Program, 1980. As mineral development increases on reservations, both tribal workers and tribal resources are being exploited. To help the workers, the Navajos created the Office of Navajo Labor Relations in

1972. Despite hard times for workers, tribal hiring preference can help. 3674. Sicius, Francis J. “Spirit Myth and Economic Activity: The Harmonious World of Florida’s Indians.” St. Thomas Law Review 7 (Summer 1997): 465–72. Describes Florida tribal beliefs and behaviors toward the landscape and the importance of connecting the secular economy today with tribal environmental beliefs. 3675. Sitkowski, Robert. “Commercial Hazardous Waste Projects in Indian Country: An Opportunity for Tribal Economic Development through Land Use Planning.” Journal of Land Use & Environmental Law 10 (Spring 1995): 239–72. Tribes need to regulate wastes placed on reservations for economic development purposes. Unfortunately, the Resource Conservation and Recovery Act neither specifies tribes as states nor contains tribal participation clauses. Congress should amend the act to provide for tribal participation enabling tribes to develop comprehensive plans for waste disposal. 3676. Skibine, Alex. “The Cautionary Tale of the Osage Indian Nation Attempt to Survive Its Wealth.” Kansas Journal of Law & Public Policy 9 (Summer 2000): 815–45. Asks whether a tribe can be both sovereign and rich simultaneously. In the Osage case, their wealth is a result of federal legislation and their sovereignty has been restricted. 3677. Smith, Dean Howard. “The Issue of Compatibility between Cultural Integrity and Economic Development among Native American Tribes.” American Indian Research and Cultural Journal 18, no. 2 (1994): 177–206. For economic development to move forward on a reservation, the tribe must control its own resources and its own identity. Successful economic development can boost tribal identity, but for this to happen, the tribal culture must influence economic decisions. 3678. Smith, Dean Howard. Modern Tribal Development: Paths to Self-sufficiency and Cultural Integrity in Indian Country. Walnut Creek, CA: AltaMira Press, 2000. Tribes can gain self-determination and selfsufficiency by developing their resources and their economies in ways that reinforce their cultural identity. Smith advises tribes on how to develop a planning process, but each process must be specific to each tribe. Specific communities serve as examples in part two of the book, including the Rosebud Sioux and the Fort Belknap tribes.

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3679. Smith, Dean Howard. “Native American Economic Development: A Modern Approach.” Review of Regional Studies 24, no. 1 (1994): 87–102. Reservation economic development efforts must be sustainable. Using the four cycle Jacobs Model, Smith underscores the importance of tribal members ending their spending in border towns and developing export enterprises. 3680. Smith, Dean Howard. Toward a New Theory of Environmental Society. Harvard Project on American Indian Economic Development, John F. Kennedy School of Government, Cambridge, MA: Harvard University, October 1995. All cultures evolve in a search for structural compatibility and societies decline when subsystem compatibility is disrupted. The interdependence among economics, social organizations, and the environment reveals that much can be learned from tribal societies who encountered sub-system disruption. 3681. Smith, Philip J. “Indian Sovereignty and SelfDetermination: Is a Moral Economy Possible? An Essay.” South Dakota Law Review 36, no. 2 (1991): 299–328. Outsiders are asking that tribal self-determination reflect their values, not those of tribal cultures. Western models may not be suited to all tribal communities, especially if they seek a “moral economy of social ecology.”

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tive American Development, University of New Mexico, 1988. Snipp’s introduction to this collection of essays by various authors surveys ideas relevant to economic development in Indian Country. Tribal economic development has not necessarily translated into less poverty for Indian people. 3685. Stanley, Sam, ed. American Indian Economic Development. The Hague: Mouton Publishers, 1978. Anthropological articles by various authors endeavoring to develop “an Indian point of view” on economic development. Each chapter is a tribespecific case study, and the authors coordinated their research efforts. Stanley concludes the work with a list of recommendations, centering on the importance of tribal involvement and understanding of their internal diversity and cultural values. 3686. Stevens, Susan McCulloch. “Passamaquoddy Economic Development in Cultural and Historical Perspective.” In American Indian Economic Development, edited by Sam Stanley, 313–408. The Hague: Mouton Publishers, 1978. Federal social programs have often failed because this Maine community’s values were not properly understood. Stevens concludes with specific suggestions to advance tribal economic development.

3682. Snipp, C. Matthew. “The Changing Political and Economic Status of the American Indian: From Captive Nations to Internal Colonies.” American Journal of Economics and Sociology 45 (April 1986): 145–57. Many scholars are using the theory of underdevelopment to explain the relationship between tribes as resource developers and the U.S. and outside corporations. This model has several problems. The idea of internal colonies before and after resource extraction is a better model.

3687. Stoffle, Richard W. “Reservation-Based Industry: A Case from Zuni, New Mexico.” Human Organization 34 (Fall 1975): 219–28. In hope of increasing tribal self-sufficiency, an electronics plant was established at Zuni where both Zunis and Navajos work. To make the facility an economic success, a decentralized model was employed. The federal government, the tribe, and the private sector all had some similar and some different goals for the factory. Each had to make adjustments, but it was harder to determine the adjustments that tribal workers had to make.

3683. Snipp, C. Matthew. “American Indians and Natural Resource Development: Indigenous Peoples’ Lands, Now Sought after, Has Produced New Indian— White Problems.” American Journal of Economics and Sociology 45 (October 1986): 457–74. Before the American Revolution, tribes were sovereign. After the war, they became captive nations. This status limited their sovereignty and their ability to develop natural resources. With the escalating demand for energy, they are renegotiating their natural resource status and are more properly called internal colonies.

3688. Stull, Donald D. “Reservation Economic Development in the Era of Self-Determination.” American Anthropologist 92 (March 1990): 206–10. The self-determination era’s initiation gave tribal communities hope that they could improve their local economies. Funding increases in the 1960s and 1970s and the Indian Self-Determination and Education Assistance Act of 1975 initiated tribal control over their own affairs, but Congress and the President have not done their part to fulfill the words of self-determination.

3684. Snipp, C. Matthew, ed. Public Policy Impacts on American Indian Economic Development. Albuquerque: Native American Studies Institute for Na-

3689. Swimmer, Ross O. “A Blueprint for Economic Development in Indian Country.” Journal of Energy Law and Policy 10, no. 1 (1989): 13–31.

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Tribes need capital, not grants, to pursue economic development. Tribal governments and the BIA must work to develop tribal resources, including the people. Swimmer is optimistic that tribes can take control over their resources, create employment opportunities, and utilize their capital responsibly. 3690. Tahsuda, John. “Economic Self-Determination: Federal Policies Promoting Development of Reservation Economies.” New England Law Review 37 (2002–2003): 559–63. Describes congressional legislation and federal policies affecting tribal economies and tribal governments. 3691. Taliman, Valerie. “From Dependency to Development: Alternatives for Indian Country.” Native Americas 18 (Fall/Winter 2001): 32–39. Instead of gaming, the Navajos have been pushing toward micro-enterprise development with help from the First Nations Development Institute. The organization stresses that economic development must be in line with cultural values. The Lakota Fund is one of the movement’s leaders. 3692. Taylor, Benjamin J. “Indian Manpower Resources: The Experiences of Five Southwestern Reservations.” Arizona Law Review 10 (Winter 1968): 579–96. As the War on Poverty escalated, the federal government became interested in increasing tribal standards of living, a difficult goal because of high unemployment. One solution was to develop tribal resources and another to provide Native Americans an equal opportunity to compete for off-reservation employment. The last option is difficult because tribesmen desire to stay with relatives and kin. Education and training might provide the best options. 3693. Taylor, Jonathan B. Negotiating a Vision: Principles of Comprehensive Resource Planning and a Planning Process for the White Mountain Apache Tribe. Harvard Project on American Indian Economic Development, John F. Kennedy School of Government, Cambridge, MA: Harvard University, April 1992. The White Mountain Apache tribe faces the decision to enter the planning process. The BIA introduced the idea of the tribe drafting an Integrated Resource Management Plan. Planning can create economic efficiency, assert sovereignty, and improve institutional development such as a forestry department. 3694. Thorpe, Dagmar. “Navajo People’s Self-Empowerment.” Native Americas 15 (Summer 1998): 40–45.

Economic empowerment at Navajo requires changes in loan practices. Teaming up with the Lakota Fund and the First Nations Development Institute, Thorpe helped organize the A’da’n Community Loan Fund Association. This group gives loans to individuals working as micro-entrepreneurs. This approach permits the clan and kin system to help Native Americans regain employment and their self-respect. 3695. Trosper, Ronald. “Multicriterion Decision-Making in a Tribal Context.” Policy Studies Journal (Summer 1988): 826–42. When a tribe enforces its own laws on the reservation, the opportunity exists for the community to reach their economic goals. Trosper employs economic principles to create a model that may apply to tribal economic development planning. 3696. Trosper, Ronald L. “Traditional American Indian Economic Policy.” In Contemporary Native American Political Issues, edited by Troy Johnson, 139–62. Walnut Creek, CA: AltaMira Press, 1999 Discusses traditional Indian worldviews and the implications these views have for economic development. The four key values are community, connectedness, seventh generation, and humility. The Menominee tribe and Taos Pueblo serve as illustrations. 3697. Trosper, Ronald L. “Who Is Subsidizing Whom?” In American Indian Policy: Self-Governance and Economic Development, edited by Lyman H. Legters and Fremont J. Lyden, 175–89. Westport, CT: Greenwood Press, 1994. Contrary to stereotypes, the Confederated Salish and Kootenai tribes on the Flathead Indian Reservation in Montana are providing greater subsidies to non-Indians than they are receiving. They were denied the right to sell electricity generated by Kerr dam at opportunity cost. Dams and parks are two types of property that could be turned over to tribes to right past wrongs, but also to increase efficiency, as for example electricity produced by dams could be priced at opportunity cost. 3698. Turner, Alvin O. “Financial Relations between the United States and the Cherokee Nation, 1830–1870.” Journal of the West 12 (July 1973): 372–85. Financial issues were the primary causes of friction surrounding the Treaty of New Echota and they continued to cause Cherokee factionalism after 1835. 3699. Tuttle, Roger L. “Economic Development of Indian Lands.” University of Richmond Law Review 5 (Spring 1971): 319–29. One of a tribal government’s greatest powers is control over the decision to develop reservation as-

Economic Development and Labor Relations

sets. A tribe’s greatest asset is land, which is held in restricted status and getting funds to develop this land is difficult, as lenders do not want to risk loans. To correct this problem, Tuttle urges congressional legislation. 3700. Vetter, William V. “Doing Business with Indians and the Three ‘S’es: Secretarial Approval, Sovereign Immunity, and Subject Matter Jurisdiction.” Arizona Law Review 36, no. 1 (1994): 169–94. Many reservation business transactions require Department of Interior approval. Tribal governments also control many economic ventures and when problems arise, there is the issue of what court has subject matter jurisdiction. Planning is crucial so all parties doing business on a reservation are made aware of these issues. 3701. Vinje, David L. “Cultural Values and Economic Development on Reservations.” In American Indian Policy in the Twentieth Century, edited by Vine Deloria, Jr., 155–75. Norman: University of Oklahoma Press, 1985. Navajo, Zuni, and Standing Rock Sioux economic plans demonstrate that tribal independence has allowed them to develop plans that fit their needs. Standing Rock’s approach emphasizes decentralization while the Navajos have taken the opposite tack. 3702. Wahrhaftig, Albert L. “Making Do with the Dark Meat: A Report on the Cherokee Indians in Oklahoma.” In American Indian Economic Development, edited by Sam Stanley, 409–510. The Hague: Mouton Publishers, 1978. The “traditional” Cherokees in eastern Oklahoma maintain tribal traditions but are politically and economically disadvantaged. The tribal government exploits them. They resist outside control and have survived, but their economic outlook is poor. 3703. Webb-Vignery, June. “Won’t Anybody Hire an Indian?” Wassaja/The Indian Historian 13 (June 1980): 30–32. Arizona passed fair employment practices in the 1940s and 1950s requiring minority participation in the labor force and when that failed Congress intervened with the 1964 Civil Rights Act and its 1972 amendment. The tribes of Pima County compose 2.5 percent of the workforce, but have only 1.3 percent of the jobs. 3704. Weill, Richard and Greagory Dubois Erwin. “Building Blocks for Successful Financing.” In American Indian Lawyer Training Program, ed. Seminar on Indian Natural Resource Law and Finance, 445–83.

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Oakland, CA: American Indian Lawyer Training Program, 1980. Federal credit does not help tribes develop their natural resources. To overcome the problem, Congress should pass legislation permitting tribes to issue tax-free bonds to finance reservation resource development. 3705. Weiss, Lawrence David. The Development of Capitalism in the Navajo Nation: A Political-Economic History. Minneapolis, MN: MEP Publications, 1984. Part of a Marxist studies series analyzing Navajo economic development to 1978. There are similarities to the ways capitalism developed in Russia and the Navajo Nation. Both began as natural economies, experienced the expropriation of the direct producers and exploitation of female and child workers, and witnessed creation of a rural relative surplus population and migrant labor. Regional or national merchant capital displaced local merchant capital. Developmental differences between Russia and the Navajo Nation are also highlighted, including the fact that for the Navajos “an independently developed merchant capital seized control over the production of Navajo petty commodity producers.” 3706. Welch, Deborah. Economic Issues and Development. Philadelphia, PA: Chelsea House, 2006. Brief general overview of tribal economic development intended for a junior high or senior high reading audience. Chapters include self-determination, business development, and gaming. 3707. West, Mary Beth. “Natural Resources Development on Indian Reservations: Overview of Tribal, State, and Federal Jurisdictions.” American Indian Law Review 17, no. 1 (1992): 71–98. The present situation of reservation natural resource development is complex with three competing sovereigns. States and tribes have taxing authority over developers and states want to extend their environmental regulations onto reservations. Cooperation is necessary. 3708. White, Robert H. Tribal Assets: The Rebirth of Native America. New York: Henry Holt and Company, 1990. Examines four tribes’ economic development programs, and shows connections with past economic failures and the role of federal policy in these failures. Successful tribal economic futures rest with tribal sovereignty. 3709. Wulfhorst, J. D. and Jennifer Kamm. “America’s Nuclear Waste: Tribal Sovereignty, Injustice, and Technological Conflict.” In Future as Fairness: Ecological

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Justice and Global Citizenship, edited by J. D. Wulfhorst and Anne K. Haugestad, 47–62. Amsterdam: Rodopi, 2004. The Skull Valley Band of Goshute Indians’ leaders are pursuing an opportunity to host a temporary stor-

age facility for high-level nuclear waste. Do they have more rights to assert their sovereignty than do tribal members opposed to such actions? This illustrates that the question of where to store nuclear waste divides U.S. citizens.

Chapter 39 Agriculture and Livestock

3710. Anderson, Terry L. and Dean Lueck. “Agricultural Development and Land Tenure in Indian Country.” In Property Rights and Indian Economies, edited by Terry L. Anderson, 147–66. Lanham, MD: Rowman and Littlefield, 1992. Studies the effects of various reservation tenure arrangements on agricultural output. Allotted and trust lands have higher costs of production than do fee simple lands. Heirship and tribal rules and customs also increase costs.

ever since.” Focusing on this era and this trend can lead to the conclusion that allotment encouraged tribal economic and political autonomy and that the New Deal programs “crushed this emergent Indian bourgeoisie and its growing power.” 3714. Barsh, Russel Lawrence. “The Substitution of Cattle for Bison on the Great Plains.” In The Struggle for the Land: Indigenous Insight and Industrial Empire in the Semiarid World, edited by Paul A. Olson, 103–26. Lincoln: University of Nebraska Press, 1990. Studies how white intrusions, allotment, leasing and Indian Office actions affected Indian ranching. Indians did not benefit from the transition from bison hunting to cattle ranching.

3711. Anderson, Terry L. and Dean Lueck. “Land Tenure and Agricultural Productivity on Indian Reservations.” Journal of Law & Economics 35 (October 1992): 427–54. The different patterns of land tenure found on reservations today increase the cost of doing business. Trusteeship also imposes rules that add to the expenses of using reservation land productively.

3715. Booth, Peter M. “‘If the Cattle Are Going to Die, Let Them Die.’: Tohono O’odham and New Deal Conservation.” In Trusteeship in Change: Toward Tribal Autonomy in Resource Management, edited by Richmond L. Clow and Imre Sutton, 115–44. Boulder: University of Colorado Press, 2001. Tohono O’odham believed that one did not disrupt the natural order for fear of bringing evil on them, and U.S. conservation programs were often contrary to their world view. They separated their IRA from their range practices because they were not commercial ranchers, but rather subsistence farmers who believed that range management threatened their economic independence.

3712. Archabeau, Rain. “Rosebud Sioux Tribe v. McDivitt, Hog Farm Corporation in Indian Country Lacks Standing in Federal Court to Challenge BIA Action Voiding Land Lease.” Great Plains Natural Resources Journal 7 (Fall 2005): 244–65. In 1998, the Rosebud Sioux Tribe entered into a hog raising contract with Sun Prairie. After a new council was elected, tribal leaders rescinded the contract. The Court of Appeals panel ruled that Sun Prairie had no standing and dismissed the case. The tribe requested that the Department of Interior protect it from potentially environmentally damaging endeavors.

3716. Carlson, Leonard A. “The Economics and Politics of Irrigation Projects on Indian Reservations, 1900–1940.” In The Other Side of the Frontier: Economic Explorations into Native American History, edited by Linda Barrington, 235–58. Boulder, CO: Westview Press, 1998. Indian irrigation projects failed to promote Indian agriculture and thus exemplify the larger federal

3713. Barsh, Russel Lawrence. “Plains Indian Agrarianism and Class Conflict.” Great Plains Quarterly 7 (Spring 1987): 83–90. Between 1890 and 1940 on reservations “an agrarian entrepreneurial middle class and a landless bureaucratic class emerged, and their competition of political influence has dominated reservation life 393

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failures to promote tribal economic development. These irrigation projects were often inefficient and badly administered for three reasons: political maneuverings meant that non-Indian interest groups sought benefits from them; there was a monitoring problem leading to waste; and many were ill-suited for their intended purposes and were therefore wasteful. 3717. Dale, Edward Everett. “The Cherokee Strip Live Stock Association.” Chronicles of Oklahoma 5 (March 1927): 58–96. Includes description of the legal status of the Cherokee Outlet, disputes surrounding the development of cattle ranching there, and leasing of the land to white ranchers. The U.S. acted unjustly toward Indians by removing ranchers from the outlet. Doing so denied the Cherokees further revenue and forced the sale of these lands at too low a value. 3718. Daugherty, Dani. “In Hogs We Trust—A Million Pigs in the Parlor: The Bureaucracy of the Bureau of Indian Affairs’ Conflicting Trust Roles.” Great Plains Natural Resources Journal 7 (Fall 2005): 267–78. The BIA minimally must comply with NEPA. The act does not provide strong protection for large-scale economic projects in Indian Country. The Sun Prairie hog confinement facility may not have been stopped had the BIA completed an EIS. The only way for tribes to protect themselves is to pass their own ordinances banning such operations. 3719. DiMatteo, Larry A. and Michael J. Meagher. “Broken Promises: The Failure of the 1920’s Native American Irrigation and Assimilation Policies.” University of Hawai’i Law Review 19 (Spring 1997): 1–36. Efforts to develop Indian irrigation projects had failed by 1930, despite moves to make irrigation a cornerstone of Indian assimilation. Efforts failed because they were item specific instead of personfocused. 3720. Fonaroff, L. Schuyler. “Conservation and Stock Reduction on the Navajo Tribal Range.” Geographical Review 53 (April 1963): 200–223. Soil erosion from the Navajo range became a national issue with fears of sediment accumulations increasing along the Colorado River. The Navajos believed that “rains come from God to make the grass grow” and that poor soil conditions were the result of past actions, while the soil scientists wanted to reduce the number of stock on the range. The Navajos rejected the IRA because section six gave the Secretary of the Interior the power to restrict animals on ranges. Even though reduction went forward, the Navajo ultimately restocked the ranges and preferred their sheep to wage work.

3721. Fuller, Lynn. “Desertification on the Navajo Reservation: A Legal and Historical Analysis.” Stanford Environmental Law Journal 8 (1989): 229–91. The degradation of the Navajo Reservation is more severe than of the surrounding lands. In the 1950s the U.S. passed range management to the tribe and the degradation increased because of the unpopular federal conservation controls. Cultural and demographic trends favor increased grazing but fewer Navajos are starting grazing operations. 3722. Getty, Harry T. The San Carlos Indian Cattle Industry. Tucson: University of Arizona Press, 1963. Studies the development of the industry as a case of directed culture change and predicts that the cattlemen will make more efficient use of reservation resources for the betterment of the tribe over the next five years. Shorter version printed in Human Organization, 20 (Winter 1951–1962): 181–86. 3723. Hall, Jan Erik. Apache Cattle: The Reservation as Marketplace, a Sale Yard Feasibility Study. Harvard Project on American Indian Economic Development, John F. Kennedy School of Government, Cambridge, MA: Harvard University, May 1988. Studies two tribal and five individual tribal ranch associations form the San Carlos Apache cattle raising industry. A tribal sale barn built on five acres makes sense if the payback is greater than the loan. Additionally, there would be more days of tribal employment, but to implement this plan will require tribal cooperation between ranchers and tribal leaders. 3724. Hurt, Douglas F. Indian Agriculture in America: Prehistory to the Present. Lawrence: University of Kansas Press, 1987. Deals with both pre-contact farming and the later effects of federal policy. Failed government policies stunted the spread of Indian agriculture, and thus assimilation policy based on the idea of transforming Indians into successful American farmers also failed. Land allotment and the Indian New Deal are included. 3725. Iverson, Peter. When Indians Became Cowboys: Native Peoples and Cattle Ranching in the American West. Norman: University of Oklahoma Press, 1994. Describes the rise of Indian ranching, the effects of federal policies, and the uncertain present and future status that both Indian and non-Indian ranchers face. American Indians viewed ranching as a way to adapt to changing times that helped Indian ways endure. Ranching took on important social and economic significance. 3726. Johnny, Ronald E. “Can Indian Tribes Afford to Let the Bureau of Indian Affairs Continue to Negotiate

Agriculture and Livestock

Permits and Leases on Their Resources?” American Indian Law Review 16, no. 1 (1991): 203–11. Based on his background as a former tribal chairman, Johnny discovered that the BIA lacked skilled personnel in establishing fair market value, employed improper methods to establish grazing fees, and lacked training in permit and fee negotiations. When the tribe negotiated, fees increased. 3727. Johnson, Ronald N. and Gary D. Libecap. “Agency Costs and the Assignment of Property Rights: The Case of Southwestern Indian Reservations.” Southern Economic Journal 47 (October 1980): 332–47. In examining nineteen southwestern reservations, the authors discovered that large herders have established informal control over reservation grazing lands. The BIA, with the tribal councils, equalized grazing privileges and that created conflict between herders, escalated costs of administration, increased overgrazing and reduced stock income. 3728. Lash, Robin. “Industrial Hemp: The Crop for the Seventh Generation.” American Indian Law Review 27, no. 1 (2002–2003): 313–56. Lakotas contend that they have the right to grow industrial hemp as a form of economic development. Lash agrees with Lakota claims to their sovereign right and believes this would be a step toward selfsufficiency. The federal government has refused this right because of industrial hemp’s association with marijuana. The DEA exceeded its authority in banning industrial hemp nationwide and it should amend the 1970 Comprehensive Drug Control and Abuse Act to legalize commercial cultivation. 3729. Libecap, Gary D. and Ronald N. Johnson. “Legislating Commons: The Navajo Tribal Council and the Navajo Range.” Economic Inquiry 18 (January 1980): 69–86. Since 1933, both BIA and Navajo Tribal Council range decisions have led to reservation overgrazing. The range is held in common, but both institutions support more and more small herds. That increases management costs to keep more cattle owners in range compliance. In this case, communal ownership has been a detriment to the range land, and private property regulation should be instituted. 3730. McLaughlin, Castle. “Nation, Tribe, and Class: The Dynamics of Agrarian Transformation on the Fort Berthold Reservation.” American Indian Culture and Research Journal 22, no. 3 (1998): 101–38. Social class is presented as a useful concept for understanding reservation politics. Land allotment and the evolution of cattle ranching are linked to the development of economic stratification and classconsciousness on the reservation.

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3731. McPherson, Robert S. “Navajo Livestock Reduction in Southwestern Utah, 1933–1946: History Repeats Itself.” American Indian Quarterly 22 (Winter/ Spring 1998): 1–18. Retells the story of livestock reduction from a Navajo perspective, relying on a series of oral interviews conducted by the author and other researchers, and emphasizing the deep anguish the policy caused for Navajo people. 3732. Norton, George W., K. William Easter, and Terry L. Roe. “American Indian Farm Planning: An Analytical Approach to Tribal Decision Making.” American Journal of Agricultural Economics 62 (November 1980): 689–99. Tribal governments have increased their agricultural interests in the 1970s. The Sissesston-Wapheton Sioux Tribe used Farmers Home Administration funds to purchase land for a tribal farm based on communal methods instead of individual tracts. 3733. Roessel, Ruth and Broderick Johnson. Navajo Livestock Reduction: A National Disgrace. Tsaile, AZ: Navajo Community College Press, 1974. Collection of oral histories recounting Navajo experiences with this tragic program. A common theme is that the Navajos did not associate soil erosion with excessive numbers of livestock, but instead believed that the reduction led to the drought. They did not accept the need for the reductions. 3734. Shepard, Ward. “Land Problems of an Expanding Indian Population.” In The Changing Indian, edited by Oliver La Farge, 72–83. Norman: University of Oklahoma Press, 1942. The Indian Office’s Principal Planning Specialist stresses the importance of fostering the productive use of Indian lands to promote economic development in the wake of the destructive allotment policy. Factors impeding agriculture and raising livestock husbandry are discussed. 3735. Svingen, Orlan. “Reservation Self-Sufficiency: Stock-Raising versus Farming on the Northern Cheyenne Indian Reservation.” Montana: Magazine of Western History 31 (October 1981): 14–23. Commissioner Valentine opposed cattle ranching on the Northern Cheyenne Reservation in favor of farming. At the same time, the tribal cattle herd grew forcing Native Americans to kill animals while the government was cutting rations. 3736. Torgerson, Randall E. “Cooperative Forms of Agribusiness for Use in Indian Country.” South Dakota Law Review 26 (Summer 1981): 564–81. Tribal agricultural cooperative development schemes should draw from tribal culture and their

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long agricultural traditions. The First Nations in Canada also have some potentially good models for others to borrow. 3737. Trosper, Ronald L. “American Indian Relative Ranching Efficiency.” American Economic Review 68 (September 1978): 503–16. Federal policy toward tribal ranching is based on the premise that tribal management is the primary constraint on successful ranching. Trosper refutes this claim and argues that “land tenure or other institutional problems underlie Indian difficulties. 3738. Valsich, James A. “Transitions in Pueblo Agriculture, 1938–1948.” New Mexico Historical Review 55 (January 1980): 25–46. Discusses the CCC’s and AAA’s impact on Pueblo farming practices. The New Deal legislation prompted an era of great change in Pueblo agriculture. 3739. Weinberg, Bill. “Land, Hemp and Sovereignty at Pine Ridge: The Oglala Lakota Fight Federal Obstruction.” Native Americas 18 (Summer 2001): 10–17. Alex White Plume from Pine Ridge planted industrial hemp on his land and federal agents destroyed the field as an illegal crop. To encourage hemp production, tribal members are organizing Land Use As-

sociations to consolidate heirship lands into workable tracts. 3740. Wessel, Thomas R. “Agriculture on the Reservations: The Case of the Blackfeet, 1885–1935.” Journal of the West 18 (October 1979): 17–24. The federal government pushed reservation farming to assimilate the Blackfeet, but after fifty years, the tribe lived in rural poverty. Ill-conceived irrigation construction and fractionalized lands limited agriculture. Grazing would have been the most efficient use of the Blackfeet Reservation. 3741. Young, Robert A. and Roger Mann. “Cheap Water in Indian Country: A Cost-Effective Rural Development Tool?” In Indian Water in the New West, edited by Thomas R. McGuire, William B. Lord, and Mary G. Wallace, 165–84. Tucson: University of Arizona Press, 1993. Farming continues to undergo change, and at the end of the twentieth century, large operations dominated the industry while smaller farms needed assistance. Redirecting outdated tribal economic programs with cost-effective programs, that have a cost share, will make greater economic sense, and water for tribal projects will not be wasted.

Chapter 40 Timber Resources

3746. Ellwanger, Kimberly T. “Money Damages for Breach of the Federal–Indian Trust Relationship after Mitchell II.” Washington Law Review 59 (July 1984): 675–91. The Supreme Court ruled in Mitchell II that the U.S. was liable for money damages due to improper management that damaged Quinault allottees’ timber. The claimants must demonstrate a substantive right as the foundation for U.S. trust responsibilities.

3742. Barsh, Russel Lawrence. “U.S. v. Mitchell Decision Narrows Trust Responsibility.” American Indian Journal of the Institute for the Development of Indian Law 6 (August 1980): 2–14. When the Supreme Court rejected the Quinault allottees’ claim for timber mismanagement against the U.S., the door did not close on trust cases. Instead the court interpreted very narrowly what the courts will accept as a proper trust claim. The allottees picked the wrong act, the General Allotment Act of 1887, to seek breach of trust damages. In short, trust cases are not broad, but restrictive.

3747. Gingrich, Jennifer. “Bugenig v. Hoopa Valley Tribe: The Power Source of a Tribe Seeking to Achieve World Renewal and the Protection of Its Natural and Cultural Resources.” Environmental Law 33 (Winter 2003): 215–45. The Hoopa tribe’s timber management plan restricts logging near the site of the White Deer Dance. A non-Indian landowner affected by the ban sued the tribe. The Ninth Circuit Court of Appeals ruled that the tribe possessed delegated authority to limit logging. The court should have affirmed the Hoopa’s inherent sovereignty.

3743. Bubser, Dave. “Menominee Sustainable Forestry.” Cultural Survival 16 (Fall 1992): 29. Reservation logging began in the twentieth century based on clear cuts and fire regime, but switched to selective cutting. In the 1950s, Menominee Tribal Enterprises began intensive forest practices instead of timber management that now provides a fifteenyear cutting rotation producing pulpwood and sawlogs. MTE was the first lumber operation in “North America to qualify for wood certification.”

3748. Harris, Richard R., Greg Blomstrom, and Gary Nakamura. “Tribal Self-Governance and Forest Management at the Hoopa Valley Indian Reservation, Humboldt County, California.” American Indian Culture and Research Journal 19, no. 1 (1995): 1–38. Asks if self-governance, through P.L. 100-472, has been a better alternative for tribes seeking to manage their forest resources than is BIA-controlled or joint BIA-tribal management. The authors researched forest management efforts on the Hoopa reservation over an eighty-year period, spanning the transition from BIA to tribal control. Overall, self-governance has been a good option for them. They have developed adequate technical expertise, but their successes are limited by the environmental legacies of past BIA stewardship, their own failure to move away from the BIA organizational model, and funding restrictions.

3744. Craig, Jeneva. Human Resource Management Reform at the White Mountain Apache Tribe. Harvard Project on American Indian Economic Development, John F. Kennedy School of Government, Cambridge, MA: Harvard University, April 1993. The tribe has assumed management of the tribal forest, an important step in exercising tribal sovereignty. Due to lower tribal salaries and benefits than for BIA employees, it is important for the tribe to improve the tribal resource management plan. 3745. Dillsaver, Joe D. “Natural Resources: Federal Control over Indian Timber.” American Indian Law Review 5, no. 2 (1977): 415–22. Surveys court decisions and federal legislation pertaining to reservation timber management. 397

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3749. Hill, James D. and Howard G. Arnett. “Understanding Indian Tribal Timber Sales.” Natural Resources & Environment 9 (Winter 1995): 38–41, 69–71. The BIA’s role in tribal forestry continues to diminish as the policy of self-determination gains more momentum. The 1990 National Indian Forest Resources Management Act states that tribes will make the primary decisions for their forests in the future. This increased role in tribal management is significant locally because for decades, tribal forests have provided stumpage to off-reservation contractors. Tribes will not harvest all of their trees at once. 3750. Hosmer, Brian C. “Creating Indian Entrepreneurs: Menominees, Neopit Mills, and Timber Exploitation, 1890–1915.” American Indian Culture and Research Journal 15, no. 1 (1991): 1–28. Menominees avoided land allotment and, instead, actively pursued a logging economy that helped lead to the economic success and self-sufficiency that land allotment was intended to promote. A significant proportion of the tribe supported timber exploitation as a form of economic development, thus defying the assumption that Indians resisted the development of their natural resources and participation in the market economy. 3751. Houle, Antoinette. “Federal Government Held Accountable for Damages on Theory of Breach of Trust.” Natural Resources Journal 24 (July 1984): 783–99. In United States v. Mitchell II, the Supreme Court decided in 1983 that the Quinaults had no right to recover damages for U.S. mismanagement of tribal allotted timberlands on the Quinault Reservation. The court created a test for trust claims, making them similar to common law trust. 3752. Hughes, Richard W. “Can the Trustee Be Sued for Its Breach? The Sad Saga of United States v. Mitchell.” 26 (Summer 1981): 447–93. This was an important breach of trust case where Helen Mitchell and other Quinault allottees sued the trustee for mismanaging their timber. The case went to court and hinged on an argument that did not address the central issue of mismanagement. Instead legal arguments concerning the appropriate role of the Tucker Act and the scope of the General Allotment Act permitted the court to sidestep the issue of timber management. 3753. Kinney, J. P. Indian Forest and Range: A History of the Administration and Conservation of the Redman’s Heritage. Washington, DC: Forestry Enterprises, 1950. Kinney was the leading forester for the Indian Office Division of Forestry from its creation in 1910 to 1933. This study examines the reservation forestry

program, which focused on logging. Sustain-yield logging is discussed, as well the creation and organization of the tribal forestry division within the Indian Office. Menominee and Klamath forests are discussed in detail. 3754. Kless, Trude, “Whom Can Indians Trust After Mitchell?” University of Colorado Law Review 53 (Fall 1981): 179–93. The Quinault Nation sought redress for U.S. timber mismanagement as trustee for tribal resources under the General Allotment Act. The Supreme Court ruled that the law provided limited trust responsibility restricted to alienation and taxation of tribal lands. The Supreme Court misread the act’s legislative history. 3755. Krepps, Matthew B. Can Tribes Manage Their Own Resources? A Study of American Indian Forestry and the 638 Program. Harvard Project on American Indian Economic Development, John F. Kennedy School of Government, Cambridge, MA: Harvard University, November 1991. P.L. 638 permits tribes to contract with the U.S. to fund former trustee reservation operations, including forest management. A tribe can undertake through a 638 contract a timber survey for inventory and management purposes, or prepare a tribal timber sale. This law shifts the accountability to the tribes without an increase in federal dollars. Tribal forestry practices improved under P.L. 638. 3756. Kruger, Linda and Graciela Etchart. “Forest-based Economic Development in Native American Lands: Two Case Studies.” In American Indian Policy: SelfGovernance and Economic Development, edited by Lyman H. Legters and Fremont J. Lyden, 191–216. Westport, CT: Greenwood Press, 1994. Tribal economic development must align with traditional beliefs including the focus on sustainability. Active tribal involvement is also vitally important. A case study of the Yakama Indian Nation serves as a positive example. ANCSA, on the other hand, has created private for-profit corporations that are not aligned with cultural values and have not achieved sustainable development. 3757. Lesko, Lawrence M. and Ren’ee G. Thakali. “Traditional Knowledge and Tribal Partnership on the Kaibab National Forest with an Emphasis on the Hopi Interagency Management.” In Trusteeship in Change: Toward Tribal Autonomy in Resource Management, edited by Richmond L. Clow and Imre Sutton, 281–301. Boulder: University of Colorado Press, 2001. Congressional mandates have directed federal agencies to cooperation with tribal governments in

Timber Resources

planning joint cooperative resource plans. Sometimes these plans include tribal interests off the reservation. This is the case for the Hopi who have cultural interests in the Kaibab National Forest and have created a successful cultural resource relationship with the U.S. Forest Service. 3758. Littlefield, Daniel F., Jr. and Lonnie E. Underhill. “Hildebrand’s Mill, Cherokee Nation.” Chronicles of Oklahoma 48 (Spring 1970): 83–94. Account of ultimately ineffective tribal efforts to regulate sales of timber to non-citizens and thus prevent depletion of Cherokee timber resources. 3759. McNeill, Daniel. “Trusts: Toward an Effective Indian Remedy for Breach of Trust.” American Indian Law Review 8, no. 2 (1980): 429–57. The U.S. as trustee controlled all aspects of tribal timber operations and was barred from suit for mismanagement until 1946. In Mitchell, Quinault allottees sued for timber mismanagement and sought damages, but the Supreme Court denied the allottees compensation as the court was limiting tribal suits for trust violations. A constructive trust should be created. 3760. McQuillan, Alan G. “American Indian Timber Management Policy: Its Evolution in the Context of U.S. Forest History.” In Trusteeship in Change: Toward Tribal Autonomy in Resource Management, edited by Richmond L. Clow and Imre Sutton, 73–102. Boulder: University of Colorado Press, 2001. Though tribal forests are private and often held in trust for their tribal owners by the U.S., there is not a distinct difference in logging and forestry operations between tribes and the U.S. 3761. Mondou, Darla J. “Our Land Is What Makes U.S. Who We Are: Timber Harvesting on Tribal Reservations after the NIFRMA.” American Indian Law Review 21, no. 2 (1997): 259–96. Discusses tribal harvests before and after the passage of the National Indian Forest Resource Management Act. 3762. Morisset, Mason. “Basic Law Governing Tribally Owned Timber.” In Seminar on Indian Natural Resource Law and Finance, edited by American Indian Lawyer Training Program, 143–89. Oakland, CA: American Indian Lawyer Training Program, 1980. Examines tribal timber laws. The 10 percent administrative charge is too great and tribes could put that money to better use. Also provides a model timber contract that would put tribes in control.

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3763. Nafziger, Rich. “A Violation of Trust? Federal Management of Indian Timber Lands.” Indian Historian 9 (Winter 1976): 14–23. There is an inherent conflict between tribal management of timber and the government trust responsibility. As a result, tribes are taking control of their timber programs under 638 contracts. 3764. Nagel, Patricia McKeown. “The Re-Emergence of the Trust Relationship after United States v. Mitchell.” Land and Water Law Review 18, no. 2 (1983): 491–512. The Supreme Court sent Mitchell v. United States back to the Court of Claims. This decision re-established the Court of Claims as having jurisdiction over breach of trust suits and defined the trust relationship as an absence of substantive rights. Nagel argues that the Court of Claims must use the private sector principles when deciding tribal trust violations. 3765. Ritzenthaler, Robert. “The Menominee Indian Sawmill.” Wisconsin Archeologist 32 (June 1951): 39–44. Beginning in 1885, Congress permitted the Menominee to cut trees to sell sawlogs to local mills. In 1908, Congress authorized the construction of a tribal sawmill. The mill burned in 1925 and was replaced with a concrete structure, employing as many as 550, 80 percent of whom are tribal members. Most Menominee are favorable toward the mill and it has provided them with some prosperity. 3766. “Sentiment Grows for Repeal of P. L. 587.” American Forests 63 (December 1957): 25, 43. The congressional legislation to repeal the Klamath termination legislation escalated as industry, tribal members, and interested parties did not like the quick timber sale approach that the law assumed. 3767. Sherry, John W. Land, Wind, and Hard Words: A Story of Navajo Activism. Albuquerque: University of New Mexico Press, 2002. Navajo natural resource use changed when Charles Burke issued “Regulations Relating to the Navajo Tribe of Indians.” This created the first Navajo government that was in charge of timber, oil, coal, and other natural resources. Timber was the first resource logged in 1888 and the Navajo timber industry grew under Navajo Forests Product Industries. Some Navajos were forced to act against their government for the unproductive ways they harvested and managed tribal timber. 3768. Smith, Gordon S. Are Indians Getting a Good Deal? A Study of the Indian Affairs Forest Management. Harvard Project on American Indian Economic

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Development, John F. Kennedy School of Government, Cambridge, MA: Harvard University, April 1989. As trustee, the BIA’s Division of Forestry manages Indian forests for production by selling and growing timber. Most tribal members receive benefits from their forests that are greater than the revenues received from timber sales and cuts. By examining firewood for personal use and other timber uses, excluding spiritual uses, tribes received in 1968, $395 million, while timber sales only produced $56.6 million in revenue for Native Americans. The BIA’s focus on timber cuts causes tribes to lose revenues. 3769. Stern, Theodore. “Klamath Livelihood, Tribe and Reservation.” Human Organization 20 (Winter 1961–1962): 172–80. The development of logging operations at Klamath in 1913 benefited the tribe economically. In 1950, the $800 per capita from logging, coupled with subsistence, allowed them to live well, but it did not prepare them for political and economic decisions forced by termination. 3770. “The Supreme Court, 1954 Term.” Harvard Law Review 69 (November 1955): 147–51. The Supreme Court ruled against the tribe in TeeHit-Ton Indians v. United States. The plaintiffs sought compensation for timber taken from the Tongass National Forest. The court declared that the tribe lived on the land with the sovereign’s blessing and were not entitled to a Fifth Amendment taking of timber, only “where Indian title has been ‘recognized’ by

treaty or act of Congress is taking constitutionally compensable.” Politics may have entered this case as fear “of claims based on original Indian title pending before the Indian Claims Commission, which with interest may reach billions of dollars, may have moved the Court to its present position.” 3771. Tail, Jim, Jr. Navajo Forest Products Industries: Establishing an Economic Development Corporation. Harvard Project on American Indian Economic Development, John F. Kennedy School of Government, Cambridge, MA: Harvard University, April 1989. Reservation economic development is often difficult due to internal and external influence and that means that good managers are often left out of the decision-making process. NFPI has operated for over thirty years because of its ability to work with the tribal council and craft a foundation for economic growth. 3772. Watson, Editha L. “Giving the Forest Back to the Indians.” American Forests 51 (December 1945): 590–91, 619. The 1850 Swamp Land Act give states control of all forty-acre tracts that were one half or more swamp. The 1854 Menominee Treaty gave Wisconsin those lands and this was upheld in United States v. Minnesota (1926). In 1935, Congress permitted the tribe to sue the U.S. and the court ruled that the tribe owned the swamp lands. They took the lands rather than the money to control their entire forest and manage it on a self-sustaining basis.

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3773. Abrams, Robert H. “The Big Horn Indian Water Rights Adjudication: A Battle for the Legal Imagination.” Oklahoma Law Review 43 (Spring 1990): 71–86. Tribes hope to gain water for a better future but their antagonists want to limit tribal access to “reserved water rights [that] are one of their sole remaining tangible compensations left to the tribes for their relinquishment of the West’s vast spaces to nonIndian development.”

is in this context that their Winters rights could extend to groundwater. 3777. American Indian Lawyer Training Program. Indian Water Policy in a Changing Environment: Perspectives on Indian Water Rights. Oakland, CA: American Indian Lawyer Training Program, 1982. Part I is an overview of tribal water rights. Part II is the publication of symposium panels on tribal water rights that include managing the resource and strategies for protecting tribal water rights. There is a tribal water bibliography as well.

3774. Abrams, Robert H. “Implied Reservation of Water Rights in the Aftermath of Cappaert v. United States.” Environmental Law Reporter: A Project of the Environmental Law Institute 5 (1977): 50043–55. In Cappaert, the Supreme Court extended Winters to include subterranean water and that the ground water had to remain in place as part of the U.S. implied reservation purpose. This decision promotes the idea that natural resources have legal protection like economic resources. 3775. Abrams, Robert H. “Reserved Water Rights, Indian Rights and the Narrowing Scope of Federal Jurisdiction: The Colorado River Decision.” Stanford Law Review 30 (July 1978): 1111–48. Opening the door to state courts as the initial court to hear tribal water issues has reduced federal authority as trustee in tribal water disputes. The Colorado River case has hindered the trustee by making state courts the preliminary forum.

3778. Amundson, Ann E. “Recent Judicial Decisions Involving Indian Water Rights.” In Indian Water, 1985: Collected Essays, edited by Christine L. Miklas and Steven J. Shupe, 3–23. Oakland, CA: American Indian Resources Institute, 1986. Studies decisions following Colorado River in 1976 and finds that the three “dominant opinions” occurred in 1983: Arizona v. San Carlos Apache Tribe of Arizona, Arizona v. California II, and Nevada v. United States. These cases “raised substantial procedural barriers for tribes but did not alter the traditional rules for determining the amount of water to which tribes are entitled under the Winters doctrine.” Subsections of this analysis focus on jurisdiction and procedure, quantification of reserved rights, tribal regulation, and allotments.

3776. Allison, Amy Choyce. “Extending Winters to Water Quality: Allowing Groundwater for Hatcheries.” Washington Law Review 77 (October 2002): 1193–1226. Despite Wyoming Supreme Court’s refusal to extend Winters to groundwater, the Arizona court did so. Since fish cannot survive in polluted waters, the tribal fisheries in the Northwest need fresh water. It

3779. Anderson, Robert T. “Quantification of Indian Reserved Water Rights.” Rocky Mountain Mineral Law Institute 49 (2003): 9-1–9-22. Describes the history of tribal water rights, past quantification standards, and instream flow. Despite the 1973 National Water Commission’s plea to adjudicate western river basins, few tribes have quantified their water rights.

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3780. Araas, John F. “Indian Law–Water Law–Transferability of Reserved Rights from the Indian Allottee to the Non-Indian Purchaser: Are the Purposes of the Reservation and the Interests of the Tribe Really Served?” Land and Water Law Review 17, no. 1 (1982): 155–68. In Colville Confederated Tribes v. Walton, the Ninth Circuit Court of Appeals ruled that Walton, who had purchased the allotment in 1948 from a nonmember, was entitled to get the allottee’s reserved water. The tribe objected and asked the Supreme Court to hear the case. 3781. Baade, Hans W. “The Historical Background of Texas Water Law—A Tribute to Jack Pope.” St. Mary’s Law Journal 18, no. 1 (1986): 1–98. Includes a section on Pueblo water rights in the historic period, describing how Spain and Mexico viewed these tribal rights to water. 3782. Bacal, Jessica. “The Shadow of Lone Wolf: Native Americans Confront Risks of Quantification of Their Reserved Water Rights.” University of Bridgeport Law Review 12, no. 1 (1991): 1–42. Lone Wolf has been called the Dred Scott of Indian law by bringing congressional legislative plenary power into tribal affairs and forcing tribes to become uneasy with any discussions of their water rights. Negotiation is a way to escape Lone Wolf. 3783. Back, William Douglas and Jeffery S. Taylor. “Navajo Water Rights: Pulling the Plug on the Colorado River?” Natural Resources Journal 20 (January 1980): 71–90. Examines relevant legislation and the Navajo Indian Irrigation Project. Indian reserved water rights are not new, they have just been ignored since 1908. The size of the Navajo Nation and the scope of its reserved water rights will have a tremendous influence on the Colorado River Basin’s water development. 3784. Bennett, Carla J. “Quantification of Indian Water Rights: Foresight or Folly.” UCLA Journal of Environmental Law and Policy 8, no. 2 (1989): 267–85. Water conflicts between states and tribes will likely continue and the end result is the states will quantify tribal water rights. This process repeats the earlier pattern of making lands and water available to whites. 3785. Berry, Kate A. “Of Blood and Water.” Journal of the Southwest 39 (Spring 1997): 79–111. Looks at the Pyramid Lake Indian Tribe, the Truckee–Carson Irrigation District, and the Fallon Indian Tribe and their relationships with each other, shaped by their common need for Truckee River water. Berry considers various acts and water projects af-

fecting their water rights, and forcing them into conflict. 3786. Berry, Kate A. “Water Use and Cultural Conflict in 19th Century Northwestern New Spain and Mexico.” Natural Resources Journal 40 (Fall 2000): 759–81. Historical–geographical study of U.S.–Mexican water conflicts, including tribal water uses. 3787. Bloom, Paul L. “Indian “Paramount” Rights to Water Use.” Rocky Mountain Mineral Law Institute 16 (1971): 669–93. A special attorney general from New Mexico takes the tribes’ Winters argument from a state’s perspective, argues that the tribal claims are not acceptable, and stresses that general adjudication suits will become more common in the future. 3788. Blumm, Michael C. “Unconventional Waters: The Quiet Revolution in Federal and Tribal Minimum Streamflows.” Ecology Law Quarterly 19, no. 3 (1992): 445–80. A revolution is taking place in western water where “federal and tribal governments quietly [are] securing protection of streamflows vital to their proprietary and regulatory interests.” To insure streamflows, tribes are passing water codes, which IRA tribes must have approved by the Secretary of Interior. 3789. Boomgaarden, Lynnette J. “Water Law–Quantification of Federal Reserved Indian Water Rights–‘Practicably Irrigable Acreage’ Under Fire: The Search for a Better Legal Standard.” Land and Water Law Review 25, no. 1 (1990): 415–34. The 1868 Wind River Treaty never mentioned water. In 1977, Wyoming initiated general adjudication of the Wind River which led to the first Indian water quantification completed since Arizona. PIA came from Arizona, but the courts lack the expertise to establish economic boundaries. Despite the flaws inherent in the PIA standard, it is a useful quantification tool. 3790. Breckenridge, Cabell. “Tribal Water Codes.” In Tribal Water Rights: Essays in Contemporary Law, Policy, and Economics, edited by John E. Thorson, Sarah Britton, and Bonnie G. Colby, 199–212. Tucson: University of Arizona Press, 2006. Profiles five tribal water codes, all of which share technical similarities but which can be used to pursue varying objectives through different implementation approaches. Included are the Navajo Nation, Sioux Tribes of Fort Peck, Confederated Tribes of the Colville Reservation, Yakima Nation, and Salt River Pima–Maricopa Community. 3791. Brienza, Susan. “Wet Water v. Paper Rights: Indian and Non-Indian Negotiated Settlements and their Ef-

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fects.” Stanford Environmental Law Journal 11 (1992): 151–99. Negotiation is the best alternative method to settle tribal and non-tribal water disputes in the West. The costs are less than litigation, and relations among tribes and states may improve. Despite the advantages, this is long step away from the Winters decision that made tribal water rights seem so secure nearly a century ago. 3792. Britton, Sarah. “Groundwater, Tribal Rights, and Settlements.” In Tribal Water Rights: Essays in Contemporary Law, Policy, and Economics, edited by John E. Thorson, Sarah Britton, and Bonnie G. Colby, 69–94. Tucson: University of Arizona Press, 2006. Considers state policies relative to groundwater and the importance of the McCarran Amendment; how courts apply the doctrine of federal reserved rights to this water; the negotiation process; and important litigation. Negotiations increasingly recognize the interrelationship between ground- and surface water. 3793. Britton, Sarah. “The Special Case of Pueblos.” In Tribal Water Rights: Essays in Contemporary Law, Policy, and Economics, edited by John E. Thorson, Sarah Britton, and Bonnie G. Colby, 61–68. Tucson: University of Arizona Press, 2006. Pueblo water rights rest on a distinct body of law that does not necessarily fall under Winters. Rights under Spanish and Mexican rule are described, as are Aamodt I and II. 3794. Brookshire, David S., James L. Merrill, and Gary L. Watts. “Economics and the Determination of Indian Reserved Water Rights.” Natural Resources Journal 23 (October 1983): 749–65. There are problems inherent in using practical irrigable acres as a measure to quantify tribal reserve water rights. The major problem is that PIA contains “no criteria for determining whether particular land is indeed practicably irrigable.” The authors provide criteria for using PIA. 3795. Brown, F. Lee and Helen M. Ingram. “The Community Value of Water: Implications for the Rural Poor in the Southwest.” Journal of the Southwest 29 (Summer 1987): 179–202. The rural poor perceive a strong bond between water and their cultural values, thus explaining Native Americans’ vigorous defense of their water rights. Organizing to fight for water rights is an ideal foundation for other efforts to improve their condition. 3796. Brown, F. Lee and Helen M. Ingram. Water and Poverty in the Southwest. Tucson: University of Arizona Press, 1987.

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Advances the arguments made in their Journal of the Southwest article by focusing extensively on Hispanic communities and the Tohono O’odham Nation. 3797. Burness, H. S., R. G. Cummings, W. D. Gorman, and R. R. Lansford. “Practicably Irrigable Acreage and Economic Feasibility: The Role of Time, Ethics, and Discounting.” Natural Resources Journal 23 (April 1983): 289–303. The practical irrigable acre standard was developed in Arizona v. California. The authors demonstrate the value of cost–benefit analysis. 3798. Burton, Lloyd. “The American Indian Water Rights Dilemma: Historical Perspective and Dispute-Settling Policy Recommendations.” UCLA Journal of Environmental Law and Policy 7, no. 1 (1987): 1–66. Tribes have a strong legal, but weak political and economic, position, winning the lower court battles and losing at the congressional and Supreme Court level. Because the present system of western states’ prior appropriation and tribal reserved water rights are not compatible, there is a need for improved negotiations. 3799. Burton, Lloyd. “American Indian Water Rights in the Future of the Southwest.” In Water and the Future of the Southwest, edited by Zachary A. Smith, 153–76. Albuquerque: University of New Mexico Press, 1989. How tribal water claims and resulting conflicts are handled “will reflect quite directly on the moral character of the American people and the government that represents them.” Burton offers an overview of the history of Indian water rights and dispute-resolution efforts and describes possible future resolutions of water conflicts. He proposes ways to improve the negotiation process, including establishing an intergovernmental Indian water rights commission. 3800. Burton, Lloyd. American Indian Water Rights and the Limits of the Law. Lawrence: University of Kansas Press, 1991. Focuses on problems facing tribal, state, and federal negotiators in reaching water settlements between the different sovereigns. Groundwater, which is often ignored, remains an important part of the water adjudication process. 3801. Campbell, Susan Millington. “A Proposal for the Quantification of Reserved Indian Water Rights.” Columbia Law Review 74 (November 1974): 1299–321. Tribal reserved water is only a claim not a use of a specified volume of water. This creates uncertainty if the amount has not been determined. The author opposes any open ended or flexible tribal reserved

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water right. Instead, tribal reserved water should be based on the “present use and need” standard with a proviso for future use. 3802. Carter, John B. “Indian Aboriginal and Reserved Water Rights, an Opportunity Lost.” Montana Law Review 64 (Summer 2003): 377–83. When the state of Montana ratified a new constitution in 1972, the past constitution’s language regarding federal and tribal water rights was overlooked. The 1972 document focused on state water issues, especially prior appropriation. The omission of Indian reserved water rights has been costly for the state on many fronts. It should be amended to incorporate tribal and federal reserved water rights. 3803. Chamberlain, Sue Abbey. “The Fort McDowell Indian Reservation: Water Rights and Indian Removal, 1910–1930.” Journal of the West 14 (October 1975): 27–34. Discusses federal attempts to remove the Fort McDowell Indians to the Salt River Reservation, and thus offers an example of a link between water rights and land loss. The tribe successfully battled the effort over two decades, at great cost in money, time, and effort. 3804. Chambers, Reid Peyton. “Indian Water Rights after the Wyoming Decision.” In 1989 Harvard Indian Symposium. President and Fellows of Harvard College, Cambridge, MA, 1990, 153–63. This case was going to be important to tribal waters as the Wyoming Supreme Court had to determine if practical irrigable acres was the proper measure to quantify tribal reserved waters, which had been the practice since Arizona. This case went to the Supreme Court and a divided court sided with continuation of the PIA standard. 3805. Chambers, Reid Peyton and John E. Echohawk. “Implementing the Doctrine of Indian Reserved Water Rights: Producing Indian Water and Economic Development without Injuring Non-Indian Water Users?” Gonzaga Law Review 27, no. 3 (1991/1992): 447–70. Tribal reserved water rights are more important than ever, especially as tribes change their reserved water right uses from farming to new uses. New uses of tribal water will allow greater reservation economic development “without impairing non-Indian economies.” 3806. Chandler, Mark E. “A Link between Water Quality and Water Rights? Native American Control over Water Quality.” Tulsa Law Journal 30 (Fall 1994): 105–56. This is the proper time for tribes in Oklahoma to use the Clean Water Act and seek and gain a greater

voice in determining water quality. Groundwater and surface water are part of an integrated system and it will only be a matter of time before greater pollution problems emerge if ground and surface water are treated as separate entities. 3807. Checchio, Elizabeth and Bonnie G. Colby. “The Context for Indian Water Settlements.” In Water Law: Trends, Policies, and Practice, edited by Kathleen Marion Carr and James D. Crammond, 179–95. Chicago, IL: ABA Section of Natural Resources, Energy, and Environmental Law, 1995. Provides a contextual survey of issues involved in, and questions raised by, the settlement process and includes an extensive table listing specific settlements and related references. Key issues are how to negotiate settlements that are both equitable and economically efficient; resolving the main disputes dividing the involved parties; resolving jurisdictional disputes; and funding these settlements. 3808. Childs, Ryan H. “Water Law: Drawing the Line on Indian Reserved Water Rights: No ‘Super-Walton’ Rights in Wyoming’s Big Horn River System.” Land and Water Law Review 31, no. 2 (1996): 425–41. The Wyoming Supreme Court issued Big Horn IV in 1995, ruling that only individual Indians who can trace their land titles to an allotment are entitled to reserved water rights. Fee patent lands on ceded lands should not have a reserved water right since the tribal reserved water is for the benefit of tribal members. 3809. Clark, Emmet Robert, ed. Waters and Water Rights: A Treatise on the Law of Waters and Allied Problems, volume 2. Indianapolis, IN: The Allen Smith Company Publishers, 1967. Includes discussion of the status of tribal water rights in 1967. Sections include sources of tribal water rights, amount reserved for tribal use, priority dates, tribal water claims, and alienation of tribal water rights. In 1978, a supplement was published that added a bibliography on tribal water litigation. 3810. Clinton, Michael J. “Dealing with the Federal Sovereign.” In Indian Water in the New West, edited by Thomas R. McGuire, William B. Lord, and Mary G. Wallace, 215–20. Tucson: University of Arizona Press, 1993. Several examples of tribal–local cooperation are discussed. The federal government is far behind the rest of the country in accepting negotiated water settlements with tribal communities. 3811. Clinton, Michael J. “Settlement of Indian Reserved Water Rights Claims.” Natural Resources Journal 33 (Summer 1993): 665–70.

Water Law

Hopes for a future of water settlements to end the animosity between communities. 3812. Clyde, Edward W. “Special Considerations Involving Indian Rights.” Natural Resources Lawyer 8 (February 1975): 237–52. Examines the different legal theories behind Winters. Federal authority should protect tribal water rights even though they are different than other water rights. Storage units should be built to make water available to users at a reasonable cost. 3813. Colby, Bonnie G., John E. Thorson, and Sarah Britton. Negotiating Tribal Water Rights: Fulfilling Promises in the Arid West. Tucson: University of Arizona Press, 2005. Rights to western waters remain in dispute because groups, including tribal nations, have not quantified their water rights. This study attempts to describe the results of not moving forward in this process. 3814. Collins, Richard B. “The Future Course of the Winters Doctrine.” University of Colorado Law Review 56 (Spring 1985): 481–94. Examines issues such as groundwater and whether it is a Winters right, and the changing use of a Winters rights for agriculture. Winters rights have not improved tribal economic well-being. 3815. Collins, Richard B. “Indian Allotment Water Rights.” Land and Water Law Review 20, no. 2 (1985): 421–57. Examines the history of reservation land allotment and the effects that allotment had on water rights and the water rights disposition when the land leaves trust status. Both ground and surface water are discussed. 3816. Cook, Dennis C. “The Juxtaposition of Two Doctrines—Inherent Tribal Sovereignty and Reserved Water Rights.” In Water Law: Trends, Policies, and Practice, edited by Kathleen Marion Carr and James D. Crammond, 196–203. Chicago, IL: ABA Section of Natural Resources, Energy, and Environmental Law, 1995. Analyzes the Bighorn III decision regarding the limits of use of the Wind River Tribes’ reserved water right and the state engineer’s authority on the reservation. The court “denied the tribes’ sovereignty-based claims for separate administrative authority on the reservation, but did so without addressing the concept of tribal sovereignty.” The decision was correct. Future courts should be cautious in such cases and “not ignore the difference between claims that the United States reserved water rights for specific uses on an Indian reservation and attempts to use the reserved rights doctrine to extend tribal sovereignty.”

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3817. Corker, Charles E. “Water Rights and Federalism— The Western Water Rights Settlement Bill of 1957.” California Law Review 45 (December 1957): 604–37. Water and federalism are two debated topics in western states and in 1957 Congress passed legislation to define federal–state relations. Tribal waters rights are discussed in two sections. 3818. Cosens, Barbara A. “The Arizona Homeland Standard Measure of Indian Water Rights.” In Tribal Water Rights: Essays in Contemporary Law, Policy, and Economics, edited by John E. Thorson, Sarah Britton, and Bonnie G. Colby, 49–60. Tucson: University of Arizona Press, 2006. Examines a 2001 Arizona Supreme Court decision that correctly recognized the homeland standard as an alternative method to PIA quantification. 3819. Cosens, Barbara A. “Farmers, Fish, Tribal Power, and Poker: Reallocating Water in the Truckee River Basin, Nevada and California.” West-Northwest Journal of Environmental Law and Policy 10 (Fall 2003): 89–137. Discusses the process through which Truckee River users have begun the long process of re-allocating the river’s water, and further describes the problems associated with water re-allocation. 3820. Cosens, Barbara A. “Filling the Gaps in Western and Federal Water Law.” In Tribal Water Rights: Essays in Contemporary Law, Policy, and Economics, edited by John E. Thorson, Sarah Britton, and Bonnie G. Colby, 155–69. Tucson: University of Arizona Press, 2006. Studies settlements between the State of Montana and tribes residing on five Indian reservations. The Montana conflict-resolution process exemplifies the importance of including in the process a means for seeking the necessary legislation, of finding ways to ensure the early involvement of high-level decision makers, and incorporating people in the process from a broad range of disciplines. 3821. Cosens, Barbara A. “A Framework for Evaluation of Tribal Water Settlements.” Natural Resources & Environment 18 (Fall 2003): 41–45. Explains the history of the Rocky Boy’s and Fort Belknap Reservations’ negotiated water compacts with the state of Montana. These provided for basinwide water settlement opportunities that were locally driven. 3822. Cosens, Barbara A. “The Measure of Indian Water Rights: The Arizona Homeland Standard, Gila River Adjudication.” Natural Resources Journal 42 (Fall 2002): 835–72.

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In 2001, the Arizona State Supreme Court accepted a homeland standard instead of potentially irrigable acres to determine a tribal water right for the Gila River Indian Community. This is a good standard because it provides the opportunity to quantify water for sustenance and economic development. There are some problems though, particularly in quantifying a homeland standard versus an agricultural standard.

Prevent Tribes From Water Brokering.” University of Denver Water Law Review 1 (Fall 1997): 109–26. Tribes have a legal right to water in most western water basins. Tribes want to become self-supporting and water marketing is one mechanism to do so. Non-Indians oppose this concept, claiming that Winters did not provide for marketing or any water transfers by state law. Tribes counter by asking the federal government to uphold their trust responsibility.

3823. Cosens, Barbara A. “A New Approach in Water Management or Business as Usual? The Milk River, Montana.” Journal of Environmental Law and Litigation 18 (Spring 2003): 1–50. The author was counsel for the Montana Reserved Water Rights Compact Commission during the Fort Belknap negotiations. The settlement with the Fort Belknap Reservation gives the tribe the Milk River water-flow while, at the same time, forcing the Milk River Reclamation Project to rely on St. Mary’s water from the west. This settlement is a temporary solution and a long-term one must be reached.

3828. Davidson, John H. “Indian Water Rights, the Missouri River, and the Administrative Process: What Are the Questions?” American Indian Law Review 24, no. 1 (1999–2000): 1–20. Winters rights based on tribal interests in arid regions are not easily applied to Missouri River tribes in a more water-abundant region. They have an economic interest in the flow of the river rather than in diversions of specific quantities of water. Tribes can in theory claim “control of the flow of the river in proportion to their ownership interest.” Doing so, however, would challenge the Corps’ Master Manual process.

3824. Cosens, Barbara A. “The 1997 Water Rights Settlement between the State of Montana and the Chippewa–Cree Tribe of the Rocky Boy’s Reservation: The Role of Community and the Trustee.” UCLA Journal of Environmental Law and Policy 16, no. 2 (1997/98): 255–95. Discussion of the negotiation process between the leaders of the Rocky Boy’s Reservation in Montana and the Montana Reserved Water Rights Compact Commission that resulted in the reservation accepting 10,000 acre feet of surface and ground water for reservation purposes. 3825. Costo, Rupert. “Indian Water Rights: A Survival Issue.” Indian Historian 5 (Fall 1972): 4–6. The American Indian Historical Society pushed for a tribal water inventory. Knowing the extent of tribal water sources was a beginning point in the development of a 1972 Jicarilla Apache Water survey. 3826. Coursen, David F. “Reserved Rights: Water for Fish Protection and the 1983 Indian Water Rights Decisions.” Oregon Law Review 63, no. 4 (1984): 699–720. The Supreme Court decided Arizona v. California, Nevada v. United States, and Arizona v. San Carlos Apache Tribe of Arizona during 1982–1983, which restate the court’s protection of tribal rights that will insure the continuation of a fishery. 3827. Crass, Karen. “Eroding the Winters Right: NonIndian Water Users’ Attempt to Limit the Scope of the Indian Superior Entitlement to Western Water to

3829. DeCoteau, Jerilyn. “Effects of Non-Indian Development on Indian Water Rights.” In Tribal Water Rights: Essays in Contemporary Law, Policy, and Economics, edited by John E. Thorson, Sarah Britton, and Bonnie G. Colby, 115–28. Tucson: University of Arizona Press, 2006. Examines the effects of the development of nonIndian water on tribal rights, including interstate water compacts; the Endangered Species Act; PIA; the economic standard for quantifying reserved Indian water rights; and the sensitivity doctrine used by the courts. The development of non-Indian water has inhibited development of tribal water rights. 3830. Dellwo, Robert D. “Indian Water Rights—The Winters Doctrine Updated.” Gonzaga Law Review, 6 (Spring 1971): 215–40. Discusses the importance of Winans, Winters, and Conrad to tribal water rights. Tribes must be made aware of their water rights under these cases. United States v. Ahtanum Irr. Dist. brings the past Winters standards nearly intact to the present. 3831. Dellwo, Robert D. “Recent Developments in the Northwest Regarding Indian Water Rights.” Natural Resources Journal 20 (January 1980): 101–20. A perspective on northwest water cases in the 1970s from an attorney who represented several tribes in water suits. He was optimistic in the era of Oliphant that tribes would gain in their fight for water for purposes such as fishing.

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3832. De Young, Tim and William C. Scott. “Environmental Protection in Indian Country.” Natural Resources & Environment 15 (Summer 2000): 20–23, 63–64. The Supreme Court in Montana ruled that the “exercise of tribal power beyond what is necessary to protect tribal self-government or to control internal relations is consistent with the dependent status of the tribes.” Based on this case, the authors discuss recent tribal water litigation under the Clean Water Act and Safe Drinking Water Act where tribal jurisdiction was upheld. 3833. Dobyns, Henry F. “Apache Rights to Gila River Irrigation Water.” Kiva 63 (Summer 1998): 349–58. In a state where the doctrine of prior appropriation is recognized “San Carlos Apache Reservation priority is 1846, and Gila River Indian Reservation (Pima and Maricopa) is time immemorial.” 3834. Drucker, Paul M. “Wisconsin v. EPA: Tribal Empowerment and State Powerlessness Under §ß 518(e) of the Clean Water Act.” University of Denver Water Law Review 5 (Spring 2002): 323–94. The Seventh Circuit Court of Appeals inaugurated a new direction in the Clean Water Act’s pollution regulation. The court ruled that the Sokaogan Chippewa had status or were to be treated as states or co-equal regulatory sovereign bodies like states under the Clean Water Act. There were many complex twists and turns in this case, but the end decision was simple and clear, tribes are sovereigns under the act. 3835. Dufford, Philip W. “Water for Non-Indians on the Reservation: Checkerboard Ownership and Checkerboard Jurisdiction.” Gonzaga Law Review 15, no. 1 (1979): 95–131. Allotting reservations created multiple landownership patterns as allotted individual lands lay next to tribal and non-Indian owned fee patent lands. Jurisdiction issues accompany this landownership pattern where “[f]ederal law is the source of some rights, state law of others.” Until tribal reserved water rights are settled, a temporary solution must be implemented to protect non-Indian water users on reservations. 3836. DuMars, Charles and Helen Ingram. “Congressional Quantification of Indian Reserved Water Rights: A Definitive Solution or a Mirage?” Natural Resources Journal 20 (January 1980): 17–43. Western water planning is very difficult because tribal water rights have never been quantified. The Navajo Indian Irrigation Project illustrates how the public good and trust obligations to tribal members are not always in concert or workable.

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3837. DuMars, Charles T., Marilyn O’Leary, and Albert E. Utton. Pueblo Indian Water Rights: Struggle for a Precious Resource. Tucson: University of Arizona Press, 1984. Examining only the Rio Grande Pueblos, the story describes Hispanic, American, and Pueblo water rights. The discussed basin is unique because international law, state compacts, undefined Pueblo rights, and federal law are intermixed, but New Mexico interprets most of the water under state law. The depth of Pueblo water rights is great, creating complex legal questions concerning groundwater and Winters rights. Also address both the past and potential arguments in the Aamodt litigation. 3838. “A Dwindling Water Supply and the Indian Struggle to Retain Aboriginal and Winters Doctrine Water Rights.” American Indian Journal of the Institute for the Development of Indian Law 4 (December 1978): 35–44. The Carter administration proposed extensive western water adjudication to settle tribal water rights. This would not be needed if the long history of favorable court decisions would be upheld and the tribes’ water rights properly administered. 3839. Ebright, Malcolm. “Sharing the Shortages: Water Litigation and Regulation in Hispanic New Mexico, 1600–1850.” New Mexico Historical Review 76 (January 2001): 3–45. Considers disputes amongst Hispanic settlers and between the Spanish and Pueblo Indians, arguing that courts decided most cases based on the basis of need/equity rather than prior use. Despite strong rhetoric in water rights battles, Spanish colonial and Mexican litigation was characterized by flexibility and a doctrine of water sharing. 3840. Erickson, Robert. “Protecting Tribal Waters: The Clean Water Act Takes over where Tribal Sovereignty Leaves Off.” Tulane Environmental Law Journal 15 (Summer 2002): 425–42. The 1972 Federal Water Pollution Control Act is the foundation for federal water legislation. The Clean Water Act is the principle authority that tribes can invoke to enforce reservation water quality standards. 3841. Feldman, Stephen M. “The Supreme Court’s New Sovereign Immunity Doctrine and the McCarren Amendment: Toward Ending State Adjudication of Indian Water Rights.” Harvard Environmental Law Review 18, no. 2 (1994): 433–88. It is commonly believed that the McCarren Amendment and subsequent judicial interpretations

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imply that federal and tribal sovereign immunity were waived to permit tribal water rights to be adjudicated in state courts. In United States v. Nordic Village, the court applied “a principle of statutory construction that had previously been confined to waivers of state sovereign immunity.” This test is a more rigid standard than permitting tribes to assert their claims in a federal court. 3842. Fetzer, Clark B. “The Ute Indian Water Compact.” Journal of Energy Law and Policy 2, no. 2 (1982): 181–209. Discussions began in 1950 and culminated with tribal, state, and federal parties signing the compact. In early 1980, the Utah legislature approved a water compact with the Uintah and Ouray Reservation based on tribal reserved water rights. The state then pursued its Colorado River Allocation. 3843. Fick, Matthew L. “Water Rights on Indian Reservations —Transferability of Indian Water Rights—State Administration of Non-Indian Water Rights within the Reservation.” Washington Law Review 58 (December 1982): 89–109. In Colville Confederated Tribes v. Walton, the Ninth Circuit Court of Appeals ruled on several issues never brought before an appellate court. First the white landowner could not obtain the water and the state could not regulate non-Indian water use on the reservation. The court erred on both decisions. 3844. Fisher, Todd A. “The Winters of Our Discontent: Federal Reserved Water Rights in the Western States.” Cornell Law Review 69 (June 1984): 1077–93. The Winters doctrine can disrupt the western states’ prior appropriation practices that depend on first in time, first in use. When courts apply the reserved water doctrine they create uncertainty for non-tribal water users. Making federal reserved water rights subject to prior appropriation can eliminate this unknown. A problem with this approach is that federal and tribal water rights are very different. 3845. Florio, Roger. “Water Rights: Enforcing the Federal–Indian Trust After Nevada v. United States.” American Indian Law Review 13, no. 1 (1985): 79–98. The Supreme Court denied the Pyramid Lake Paiutes their request to increase their 1944 decreed water allocation. This decision protected third parties but also said, “the United States cannot be held to the fiduciary standards of Seminole Nation where it represents conflicting interests.” This ruling may prevent tribes from collecting for injury when Indian and non-Indian interests clash over water.

3846. Folk-Williams, John A. “Parties and Permanence: Alternative Dispute Resolution Principles.” In Indian Water in the New West, edited by Thomas R. McGuire, William B. Lord, and Mary G. Wallace, 147–62. Tucson: University of Arizona Press, 1993. Good negotiations “assume a degree of interdependence among the parties,” and consensus is the decision-making golden rule. Despite problems, negotiation provides flexibility to meet all parties’ needs. 3847. Folk-Williams, John A. “State and Indian Governments: Are New Relationships Regarding Water Possible?” In Indian Water 1985: Collected Essays, edited by Christine L. Miklas and Steven J. Shupe, 67–74. Oakland, CA: American Indian Resources Institute, 1986. Highlights the general pressures states are under regarding water and general western trends with the aim of helping tribes gain more control over water negotiations by better understanding what their counterparts want. Tribes must also establish clear goals before employing litigation, legislation, or negotiations. 3848. Folk-Williams, John A. “The Use of Negotiated Agreements to Resolve Water Disputes Involving Indian Rights.” Natural Resources Journal 28 (Winter 1988): 63–103. Negotiation is one potentially positive method to settle tribal water disputes with states as different entities in the West attempt to allocate resources. 3849. Folk-Williams, John A. What Indian Water Means to the West, Vol. 1 of Water in the West. Sante Fe, NM: Western Network, 1982. The conflict began a century ago over tribal entitlement to the water, but has shifted to tribal use and regulation of water resources. Despite the Supreme Court’s recognition of tribal water rights, many western states ignored tribal rights by accepting state citizens’ rights to appropriate waters. 3850. Foreman, Richard L. Indian Water Rights: A Public Policy and Administrative Mess. Danville, IL: Interstate Printers, 1981. Overview of the subject with chapters focusing on the development of Western water law, the development of related federal Indian policy, and Winters. Each chapter includes analysis of legislation, litigation, and specific water projects, including the Central Arizona Project. Tribal rights are based on the federal–tribal trust relationship rather than implied rights. The federal government has failed to uphold this trust and the best solution is for states to adjudicate Indian water rights.

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3851. Fort, Denise D. “State and Tribal Water Quality Standards under the Clean Water Act: A Case Study.” Natural Resources Journal 35 (Fall 1995): 771–802. When Congress mandated that tribes would be treated like states in administering the Clean Water Act, potential conflict was inevitable between states and tribes establishing differing standards. The conflict between Albuquerque and the Isleta Pueblo serves as an example. The EPA has moved into the gap Congress left open in the Clean Water Act that failed to make provisions for inter-jurisdictional disputes. 3852. Fredericks, Thomas. “Water Rights: ‘Winter Rights and Wet Water.’” In Seminar on Indian Natural Resource Law and Finance. American Indian Lawyer Training Program, 237–46 Oakland, CA: American Indian Lawyer Training Program, 1980. Winters rights are still being contested in Indian Country. Once these tribal reserved water rights are completed, questions still linger if they can be used for mineral development on the reservation. 3853. Galloway, William C. “Tribal Water Quality Standards under the Clean Water Act: Protecting Traditional Cultural Uses.” Washington Law Review 70 (January 1995): 177–202. Water quality control is an important component of tribal sovereignty and the Clean Water Act of 1987 provided that tribes will be treated as states for the purpose of water quality subject to EPA approval. Water regulatory power is a new power that has great potential to enhance tribal sovereignty. 3854. Gaufin, Sam O. “Colorado River Water Conservation District v. United States: An Increased Role for State Courts in the Adjudication of Federal Reserved Water Rights.” Utah Law Review, no. 2 (1977): 315–29. The court interpreted the McCarran Amendment as placing tribal water adjudications in state courts despite state hostility toward tribal reserved water rights. 3855. Getches, David H. “Indian Water Rights Conflicts in Perpsective.” In Indian Water in the New West, edited by Thomas R. McGuire, William B. Lord, and Mary G. Wallace, 7–26. Tucson: University of Arizona Press, 1993. The Winters decision’s strong language has, at best, led to modest tribal water victories. The Wind River decision proved what the Winters decision could do if it were enforced. The new era of negotiation hinges on the U.S.’s willingness to participate in the process. 3856. Getches, David H. “Management and Marketing of Indian Water: From Conflict to Pragmatism.” Uni-

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versity of Colorado Law Review 58 (Winter 1988): 515–49. Supports the concept of tribal water marketing if reallocating the water will put it to a beneficial and efficient use, but only Congress, as trustee, can approve Indian transfers. Also supports state–tribal cooperation in water negotiations. 3857. Getches, David H. “Water Rights on Indian Allotments.” South Dakota Law Review 26 (Summer 1981): 405–33. Individual rights to water are an extensive, but often ignored, area of water law. Discusses, allotment water rights and how water should be allocated when a tribal member possesses the land or if it passes to non-Indian ownership. Individuals should not have a reserved water right. 3858. Goodman, Edmund J. “Indian Tribal Sovereignty and Water Resources: Watersheds, Ecosystems and Tribal Co-Management.” Journal of Land, Resources, & Environmental Law 20, no. 2 (2000): 185–221. Tribal concerns are found in many resources activities from irrigation projects to municipal use and as water use increases, so too will conflicts. This is an opportunity for the tribes, states, and federal government to practice “integrated decision-making among the various interests involved.” Inherent tribal sovereignty will insure that the tribes participate. 3859. Gover, B. Kevin, Catherine Baker Stetson, and Susan M. Williams. “In re: The General Adjudication of the All Rights to Use Water in the Big Horn River System and All Other Sources in the State of Wyoming.” Arkansas Law Review 46, no. 1 (1993): 237–70. The Wind River water case was a critical point in tribal water law whereby Wyoming claimed control over the water. One potential way to circumvent conflict is to create a state–tribal compact where records are maintained to insure compliance. The tribes want to develop a future instream flow use of water for the fishery. 3860. Graening, Paige. “Judicial Failure to Recognize a Reserved Groundwater Right for the Wind River Indian Reservation, Wyoming.” Tulsa Law Journal 27 (Fall 1991): 1–25. The Tweedy v. Texas Co. case was one of the first to involve tribal ground water rights within a reservation. Initiated on the Blackfeet Reservation, the case is relevant to Big Horn because the court decided that the same principles regarding tribal surface water rights apply to groundwater, thus supporting tribal arguments for groundwater rights. The Wyoming Supreme Court’s ruling was disturbing because it restricted the Wind River Reservation water

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to a narrow view of the treaty and misinterpreted the proper use of tribal ground water rights. 3861. Griffith, Gwendolyn. “Indian Claims to Groundwater: Reserved Rights or Beneficial Interest?” Stanford Law Review 33 (November 1980): 103–30. The present law does not define tribal ownership of groundwater. As a means to get around this problem, following the reserved right theory, tribes would get only enough water to irrigate, while a beneficial right argument would provide them with a fixed right that is not tied to use such as potential irrigable acres. 3862. Grijlava, James M. “Tribal Governmental Regulations of Non-Indian Polluters.” North Dakota Law Review 71, no. 2 (1995): 433–72. Regulating pollution on the reservation is a function of tribal sovereignty. By taking the initiative and passing water quality standards, tribal leaders are letting non-Indian residents know that the tribes will indeed enforce their environmental regulations. Despite many past hardships and blows to tribal sovereignty, Congress got it right in section 518 of the Clean Water Act. 3863. Grijalva, James M. “Where Are the Tribal Water Quality Standards and TMDLSs?” Natural Resources & Environment 18 (Fall 2003): 63–69. Surface waters that do not meet Clean Water Standards are impaired. In 1972, Congress passed the total maximum daily loads to bring impaired waters into compliance. Despite EPA’s strong stand for tribal self-governance and regulatory administration, a tribe must convince the EPA they have inherent sovereignty to be treated as having state status. 3864. Guerrero, Marianna. “American Indian Water Rights: The Blood of Life in Native North America.” In The State of Native America: Genocide, Colonization, and Resistance, edited by M. Annette Jaimes, 189– 216. Boston, MA: South End Press, 1992. Originally tribal water rights were by implication integrally tied to larger treaty negotiations affecting land rights, but they were later separated. Tribal people were left with land rights but witnessed the loss of the accompanying water rights. These historical water rights developments are traced with special focus on Winters, subsequent court cases, and the North American Water and Power Alliance. The Native fight for their water rights serves the interests of most non-Indian Americans and is thus a potential source of cooperation. 3865. Hammond, Mary Mead. “Federal Instream Flow Reserved Rights: New Decisions with Big Impacts.” Rocky Mountain Mineral Law Institute 46 (2000): 26-1–26-53.

Reviews recent major reserved water cases and the federal government’s failure to prevail on the issue of instream flow. Also discusses tribal reserved water rights. 3866. Hannum, Eric. “Administration of Reserved Water and Non-Reserved Water Rights on an Indian Reservation: Post Adjudication Questions on the Big Horn River.” Natural Resources Journal 32 (Summer 1992): 681–704. In Re. Rights to Use of Water in Big Horn River, known as Big Horn I, two questions arose. Can “tribes use their reserved water right for instream flow” outside of Wyoming water law? The answer was yes, based on federal and tribal authority. Second, can the tribal water department assume authority over non-Indian reservation water users? Hannum discusses the issues affecting the second question. 3867. Hansen, Adrian N. “The Endangered Species Act and Extinction of Reserved Indian Water Rights on the San Juan River.” Arizona Law Review 37, no. 4 (1995): 1305–44. There are tribal, federal, and state water claims to the San Juan River. The 1973 Endangered Species Act may hurt tribal water rights. Implementing the act affects the Southern Ute, Jicarilla Apache, Ute Mountain, and Navajo reservations. They face the reality of not using their water on the reservation and selling tribal water. 3868. Harbison, John S. “The Downstream People: Treating Tribes as States under the Clean Water Act.” North Dakota Law Review 71, no. 2 (1995): 473–95. Supports increasing tribal sovereignty and encourages tribes to take advantage of the Clean Water Act through administrative regulations and protect their watersheds. 3869. Hare, John C. Indian Water Rights: An Analysis of Current and Pending Indian Water Rights Settlements. The Confederated Tribes of the Chehalis and Office of Trust Responsibilities, BIA, 1996. Short study discussing Winters, the current tribal reserve water right negotiations with states, and what the future will hold for tribal water negotiations. An update and an evaluation of recent tribal– congressional ratified state–federal–tribal compacts is included. The study supports the current trend toward negotiation. 3870. Helton, Taiawagi. “Indian Reserved Water Rights in the Dual-System of Oklahoma.” Tulsa Law Journal 33 (Spring/Summer 1998): 979–1002. Oklahoma has both riparian and prior appropriation water rights that Winters has made even more complex. Oklahoma tribes had not been involved in

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water litigation, but the Osage have laid a reserved water claim that others will follow. 3871. Hermann, Christopher R. “The Water Rights of Klamath Allottees.” Oregon Law Review 59, nos. 2 and 3 (1980): 299–325. The Klamath Reservation was allotted under the 1887 General Allotment Act and the heirs retain a share of the tribe’s reserved water right from the 1864 treaty. The scope of the heirs’ water rights has not been defined, setting the table for a conflict with non-Indian water users who may have to reduce their water usage. 3872. Hesse, George R. “Securing Tangible Results of SelfDetermination: A Scheme to Solicit Support from the International Boundary and Water Commission for Indigenous Peoples’ Water Rights Claims.” Arizona Journal of International and Comparative Law 8, no. 2 (1991): 149–70. The Tohono O’odham signed the Southern Arizona Water Rights Settlement Act of 1982, but instead of using Winters rights, as an independent nation, they should use the international forum the International Boundary and Water Commission created in 1944. 3873. Hickey, Michael M. “Application of the Winters Doctrine: Quantification of the Madison Formation.” South Dakota Law Review 21 (Winter 1976): 144–59. The Madison Formation aquifer extends from Big Horn Mountains in Wyoming to the Missouri River in South Dakota. Tribes living above this ground water formation have Winters rights. Hickey proposes three quantification methods, including present uses and needs, potential irrigable acres, and open-ended use of Winters rights. 3874. Hill, James D. “Tribal Water Quality Standards: An Eye to the Future.” In Water Law: Trends, Policies, and Practice, edited by Kathleen Marion Carr and James D. Crammond, 217–25. Chicago, IL: ABA Section of Natural Resources, Energy, and Environmental Law, 1995. Discusses the Clean Water Act, factors tribes should consider when deciding whether to set Water Quality Standards for reservation surface waters, and ways tribes can guard against the effects of upstream polluting. Tribal standards are more likely to meet their needs than are state standards. 3875. Hillhouse, William A., II, and Felicity Hannay. “Practical Implications of the New National Water Policy.” Rocky Mountain Mineral Law Institute 25 (1979): 22-1–22-59. Considers ways the Carter administration’s national water policy might affect tribal water.

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3876. Hostyk, Aaron H. “Who Controls the Water? The Emerging Balance among Federal, State, and Indian Jurisdictional Claims and Its Impact on the Energy Development in the Upper Colorado and Upper Missouri River Basins.” Tulsa Law Journal 18, no. 1 (1982): 1–78. Legal history of water rights issues and their relation to energy development. Examines oil shale, coal gasification, and coal liquefaction, as well as coal deposits. 3877. Hundley, Norris, Jr. “California’s Aboriginal Waterscape: Harmony and Manipulation.” California History 65 (March 1987): 2–11. Native Californians manipulated their natural world, including their waterscape, but did so with a sensitivity to the natural balance of ecosystems. This sensitivity differentiates them from modern water development, as does the fact that they did not believe in the existence of private property rights in the use of water. 3878. Hundley, Norris, Jr. “The Dark and Bloody Ground of Indian Water Rights: Confusion Elevated to Principle.” Western Historical Quarterly 9 (October 1978): 455–82. Regards Indian water law as confused and thus an impediment to positive change on reservations. The court delivered a “muddled opinion” in Winters, failing to specify whether the rights were reserved by Indians or by the federal government. Congress and the executive branch have proved inactive, if not obstructionist, in regards to Indian water rights. 3879. Hundley, Norris Jr. “Water and the West in Historical Imagination.” Western Historical Quarterly 27 (Spring 1996): 5–31. Surveys and assesses literature dealing with the history of water in the West. A portion includes comments on articles dealing with Indian water rights, which historians “essentially ignored” until the 1960s and 1970s. 3880. Hundley, Norris, Jr. “The Winters Decision and Indian Water Rights: A Mystery Reexamined.” Western Historical Quarterly 13 (January 1982): 17–42. Clarifies the intended meaning of this landmark case, stemming from the Fort Belknap reservation in Montana, in regard to the volume of the Indian right, the legitimate uses of that water, and Indian priority over non-Indian claims. 3881. Hutchins, Wells A. “Pueblo Water Rights in the West.” Texas Law Review 38 (June 1960): 748–62. Pueblo water rights reached the California courts in an 1886 riparian case that laid the foundation of Pueblo water law and passed this right to the cities

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that grew on the Pueblos. In 1958, the New Mexico State Supreme Court held in the Cartwright decision that the utility only acted as the agent for the Pueblo rights. This case is a forerunner of future tribal–state water conflicts. 3882. “Indian Reserved Water Rights: The Winters of Our Discontent.” Yale Law Journal 88 (July 1979): 1689–1712. As long as tribes do not determine their Winters rights, they continue to create water uncertainties in a fully appropriated and very dry west. 3883. Isham, Robert, Jr. “Colville Confederated Tribes v. Walton: Indian Water Rights and Regulations in the Ninth Circuit.” Montana Law Review 43 (Summer 1982): 247–69. In this case, the Ninth Circuit Court reversed itself on several points and created a new water right for non-Indian landowners on the reservation, making this one of the most important Indian water cases since Arizona v. Californa. 3884. Jacobsen, Judith E. “The Navajo Indian Irrigation Project and Quantification of Navajo Winters Rights.” Natural Resources Journal 32 (Winter 1992): 825–53. It has been argued that when the Navajo Nation accepted the provisions of the legislation creating the Navajo Indian Irrigation Project it also accepted and quantified its Winters rights. An examination of the treaty and statutory language demonstrates that Congress did not clearly intend to quantify the tribe’s reserved water rights. 3885. Juliano, Ann. “Redesignating Tribal Trust Land under Section 164(c) of the Clean Water Act.” Tulsa Law Journal 35 (Fall 1999): 37–54. Indian Country is often excluded from congressional statutes such as the Clean Water Act. These specific acts should be amended to eliminate any exclusion or confusion. 3886. Kannler, Kathleen A. “The Struggle among the States, the Federal Government, and Federally Recognized Tribes to Establish Water Quality Standards for Waters Located on Reservations.” Georgetown International Environmental Review 15, no. 1 (2002): 53–77. Congress has amended the Clean Water of Act of 1972 providing tribes more authority to determine and enforce reservation water standards. Tribes must be careful to not set standards that create extraordinary economic burdens on the members and nonmembers, but they must take advantage of this window to exercise their sovereignty.

3887. Karr, Steven M. “‘Water We Believed Could Never Belong to Anyone’: The San Luis Rey River and the Pala Indians of Southern California.” American Indian Quarterly 24 (Spring 2000): 381–99. Examines the importance of water to the Pala identity. These people outside San Diego have fought to keep their water and protect the riverbanks from erosion caused by construction of Henshaw Dam. 3888. King, Gary K. “Federal Non-Reserved Water Rights: Fact or Fiction?” Natural Resources Journal 22 (April 1982): 423–32. Federal non-reserved waters are claimed like prior appropriation rights, making it possible for the federal government to argue that it possesses an instream flow in states that do not follow that practice. This has become a point of contention in the Wind River litigation. 3889. Kirk, Peggy Sue. “Water Law–Indian Law–Cowboys, Indians and Reserved Water Rights: May a Court Limit How Indian Tribes Use Their Water?” Land and Water Law Review 28, no. 2 (1993): 467–88. When the Wyoming state engineer refused to enforce the Wind River water rights as decided by the court, the tribes filed suit against the engineer for contempt. Though federal courts have permitted state courts to adjudicate tribal reserve water rights, they must follow federal law and, in Big Horn III, the state failed to do so, bringing into question the importance of moving tribal water litigation out of state courts. 3890. Kirwan, Laura and Daniel McCool. “Negotiated Water Settlements: Environmentalists and American Indians.” In Trusteeship in Change: Toward Tribal Autonomy in Resource Management, edited by Richmond L. Clow and Imre Sutton, 265–80. Boulder: University of Colorado Press, 2001. Recent trends in resource settlements are moving toward negotiations. Tribal water rights and reservation environmental issues are two areas where negotiation has been successful, often replacing litigation. To be successful, all parties must understand and accept the legitimacy of tribal sovereignty. 3891. Kono, Kevin H. “The Trust Doctrine and the Clean Water Act: The Environmental Protection Agency’s Duty to Enforce Water Quality Standards against Upstream Polluters.” Oregon Law Review 80 (Summer 2001): 677–716. Some tribes have attained “treatment as state” status under the Clean Water Act, but the law does not address whether tribes can have higher water standards than the law nor can they enforce their standards against upstream polluters. Because of the trust

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doctrine, the federal government and EPA should monitor and regulate these conflicts. 3892. Kropf, Ramsey. “Allotment Water Rights.” In Tribal Water Rights: Essays in Contemporary Law, Policy, and Economics, edited by John E. Thorson, Sarah Britton, and Bonnie G. Colby, 95–114. Tucson: University of Arizona Press, 2006. Examines case law affecting water rights on allotted lands. This issue complicates negotiated settlements and must be addressed directly and creatively. Tribal water codes are one means to do so. 3893. Laird, Michael S. “Water Rights: The Winters Cloud Over the Rockies: Indian Water Rights and the Development of Western Energy Resources.” American Indian Law Review 7, no. 1 (1979): 155–69. As energy companies develop western resources, the right to the water used in resource extraction and even transportation is a question because many western tribes have not quantified their Winters rights. This situation creates uncertainty in developing western energy sources. 3894. Lamb, Michael F. “Adjudication of Indian Water Rights: Implementation of the 1979 Amendments to the Montana Water Use Act.” Montana Law Review 41 (Winter 1980): 73–95. The 1979 amendments were intended to initiate state negotiation with tribes to adjudicate reservation’s reserved water rights. Tribes opposed the state forum that emerged from McCarran Amendment litigation. 3895. Lamb, Terrance J. “Indian–Government Relations on Water Utilization in the Salt and Gila River Valleys of Southern Arizona.” Indian Historian 10 (Summer 1977): 38–45, 61. Overview of the issues affecting the Salt River and Gila River when the reservation irrigation projects were conceived, including allotment size, water quality, and cost. Project costs soared and tribal water rights were put in jeopardy. 3896. Laney, Nancy K. “Transferability under the Papago Water Rights Settlement.” Arizona Law Review 26, no. 2 (1984): 421–43. Papagos (Tohono O’odhams) negotiated a settlement with other local water users. Congress passed the Southern Arizona Water Resources Settlement Act in 1982, thus quantifying the user’s water right. The settlement included a water transferability provision providing the tribe greater flexibility in using their water. 3897. Lawson, Michael L. “Federal Water Projects and Indian Lands. The Pick-Sloan Plan, a Case Study.”

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American Indian Culture and Research Journal 7, no. 1 (1983): 23–40. This program was more damaging environmentally, economically, and culturally to Indian lands and people than any other public work, adversely affecting twenty-three reservations. Tribes were not consulted beforehand, but tribal leaders attempted to negotiate for compensation, with uneven results from one tribe to the next. The episode reveals the federal government’s insensitivity to tribal rights and failure to comply with the Winters doctrine. 3898. Lawson, Michael L. “The Navajo Indian Irrigation Project: Muddied Past, Clouded Future.” Indian Historian 9 (Winter 1976): 19–29. Navajos must preserve their water rights if they are going to develop their energy resources. They should limit their water use for energy development as much as possible. 3899. Leach, Carol S. “Federal Reserved Rights in Water: The Problem of Quantification.” Texas Tech Law Review 7 (Fall 1997): 89–111. Discusses problems that quantification poses for the adjudication of federal and tribal reserved water rights. 3900. Leaphart, Bill. “Sale and Lease of Indian Water Rights.” Montana Law Review 33 (Summer 1972): 266–76. In 1956, the United States v. Ahtanum court determined that Winters rights were restricted to irrigation and farming. United States v. Powers defends future uses. Leaphart argues that need is more important than use and Congress should insure that tribes can use their rights off-reservation. 3901. Leeper, John W. “The Impact of Water Control on Navajo Irrigation Practices.” In Indian Water in the New West, edited by Thomas R. McGuire, William B. Lord, and Mary G. Wallace, 185–94. Tucson: University of Arizona Press, 1993. The Navajo irrigation works have a crop-intensity of only 33 percent while Bureau of Reclamation projects are at 85 percent. The reason for this disparity is the lack of Navajo “physical and organizational control” over their irrigation system. 3902. Levine, Frances. “Dividing the Water: The Impact of Water Rights Adjudication on New Mexican Communities.” Journal of the Southwest 32 (Autumn 1990): 268–77. Considers how the State of New Mexico ex. re. Reynolds vs. R. Lee Aamodt, et al. and other water rights adjudications have effected New Mexican communities and the centuries-old agreements made between them to share water. Water rights laws are

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generally at odds with traditional practice, making more sense to lawyers than the concerned public. River basin management and negotiated water rights are recommended. 3903. Lévy, Pierre. “Which Right Is Right: The Pueblo Water Rights Doctrine Meets Prior Appropriations.” Natural Resources Journal 35 (Spring 1995): 413–34. Under Spanish and Mexican law, a pueblo land grant included a right to water, but if the community increased in size there was an obligation in the adjudication process to increase the water allocation. This doctrine competed against prior appropriation in the New Mexico Court of Appeals in Cartwright v. Public Service Company of New Mexico (1994). The Pueblo doctrine, imported from California, has no basis in New Mexico. 3904. Lichtenfels, Christine. “Indian Reserved Water Rights: An Argument for the Right to Export and Sell.” Land and Water Law Review 24, no. 1 (1989): 131–51. Tribal sovereignty, federal trust obligations, law and logic support tribal rights to sell water. Using the Shoshone treaty, Lichtenfels argues that the tribe’s reserved water can by used for many purposes including commercial sale. 3905. Lieder, Michael. “Adjudication of Indian Water Rights under the McCarren Amendment: Two Courts Are Better Than One.” Georgetown Law Journal 71 (February 1983): 1023–61. Congress waived the U.S. sovereign immunity defense in western stream adjudication thus permitting states to sue the federal government in state courts, but the act does not expressly address whether it applies to Indian water rights. The Supreme Court answered this question in Colorado River Water Conservation District v. United States in 1976, ruling that the McCarren Amendment “gave state court jurisdiction to determine federal reserved rights held for the benefit of a tribe.” The court did not explore all available avenues of water adjudication. Federal rights are best served in federal court and state water rights are best served in state court. 3906. Lightstone, Marte. “Indian Water Law: The Continuing Jurisdictional Nightmare.” Natural Resources Journal 25 (July 1985): 841–56. The Ninth Circuit Court of Appeals decided in United States v. Anderson in 1984, that the state of Washington would have authority over non-tribal members’ excessive use of water on the reservation. This decision continues the checkerboard pattern of jurisdiction and diminishes tribal water use and water control.

3907. Liu, Sylvia F. “American Indian Reserved Water Rights: The Federal Obligation to Protect Tribal Water Resources and Tribal Autonomy.” Environmental Law 25 (Spring 1995): 425–62. Presents three neglected avenues for settling tribal reserved water rights: historical disparity between white and Indian, need and fairness, and advancing tribal sovereignty. Based on inequities, the federal government should “advocate broad reserved water rights while allowing American Indian tribes to exercise their own sovereignty in determining what to do with their reserved water.” 3908. Long, Phyllis. “Beyond the Water Line.” In Defending Mother Earth: Native American Perspectives on Environmental Justice, edited by Jace Weaver, 85–98. Maryknoll, NY: Orbis Books, 1996. Discusses the Missouri River water development projects, beginning with the 1944 Pick-Sloan plan that initiated the construction of dams along reservations in South and North Dakota that flooded many tribal communities. Also discusses continued water development and the importance of tribes defining their water rights to the Missouri River. 3909. Lord, William B. and Mary G. Wallace, eds. Symposium Proceedings on Indian Water Rights and Water Resources Management. Bethesda, MD: American Water Resources Association, 1989. Short essays by various authors. The editors stress that we are entering a new era in water resources management with tribes becoming more politically active and technically competent and with greater flexibility in water allocation and management institutions. Topics include the negotiations process, settlements, reserved rights claims, water projects, and fish flow objectives. 3910. Lovacs, Leanora A. “United States v. Cherokee Nation—Indian Water Rights: Giving with One Hand and Taking with the Other.” Pace Environmental Law Review 6 (Fall 1988): 255–67. In 1987, the Supreme Court decided that the Cherokee Nation was not entitled to compensation for damages to the Arkansas River bed due to construction projects, claiming the Commerce Clause gave the U.S. authority “to control navigation and that this power creates a dominant servitude to which the fifth amendment takings clause does not apply.” Past precedent established in Cress has been ignored. 3911. MacIntyre, Donald D. “Quantification of Indian Reserved Water Rights in Montana: State ex rel. Greely in the Footsteps of San Carlos Apache Tribe.” Public Land Law Review 8 (1987): 33–59. The Supreme Court in San Carlos opened the door for state court, single forum, basin-wide water adjudi-

Water Law

cation based on the McCarren Amendment and the Akin decision. The Montana Supreme Court answered several questions in State ex rel. Greely. It decided that the state constitutional disclaimer did not prohibit state courts from being forums for water quantification and that P. L. 280 did not give the state authority over tribal water. Also, the state high court decided that the Montana Water Use Act was not explicit when discussing tribal water, but federal practices such as potential irrigable acres would be followed. 3912. McCallister, Elizabeth. “Water Rights: the McCarran Amendment and Indian Tribes’ Reserved Water Rights.” American Indian Law Review 4, no. 2 (1976): 303–10. In hearing Colorado River Water Conservation District v. United States and Akin v. United States together, the Supreme Court handed to state courts the right to adjudicate tribal reserved water rights and federal reserved waters in state courts. 3913. McCool, Daniel. Command of the Waters: Iron Triangles, Federal Water Development, and Indian Water. Tucson: University of Arizona Press, 1987. From the turn of the century to the present, the BIA and other federal water development agencies have hindered tribal water development. There is a political and self-interest relationship among special interest groups, bureaucrats, and lobbyists. The two legal premises are case law of tribal reserved rights and legislation protecting non-Indians. 3914. McCool, Daniel. “Indian Water Rights, the Central Arizona Project and Water Policy in the Lower Colorado River Basin.” Journal of Energy Law and Policy 2, no. 1 (1981): 107–21. Federal and state policy-makers have failed to uphold Winters tribal reserved water rights. Law makers have wanted to see tribal water rights diminish as well, forcing tribes to rely on their own expertise and less on the federal government. 3915. McCool, Daniel. “Intergovernmental Conflict and Indian Water Rights: An Assessment of Negotiated Settlements.” Publius, the Journal of Federalism 23 (Winter 1993): 85–101. To reduce the emotion and anger associated with tribal–state water litigation, many tribes and states have initiated water negotiations. Though often costlier than litigation, negotiation is a more humane way to reduce hostility. 3916. McCool, Daniel. Native Waters: Contemporary Indian Water Settlements and the Second Treaty Era. Tucson: University of Arizona Press, 2002. Tells the human story of tribal water development and water settlements. Many of the recent tribal wa-

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ter settlements are only two decades old and not enough time has passed to determine if they were good or bad deals. 3917. McCool, Daniel. “Negotiating Water Settlements: Ten Common Themes.” In Indian Water in the New West, edited by Thomas R. McGuire, William B. Lord, and Mary G. Wallace, 89–102. Tucson: University of Arizona Press, 1993. The advent of negotiated tribal water rights settlements followed several consistent themes. They include “deference to the states and the law of the river,” environmental considerations, marketing and leasing limits, “flexible negotiations,” finding new water, “cost sharing and pork barrel” politics, “presidential opposition,” sacrifice something to the Indians, and “sovereignty with comity.” 3918. McCool, Daniel. “Precedent for the Winters Doctrine: Seven Legal Principles.” Journal of the Southwest 29 (Summer 1987): 164–78. Winters proved important in the preservation of Indian water rights, but was neither “revolutionary” nor “without precedent.” It represented the union of seven legal principles: “the reservation of water, the principle of non-use, the expansion of a water right for future use, the preferential treatment of Indians, the federal guardianship of Indians, the communal ownership of water, and the supremacy of federal law.” These principles are traced to influential foreign and U.S. legal precedents. 3919. McCool, Daniel. “Winters Comes Home to Roost.” In Fluid Arguments: Five Centuries of Western Water Conflict, edited by Char Miller, 120–38. Tucson: University of Arizona Press, 2001. Winters spawned decades of conflict in the courts. By the late 1970s and 1980s, non-Indians and Indians were more open to negotiations because both groups believed they were in vulnerable positions. The ensuing years of negotiated settlements can be considered as “a second treaty era.” 3920. McElroy, Scott B. “History Repeats Itself—A Response to the Opponents of the Colorado Ute Indian Water Rights Settlement Act of 1988.” University of Denver Water Law Review 2 (Spring 1999): 244–66. Congress passed legislation in 1988 to build the Animas–LaPlata Project to help both Indians and non-Indians gain water use in southwest Colorado and northwest New Mexico. Tribal opponents of the project have fought the Ute tribes, claiming that they are not entitled to a priority water date of 1868. This action has been taken to stop the project and to keep the water from getting to the tribal owners.

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3921. McGovern, Gina. “Settlement or Adjudication: Resolving Indian Reserved Water Rights.” Arizona Law Review 36, no. 1 (1994): 195–222. Whether tribal reserved water rights are adjudicated or settled through negotiation, either method reveals complex legal concerns because of the ambiguous nature of tribal reserved water rights. Congress should pass legislation that includes ground water as well as surface water, defines the differences between Indian and non-Indian reserved water rights, and rejects the assimilationist policies for quantifying water. 3922. McGuire, Thomas R. “Getting to Yes in the New West.” In State and Reservation: New Perspectives on Federal Indian Policy 224–46. edited by Castile, George Pierre and Robert L. Bee,Tucson: University of Arizona Press, 1992. Winters rights have often been negotiated rather than adjudicated. “Fundamental concepts of trust, equity, and entitlement are thus thrown open to interpretation by whatever community forms around the negotiating tables.” 3923. McGuire, Thomas R. “Illusions of Choice in the Indian Irrigation Service: The Ak Chin Project and an Epilogue.” Journal of the Southwest 30 (Summer 1988): 200–221. Explains failure of an irrigation project, but in doing so sheds light on Indian Office use of Section IV of the Dawes Act to obtain Ak Chin Papago land from the public domain, and subsequent efforts to obtain water for these land claims. 3924. McGuire, Thomas R. “Indian Water Rights Settlements: A Case Study in the Rhetoric of Implementation.” American Indian Culture and Research Journal 15, no. 2 (1991): 139–69. Discusses conflict between upholding Winters for the Tohono O’odham Nation in particular and assesses the Southern Arizona Water Rights Settlement Act of 1982 (P.L. 97-293). Although the settlement seemed to be a “win–win” solution, it did not prove flexible enough to deal with changes brought about later by Arizona’s evolving Groundwater Management Code and the Central Arizona Project. 3925. McGuire, Thomas R., William B. Lord and Mary G. Wallace, eds. Indian Water in the New West. Tucson: University of Arizona, 1993. Divided into five sections, that include history, interests, process, use, and reflections, the papers in this book were originally presented at a symposium on Indian Water Rights and Water Resource Management. The move toward privatization and the undefined tribal Winters rights keep the West in a state of

uncertainty, except for one truth, property can be transferred and that includes water. 3926. McMurry, C. Steven. “Implied Reservation Claims After Cappaert v. United States.” Arizona State Law Journal, no. 3 (1977): 647–72. Describes tribal water rights from Winters that provided for reservation water diversions, to Conrad which established that when tribal needs change, so too could the amount of water needed for their future. Congress anticipated future needs so that the quantity of tribal water may also change with that need. 3927. McNally, Mary. “The 1985 Fort Peck—Montana Compact: A Case Study.” In Indian Water in the New West, edited by Thomas R. McGuire, William B. Lord, and Mary G. Wallace, 103–13. Tucson: University of Arizona Press, 1993. In 1979, the Montana legislature created a water compact commission to negotiate with tribes in hopes of determining the extent of their water rights. The first meeting with Fort Peck leaders was in 1980. Tribal marketing was a point of conflict between the parties, as was the state’s goal of keeping the tribes’ water right below one million acres. 3928. Martinis, Berrie. “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.” Washington Law Review 68 (April 1993): 435–55. In Big Horn III, the Wyoming Supreme Court ruled that tribes do not have right to use their water for instream flow. The decision is contrary to the intent of the McCarren Amendment and will impede tribal sovereignty. 3929. Martone, Rosalie. “The United States and the Betrayal of Indian Water Rights.” Indian Historian 7 (Summer 1974): 3–11. Southwest water reclamation projects are projected for non-Indian water users. The Central Arizona and the San Juan Chama Projects are the worst because they will be used in the production of electricity from Black Mesa strip-mined coal. The publication of the National Water Commission report suggests adjudication as a solution. 3930. Marx, Jane and Susan M. Williams. “Water Rights Administration on Indian Reservations.” In Water Law: Trends, Policies, and Practice, edited by Kathleen Marion Carr and James D. Crammond, 204–16. Chicago, IL: ABA Section of Natural Resources, Energy, and Environmental Law, 1995. Tribes have inherent sovereign rights to control use of their reserved water rights, and without such tribal control “long-standing tribal sovereignty and

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freedom from state law will be eviscerated at its heart.” The Supreme Court Bourland, Brendale, and Big Horn III decisions did not limit tribal authority and have little effect.

ment is often asked to be a facilitator of water negotiations. One area of great concern to all parties involves the discussion of water marketing, making tribal water rights important to non-members too.

3931. Marx, Jane, Jana L. Walker and Susan M. Williams. “Tribal Jurisdiction over Reservation Water Quality and Quantity.” South Dakota Law Review 43, no. 2 (1998): 315–80. Tribal governments have control over member activities, but the Montana test must be met to determine if tribal authority extends to non-members’ fee lands. The federal environmental laws and regulations have been helpful.

3936. Membrino, Joseph R. “Indian Reserved Water Rights, Federalism and the Trust Responsibility.” Land and Water Law Review 27, no. 1 (1992): 1–31. In 1989, a divided Supreme Court “affirmed the adjudication of reserved rights” to the Wind River Reservation, but the future of “practicably irrigable acreage hangs in the balance.” Tribal water rights “will only have meaning if they can be accommodated in the regional economy in a way that gives value to Indians.” That will require the state’s executive to administer the federal trust responsibility.

3932. Massie, Michael. “The Cultural Roots of Indian Water Rights.” Annals of Wyoming 59 (Spring 1987): 15–28. Reassesses the series of events at Fort Belknap leading up to the Winters decision and stresses the need for scholars to understand the social, economic and political forces existing on that reservation around 1900 if they are to understand tribal water rights. 3933. Massie, Michael. “Same Decision, Different Results? Indian Water Rights and the Wind River Case.” Annals of Wyoming 63 (Fall 1991): 164–67. The Winters decision affecting Fort Belknap and a 1989 Supreme Court decision affecting the Shoshones and Arapahoes at Wind River were similar rulings with very different results. The Wind River tribes are in a stronger position than were the Fort Belknap tribes to gain tangible benefit from the court ruling. 3934. Maynez, A. Patrick. “Pueblo Indian Water Rights: Who Will Get the Water? New Mexico v. Aamodt.” Natural Resources Journal 18 (July 1978): 639–58. The state initiated suit in 1966 to determine the water rights to the Nambe–Pojoaque Rivers and nearly 1,000 were named as defendants. The lower federal court ruled that Pueblo water rights were under New Mexico prior appropriation doctrine and, on appeal the Tenth Circuit Court of Appeals, declared that the state law did not control Pueblo water rights. By using Sandoval and Candelaria, the court may have changed the criteria for determining a tribal reserved water right. 3935. Membrino, Joseph R. “A Federal Perspective.” In Indian Water in the New West, edited by Thomas R. McGuire, William B. Lord, and Mary G. Wallace, 57–70. Tucson: University of Arizona Press, 1993. Competition between different agencies in the Department of the Interior makes the determination of a tribal water right difficult, even though the Depart-

3937. Merrill, James L. “Aboriginal Water Rights.” Natural Resources Journal 20 (January 1980): 45–70. Aboriginal rights predate prior appropriation dates and the former water rights pose a greater threat to current water users because “they may displace federal water rights as well as those held under the state” doctrine. 3938. Meyer, Michael C. “The Legal Relationship of Land to Water in Northern Mexico and the Hispanic Southwest.” New Mexico Historical Review 60 (January 1985): 61–79. Claims that Spanish law in the region granted water rights depending on the nature of land classification, and includes brief mention of disputes involving Native populations. 3939. Miklas, Christine L. and Steven J. Shupe, eds. Indian Water 1985: Collected Essays. Oakland, CA: American Indian Resources Institute, 1986. Essays are divided into three sections: decisions and settlements, perspectives, and tools for water planning. Wet water is a phrase that sets the tone, a term that means actual delivery of water to a tribal water project instead of an unusable paper right. 3940. Miller, Gerald R. “Indians, Water, and the Arid Western States—A Prelude to the Pelton Decision.” Utah Law Review 5 (Fall 1957): 495–510. The Federal Power Commission approved a power project on the Warm Springs Reservation, but the Supreme Court decided that the federal government has the right to issue a license based on the Desert Land Act. 3941. Miller, Jody. “Taming the Rapids: Negotiation of Federal Reserved Water Rights in Montana.” Public Land Law Review 6 (1985): 167–82. Overview of Montana’s efforts to adjudicate federal and tribal reserved water rights. The state legislature

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has assisted the process by enacting legislation for basin-wide adjudication and creating the Montana Reserved Water Rights Compact Commission to negotiate with tribal and federal authorities. After six years, the only tribal water compact that was completed was with the Fort Peck Reservation. 3942. Mills, Lamond R. “Federally Reserved Rights to Underground Water—A Rising Question in the Arid West.” Utah Law Review 1973 (Spring 1973): 43–54. The Winters decision threatens western states’ water development because of its application to reservations, as well as other federally controlled lands. 3943. Monahan, Barbara S. “Florida’s Seminole Indian Land Claims Agreement: Vehicle for an Innovative Water Rights Compact.” American Indian Law Review 15, no. 2 (1990): 341–68. The Seminole Tribe, Florida, and South Florida Water Management District is the first tripartite water settlement in the country. The tribe made tradeoffs and gained benefits at a time when Florida’s population was booming. But what will happen to this settlement and tribal water use as the tribe purchases more land? 3944. Mondou, Darla J. “The American Indian Agricultural Resources Management Act: Does the Winters Water Bucket Have a Hole in It?” Drake Journal of Agricultural Law 3 (Winter 1998): 381–422. Congress passed this act in 1993 to put idle reservation agricultural lands back into production. With only a reserved right to water, “tribes lack the financial support of the federal government to enforce that right by farming their land.” Tribes need government-togovernment relations with the USDA.

Advocates that the federal government become more involved in tribal water allocation in the West and makes four recommendations to further this process of tribal water quantification. 3948. Moore, Mikel and John B. Weldon, Jr. “General Water-Rights Adjudication in Arizona: Yesterday, Today and Tomorrow.” Arizona Law Review 27, no. 3 (1985): 709–29. To settle water claims in Arizona, the state initiated stream adjudication in 1974 involving tribal and federal rights. The suit forced federal courts to intervene and ruled that the McCarren Amendment permitted Arizona to sue tribes in state court, but it must be a comprehensive adjudication. Another issue was the extent of federal involvement in tribal communities’ water adjudication and that was settled in the Adair ruling that the federal rights to reservation water were rooted in federal law. 3949. Morris, C. Patrick. “Hydroelectric Development and the Human Rights of Indigenous People.” In The Struggle for the Land: Indigenous Insight and Industrial Empire in the Semiarid World, edited by Paul A. Olson, 193–209. Lincoln: University of Nebraska Press, 1990. Brief case studies from the U.S. (including the Pick-Sloan Plan, the Yellowtail Dam, and the Crow tribe), Norway and Mexico show that “the economies of indigenous populations in ‘water poor’ regions are especially vulnerable to hydroelectric development.” These projects threaten their lands and water resources.

3945. Monette, Richard, James M. Grijalva, P. S. Deloria, Judith V. Royster, and Rebecca Tsosie. “Commentary: Treating Tribes as States under the Clean Water Act—The Good and the Bad.” North Dakota Law Review 71, no. 2 (1995): 497–518. Group comment on a variety of environmental issues facing tribes, especially water.

3950. Morrison, Richard N. “State and Federal Law in Conflict over Indian and Other Federal Reserved Water Rights,” Drake Journal of Agricultural Law 2 (Spring 1997): 1–14. Offers an overview of federal reserved water rights and discusses the recent problems tribes have marketing water off the reservation. The process of settling conflicting water claims should be streamlined.

3946. Moore, Lucy and Steve Snyder. “Reassessing Klamath.” In Tribal Water Rights: Essays in Contemporary Law, Policy, and Economics, edited by John E. Thorson, Sarah Britton, and Bonnie G. Colby, 142–54. Tucson: University of Arizona Press, 2006. The competition for water in the Klamath basin serves to illustrate methods for resolving waterresource conflicts. The authors summarize a discussion among involved parties of why various alternative dispute resolution methods failed relative to the basin.

3951. Morrison, Sharon M. “Comments on Indian Water Rights.” Montana Law Review 41 (Winter 1980): 39–72. Tribal water rights are even more complex today than in the past with questions concerning nonIndians residing within reservations, the extent of aboriginal rights, and allottees’ rights. There are doubts concerning the application of the Akin decision in Montana that make it necessary to separate Indian and non-Indian rights.

3947. Moore, Michael R. “Native American Water Rights: Efficiency and Fairness.” Natural Resources Journal 29 (Summer 1989): 763–91.

3952. Moser, Kurt R. “Water Quality Standards and Indian Tribes: Are Tribes Afraid of Clean Water?” Water Law Review 8 (Fall 2004): 27–54.

Water Law

The final tribes-as-states rule was passed in 1991, but only 23 tribes, out of 278, have enacted EPA approved water standards. Many areas have no water quality standards and since the passage of the 1978 Clean Water Act amendments, no state water quality regulations apply to reservations. 3953. Murphy, Lindsay. “Death of a Monster: Laws May Finally Kill Gila River Adjudication.” American Indian Law Review 28, no. 1 (2003–2004): 173–87. The Arizona Water Settlement Act may finally end 20 years of litigation regarding Gila River water rights. It will allow the Gila River Indian Community to lease its Central Arizona Project waters to local towns. This could be a positive step, but should conditions become more arid, it could be potentially destructive. 3954. Nash, Douglas R. “Tribal Water Code Development.” In Indian Water 1985: Collected Essays, edited by Christine L. Miklas and Steven J. Shupe, 117–31. Oakland, CA: American Indian Resources Institute, 1986. Tribes should develop a code to serve “as the cornerstone of a tribal water management program.” Nash describes the involved process in establishing one. 3955. “NCAI to GAO: Legislative Quantification of Indian Water Rights Is Not the Answer.” American Indian Journal of the Institute for the Development of Indian Law 5 (January 1979): 33–36. The GAO printed a draft report “Water Rights reserved for Federal and Indian Reservations.” Tribes were the losers in the draft’s proposals since the burden of proof was placed on them and there was no discussion of aboriginal rights. 3956. Nelson, Andrew. “Ciotti: Preserving Federal Protection of Indian Reserved Water Rights in Montana.” Public Land & Resources Law Review 20 (1999): 131–43. Tribal reserved water rights are not a good fit with the western states’ prior appropriation doctrine because of the tribes’ ability to enter the water use field and displace previous users. The Ciotti suit began on the Flathead Reservation and the Montana State Supreme Court decided that the court was bound “to declare the nature and scope of Indian reserved water rights.” As a result, this case preserves prior federal tribal reserved water rights. 3957. Nelson, Michael C. “Negotiating Indian Water Rights Settlements.” In Tribal Water Rights: Essays in Contemporary Law, Policy, and Economics, edited by John E. Thorson, Sarah Britton, and Bonnie G. Colby, 115–28. Tucson: University of Arizona Press, 2006.

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A former Arizona Superior Court judge discusses the Little Colorado River and Aamodt settlement negotiations. Though problematic, negotiations are usually preferable to litigation. 3958. Nelson, Michael C. The Winters Doctrine: Seventy Years of Application of ‘Reserved’Water Rights to Indian Reservations. Tucson: University of Arizona, Office of Arid Land Studies, Arid Lands Resource Information Paper, No. 9, 1977. Studies literature on tribal water rights and Winters, includes an annotated case law listing and discusses the nature and protection of tribal water rights. 3959. Newell, Alan S. “Tribal Reserved Water Rights and General Adjudications in New Mexico.” In Fluid Arguments: Five Centuries of Western Water Conflict, edited by Char Miller, 95–119. Tucson: University of Arizona Press, 2001. Reviews Winters and other cases key to the evolution of tribal water rights in federal Indian law, and highlights State of New Mexico v. L. T. Lewis et al., decided in 1993, to illustrate the challenge states face in “reconciling” their water law with federal law. The appeals court found that the tribe’s reserved right existed in 1852, prior to federal recognition of specific reservation boundaries in 1873. 3960. Newville, Ed. “Pueblo Indian Water Rights: Overview and Update on the Aamodt Litigation.” Natural Resources Journal 29 (Winter 1989): 251–78. This case involves litigation that has already spanned twenty years. Several court opinions have been written, but answers remain pertaining to the Pueblo Lands Act of 1924, Pueblo water rights and water rights after 1933. 3961. Nickeson, Steven. “The Indian Water Wars.” Race Relations Reporter 5, no. 9 (1974): 12–17. The U.S. has neglected tribal water rights for so long that tribal members are in danger of losing their water. 3962. Norton, Hana Samek. “‘Fantastical Assumptions’: A Centennial Overview of Water Use in New Mexico.” New Mexico Historical Review 73 (October 1998): 371–87. Focuses on the proposed H.R. 128, which would transfer control of western waters to state control, and analyzes the effects of major court cases and legislation on Pueblo, Mescalero, and other tribal water rights in New Mexico. 3963. Nuñez, Austin and Mary G. Wallace. “Solutions or Symbols? An Indian Perspective on Water Settlements.” In Indian Water in the New West, edited by Thomas R. McGuire, William B. Lord, and Mary G.

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Wallace, 35–53. Tucson: University of Arizona Press, 1993. The Winters decision recognized a tribal water right as unique and different than a state water right. The Supreme Court, despite its acceptance of a tribal water right, still defined that right as property, and that ignores the many dimensions of a tribal water right. The authors examine southwestern negotiated water settlements. At San Xavier Reservation, no water was delivered because they did not participate fully in the negotiation process. 3964. O’Day, Sean E. “San Carlos Apache Tribe v. Superior Court: Rejecting Legislative Favoritism in Water Right Allocations.” University of Denver Water Law Review 4 (Fall 2000): 29–75. As western water basins are adjudicated, the doctrine of prior appropriation and reserved rights can remove water from existing users. Idaho and Arizona state legislatures have enacted legislation to protect existing prior appropriation water users. The Arizona Supreme Court in San Carlos Apache Tribe declared that practice wrong. The findings of the Arizona court may not be limited to Arizona, reminding everyone that tribal and federal reserved water rights are property rights. 3965. O’Gara, Geoffrey. What You See in Clear Water: Life on the Wind River Reservation. New York: Alfred A. Knopf, 2000. A popular account of the water battle between the Wind River people and the state of Wyoming. The tribes wanted to preserve in-stream flow for the fishery and the state wanted the water used for agriculture. 3966. O’Hagen, Mike. “Ciotti II: Better to Adjudicate Than Litigate.” Public Land & Resources Law Review 23 (2002): 193–219. The Montana Supreme Court in Ciotti II informed the Department of Natural Resources and Confederated Salish and Kootenai Tribes that it was time to begin adjudicating water rights on the reservation. The court avoided any constitutional or tribal reserved water rights issues. 3967. O’Hair, Jennele Morris. “The Federal Reserved Rights Doctrine and Practicably Irrigable Acreage: Past, Present, and Future.” Brigham Young University Journal of Public Law 10, no. 2 (1996): 263–99. Federal and tribal water rights have been more adversarial as water competition has increased. The old PIA standard for determining tribal reserve water rights is not appropriate based on federal promises about the future. The “reasonable likelihood” standard is in the wings waiting to replace PIA.

3968. Oliver, Lester. “Indian Water Needs.” American Forests 64 (December 1958): 28, 45–46. Tribal water needs on the Fort Apache Reservation are pressing for economic and recreational purposes. 3969. Orem, Belinda K. “Paleface, Redskin, and the Great White Chiefs in Washington: Drawing the Battle Lines over Western Water Rights.” San Diego Law Review 17 (March 1980): 449–89. Water laws and courts have created tribal–federal reserved water rights clashes with state vested water rights. The solution to the shortage is to modify the implied reservation doctrine permitting states to administer and divide state waters on a comprehensive basis. 3970. Ortiz, Alfonso. “The Gila River Piman Water Problem: An Ethnohistorical Account.” In The Changing Ways of Southwestern Indians: A Historic Perspective, edited by Albert H. Schroeder, 245–57. Glorieta, NM: Rio Grande Press, 1973. The Pimas did not face an extended water shortage until Americans settled upstream. The most acute shortage occurred between 1871 and 1910. The Pimas were forced to drill wells in 1953 but their farms continued to suffer. 3971. Ortiz, Roxanne Dunbar. “The Roots of Resistance: Pueblo Land Tenure and Spanish Colonization.” Journal of Ethnic Studies 5 (Winter 1978): 33–53. Pueblo and non-Pueblo water conflicts in New Mexico result from scarcity. Other tribal nations attempted to keep the Spanish and Pueblos tied to limited water sources and isolated from each other preventing them from establishing a united force. 3972. Owley, Jessica. “Tribal Sovereignty over Water Quality.” Journal of Land Use & Environmental Law 20 (Fall 2004): 61–116. Tribes should invoke positive federal environmental laws with tribal courts as the forum for any disputes. 3973. Palma, Jack D., II. “Considerations and Conclusions Concerning the Transferability of Indian Water Rights.” Natural Resources Journal 20 (January 1980): 91–100. Only when Winters is argued as an economic doctrine will tribes be able to transfer water off the reservation for sale or lease. 3974. Palma, Jack D., II. “Indian Water Rights: A State Perspective after Akin.” Nebraska Law Review 57, no. 2 (1978): 295–318. As an assistant attorney general for Wyoming, Palma considers state adjudication of tribal water a necessity, arguing that tribal water rights must be quantified to establish relations with non-Indians.

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The Akin decision eliminated some of the uncertainty of federal lawsuits hanging over states as they administer water allocation. 3975. Patterson, John. “Extent of Indian Water Rights on Reservations in the West.” Rocky Mountain Law Review 18 (June 1946): 427–30. The Winters and Conrad cases present two differing measurements of tribal water for use on the reservations. The Bureau of Reclamation’s full basin water use projects now make the size of tribal water rights important in determining the available water for non-Indian use under these Bureau projects. 3976. Pelcyger, Robert S. “Indian Water Rights: Some Emerging Frontiers.” Rocky Mountain Mineral Law Institute 21 (1975): 743–75. Winters makes no distinction between ground water and surface water and current efforts to make the ruling apply only to surface water are not founded on good law. The National Water Commission Report gave credence to the separation of ground and surface water. 3977. Pelcyger, Robert S. “The Winters Doctrine and the Greening of the Reservations.” Tulsa Law Review 40 (Fall 2004): 19–37. The creation of a reservation includes the water to fulfill the purpose of the reservation and this may also require that tribes have off-reservation rights for subsistence, but Winters rights do not carry a quantification of water. Winters is a powerful weapon for tribes.

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3980. Peterson, Mark R. “Northern Cheyenne Tribe v. Adsit: Are State Jurisdictional Disclaimers Still the Indian’s Assurance of Federal Jurisdiction?” Golden Gate University Law Review 13 (Spring 1983): 329–43. The Ninth Circuit Court in Adsit decided that the state disclaimers are an overriding factor in water issues, which was at odds with the Tenth Circuit Court of Appeals in Jicarilla. 3981. Pisani, Donald J. “The Dilemmas of Indian Water Policy.” In Fluid Arguments: Five Centuries of Western Water Conflict, edited by Char Miller, 78–94. Tucson: University of Arizona Press, 2001. Federal policy failed to turn most Indians into American farmers in part because irrigation projects often benefited non-Indians who gained ownership of Native lands as a result of the allotment policy. 3982. Pisani, Donald J. “Irrigation, Water Rights, and the Betrayal of Indian Allotment.” Environmental Review 10 (Fall 1986): 157–76. One way to prepare tribal Americans for irrigation farming was to employ them as wage laborers on reservation irrigation projects. Native Americans and their land allotments suffered as the tribes subsidized the reclamation boom. 3983. Price, Monroe E. and Weatherford, Gary D. “Indian Water Rights in Theory and Practice: Navajo Experience in the Colorado River Basin.” Law and Contemporary Problems 40 (Winter 1976): 97–131. Winters articulated the judicial legal theory of tribal reserved water rights. The reality has been that tribes, such as the Navajos, have been ignored in Colorado River discussions and agreements.

3978. Peregoy, Robert. “Jurisdictional Aspects of Indian Reserved Water Rights in Montana and on the Flathead Indian Reservation After Adsit.” American Indian Culture and Research Journal 24, no. 1 (1983): 43–68. The Northern Cheyenne brought action in the U.S. District Court in 1975. This case, which became a consolidated case, was dismissed, but the Ninth Circuit Court of Appeals ruled in Adsit that the McCarren Amendment is not applicable to reservation water adjudication. The Confederated Salish and Kootenai Tribes are hopeful that the Adsit ruling as a jurisdictional decision will prevent the state from filing a water suit to adjudicate tribal water rights.

3984. Raley, Bennett W. “Chaos in the Making: The Consequences of Failure to Integrate Federal Environmental Statutes with McCarren Amendment Water Adjudications.” Rocky Mountain Mineral Law Institute 41 (1995): 24-1–24-50. Since the McCarren amendment did not include environmental statutes, federal authorities have used environmental regulations from recent environmental laws to force landowners to alter their water use. Raley disapproves of this approach and supports the McCarren amendment as a good way to settle multijurisdictional water disputes.

3979. Peterson, Charles S. “Headgates and Conquest: The Limits of Irrigation on the Navajo Reservation, 1880–1950.” New Mexico Historical Review 68 (July 1993): 269–90. History of the Ganado Water Project and its connection to assimilation policy with a short discussion of land and water rights issues affecting the project.

3985. Ranquist, Harold A. “The Effect of Changes in Place and Nature of Use of Indian Rights to Water Reserved under the ‘Winters Doctrine.’” Natural Resource Lawyer 5 (January 1972): 34–41. Cochiti Pueblo entered into a development contract and agreed that part of its groundwater could be used for domestic purposes, but New Mexico countered that

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any change or use of water had to comply with state regulations. As tribes attempt to change the use of their water rights from agricultural to other purposes it is necessary to develop a body of applicable laws at the tribal, state, and federal levels. 3986. Ranquist, Harold A. “The Winters Doctrine and How It Grew: Federal Reservation of Rights to the Use of Water.” Brigham Young University Law Review 1975, no. 3 (1975): 639–724. Winters established the judicial rule that tribal reservation lands had prior rights to non-Indians to fulfill the purpose of their establishment. Subsequent federal uses outside reservations have expanded the doctrine to include military reservations, fisheries, wildlife uses, and minimum stream flow protection. As the demand for water increases, an administrative structure should address federal and tribal reserved water allocation. 3987. Reed, Scott W. “Should Rivers Having Running? Toward Extension of the Reserved Rights Doctrine to Include Minimum Stream Flows.” Idaho Law Review 12 (Spring 1976): 153–67. Rivers should have standing in court and be recognized just as tribal reserved water rights are recognized. 3988. Rey-Bear, Daniel I .S. J. “The Flathead Water Quality Standards Dispute: Legal Bases for Tribal Regulatory Authority over Non-Indian Reservation Lands.” American Indian Law Review 20, no. 1 (1995–1996): 151–224. The Supreme Court has faced limited regulatory reservation jurisdiction issues when tribes and nonIndian landholders find themselves at odds. The tribes have been successful in their defense of their regulatory control because of recent congressional legislation describing tribes as states in some areas of reservation regulation. 3989. Reynolds, Matthew. “Water Law: The Exercise of Federal Jurisdiction in Reserved Water Rights Litigation.” Land and Water Law Review 20, no. 2 (1985): 511–21. Discusses United States v. Adair that the Ninth Circuit Court of Appeals decided in 1983. The controversy centered on the proper forum for water adjudication in the Klamath Basin. 3990. Richardson, Frank K. “Interior’s View of Indian Water Laws.” In Indian Water 1985: Collected Essays, edited by Christine L. Miklas and Steven J. Shupe, 81–88. Oakland, CA: American Indian Resources Institute, 1986. Remarks of the Solicitor of the U.S. Department of the Interior at an Indian water conference in Scottsdale,

Arizona in 1984. The agency is “as vigorously as possible asserting the Indian water rights claims.” 3991. Rodgers, William H., Jr. “Treatment as Tribe, Treatment as State: The Penobscot Indians and the Clean Water Act.” Alabama Law Review 55 (Spring 2004): 815–44. The language of the Clean Water Act at first glance makes a strong case for tribal sovereignty, placing tribes on the same plane as “treatment as state” for the administration of reservation water ordinances and regulations. Maine did not follow this congressional intent and the federal courts’ refusal to protect the Penobscots and Passamaquoddies belies congressional intent. Maine considered tribal standing as a state a grave threat. Congress should deny state courts jurisdiction to hear reservation water cases to affirm congressional intent. 3992. Roncalio, Teno. “The Big Horns of a Dilemma.” In Indian Water in the New West, edited by Thomas R. McGuire, William B. Lord, and Mary G. Wallace, 209–14. Tucson: University of Arizona Press, 1993. Overview of Wyoming v. United States that the Supreme Court first decided in 1989. This case involved the water rights of the Wind River Reservation created in 1868, the Winters priority date for tribal reserve water rights. The case took another turn when the tribes decided to use part of the water to maintain the Wind River fishery. 3993. Ross, Anne E. “Water Rights: Aboriginal Water Use and Water Law in the Southwestern United States: Why the Reserved Rights Doctrine was Inappropriate.” American Indian Law Review 9, no. 1 (1981): 195–209. Tribal communities historically practiced prior appropriation and riparian water rights. Winters altered the quality and control of tribal water rights from the time of aboriginal land title water use. 3994. Royster, Judith V. “A Primer on Indian Water Rights: More Questions Than Answers.” Tulsa Law Journal 30 (Fall 1994): 61–104. The Winters court brought forth several themes: creating a reservation implied water right for those who lived there, the rights are to carry out the purpose of the reservation, and tribal rights are paramount to state rights, but they apply to surface waters and marketing these waters may be crucial to economic development. Despite the activity in other parts of the West, Oklahoma tribes have not been pushing water litigation. 3995. Rusinek, Walter. “Battle for the Verde River: Arizona’s Other River Controversy.” Journal of the Southwest 31 (Summer 1989): 223–48.

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History of a controversial water project that touches on water rights issues affecting the Salt River Reservation. A 1930 agreement allowed the project a right-of-way for a canal in exchange for acknowledging the tribe’s senior priority of water rights and a promise to deliver a specified amount of acre-feet to the reservation. 3996. Samelson, Kirk S. “Water Rights for Expanded Uses on Federal Reservations.” Denver Law Review 61, no. 1 (1983): 67–76. Examines the scope of federal reserved water rights, including tribal reserved water rights and the implications of United States v. New Mexico and United States v. City and County of Denver. 3997. Sande, Charles F. “Namen: Riparian Rights on Flathead Lake.” Public Land Law Review 1 (Spring 1980): 103–11. James Namen owned a marina on the south half of Flathead Lake and the Confederated Salish and Kootenai Tribes sued for trespass. The Ninth Circuit Court of Appeals decided that when Congress ordered the Flathead Reservation allotted, it intended to issue riparian rights with the patents confirming existing law, and more importantly, this is the court’s first examination of this issue. 3998. Sanders, Allen H. “The Northwest Power Act and Reserved Tribal Rights.” Washington Law Review 58 (April 1983): 357–86. Congress did not intend for the Pacific Northwest Power Planning and Conservation Act to affect tribal established rights to waters, including groundwater. The act implicitly includes fishery protection. Knowledge of these rights is paramount for planners designing future hydroelectric projects. 3999. Schapiro, Karen M. “An Argument for the Marketability of Indian Reserved Water Rights: Tapping the Untapped Reservoir.” Idaho Law Review 23, no. 2 (1986–1987): 277–91. As water in the western states becomes more scarce, tribal nations’ marketing of their reserved water rights becomes increasingly important. The nonintercourse acts provide some restrictions on tribes marketing water off the reservation and compensation for those who might be hurt due to a water transfer. Water marketing will assist tribes in economic development and help others off the reservation meet their water needs. 4000. Schwartz, William P. “State Disclaimers of Jurisdiction over Indians: A Bar to the McCarren Amendment?” Land and Water Law Review 18, no. 1 (1983): 175–99.

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The state of Montana wanted to adjudicate the Tongue River and Rosebud Creek and in Northern Cheyenne v. Adsit, the Ninth Circuit Court of Appeals ruled that Montana’s constitution had a disclaimer over any “jurisdiction over Indian lands.” These disclaimers are often the result of federal demands and create contradictions when the federal government wants the state to adjudicate tribal waters in state courts. 4001. Scott, William C. “The Continuing Saga of Pyramid Lake: Nevada v. United States.” Natural Resources Journal 24 (October 1984): 1067–82. In 1983, the Supreme Court ruled in Nevada v. United States “that res judicata prevents the Pyramid Lake Paiute from pursuing their claim for additional water.” This case presents several problems, including the restriction of the water necessary for the Paiute to develop their reservation. 4002. Seldin, Chris. “Interstate Marketing of Indian Water Rights: The Impact of the Commerce Clause.” California Law Review 87 (December 1999): 1545–80. Some states may attempt to stop tribal offreservation sales of their reserve water rights or try to regulate the purchaser. Past Supreme Court opinions would prevent states from regulating these sales. 4003. Shane, E. Brendan. “Water Rights and Gila River III: The Winters Doctrine Goes Underground.” University of Denver Water Law Review 4 (Spring 2001): 397–417. In a massive water suit, the Arizona Supreme Court declared in Gila III that federal reserved water rights included groundwater. The court ruled that federal reserved water rights holders possessed greater protection than state groundwater holders from adverse pumping activities. This decision may strengthen the political and economic water power of the tribes. 4004. Shane, E. Brendan. “Arizona Supreme Court Rejects Practicably Irrigable Acreage Standard for Allocating Indian Water Rights.” University of Denver Water Law Review 5 (Spring 2002): 500–503. This case began in 1974 and six issues have consumed the state court of Arizona since 1990. The fourth issue was the measure of tribal reserved water rights. The lower court noted that PIA had flaws that outweighed benefits because an agricultural measure is unfair and can vary from reservation to reservation. Instead of PIA, the court developed a six-part construction to determine the quantifiable water right for a reservation. 4005. Shargo, Alvin H. “Emerging Indian Water Rights: An Analysis of Recent Judicial and Legislative

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Developments.” Rocky Mountain Law Institute 26 (1980): 1105–56. Hardly anyone noticed Winters in its day but its importance over time is undeniable. The court made tribal reservations the senior water user based on the creation date of the reservation even if others were using the water before the Native Americans. Winters’ scope was expanded for the next seventy years until the courts began reducing its scope. 4006. Shepard, Harold S. “State Court Jurisdiction over Tribal Water Rights: A Call for Rational Thinking.” Journal of Environmental Law and Litigation 17 (Fall 2002): 343–88. Tribes are trying to counter any erosion of their sovereignty to manage water by asking the Department of the Interior to spend more on tribal water settlement suits. But federal courts have not been very supportive of tribal water initiatives. The federal government must be more supportive of tribal water rights in the context of state court litigation. 4007. Shimizu, Eileen. “Indian Water Rights: An Examination of the Current Status of the Department of Interior’s Guidelines and the Opposition to Them.” Federal Bar News & Journal 38 (March 1991): 88–91. State–tribal conflicts over water hinder the settlement of tribal reserved water rights. Questions of control and use of the water arise that complicate attempts to settle disputes. 4008. Shore, Jim and Jerry C. Straus. “The Seminole Water Rights Compact and the Seminole Indian Land Claims Settlement Act of 1987.” Journal of Land Use & Environmental Law 6 (Winter 1990): 1–24. The state of Florida and the Seminole Nation have a long history of distrust. Nonetheless both sides negotiated water and land claims settlement in 1987. 4009. Shupe, Steven J. “Identifying Practicably Irrigable Acreage (PIA).” In Indian Water 1985: Collected Essays, edited by Christine L. Miklas and Steven J. Shupe, 103–16. Oakland, CA: American Indian Resources Institute, 1986. The Supreme Court established PIA in 1963 as a test to quantify reservation reserved water rights used for agriculture. Shupe describes concepts and procedural steps that are involved in a PIA analysis. 4010. Shupe, Steven J. “Indian Tribes in the Water Marketing Arena.” American Indian Law Review 14, no. 2 (1989): 185–205. As water marketing continues, states have begun to ask about their role in controlling water. Some tribal leaders fear that marketing may lead to loss of water rights, while others see it as a short-term means

to raise revenue. Congress enacted three tribal water bills in 1987 and 1988 providing for specific tribes to sell water with Secretary of the Interior approval. 4011. Shupe, Steven J. “Water in Indian Country: From Paper Right to a Managed Resource.” University of Colorado Law Review 57 (Spring 1986): 561–92. Taking their reserved paper rights and transforming them into water projects has been difficult for tribes. Water litigation, regulatory jurisdiction including tribal water code enforcement, alternative management programs, and the importance of intergovernmental discussions all need to be addressed in making a paper right real. 4012. Shurts, John. Indian Reserved Water Rights: The Winters Doctrine in Its Social and Legal Context, 1880s to 1930s. Norman: University of Oklahoma Press, 2000. The case involved a north central tribal community that needed water, but they are nearly absent from the study. In their place are whites who favored Winters or supported riparian rights, but the real winner was the federal government whose engineers used the decision to build the federal reclamation projects in the west. 4013. Simmons, Paul S. “Klamath Project: Fossil or Phoenix?” Rocky Mountain Mineral Law Institute 48 (2002): 24C-1–24C-17. Discusses the history and current status of the Klamath basin water project. This issue involves tribal rights to water for fishing in the basin and irrigation projects. 4014. Simms, Richard. “National Water Policy in the Wake of United States v. New Mexico.” Natural Resources Journal 20 (January 1980): 1–16. Discusses federal reserved water rights after this case wherein the Supreme Court “limited federal reserved right claims to the Rio Mimbres drainage of the Gila National Forest to an amount of water necessary to satisfy the purposes for which the forests lands were withdrawn from the pubic domain.” 4015. Simon, Benjamin and Harvey Doerksen. “Conflicting Federal Roles in Indian Water Claims Negotiations.” In Indian Water in the New West, edited by Thomas R. McGuire, William B. Lord, and Mary G. Wallace, 27–34. Tucson: University of Arizona Press, 1993. The U.S. has multiple roles in the negotiation of tribal water rights that often limit the federal government’s efficiency. Since federal storage or transportation facilities are involved in the negotiations, successful negotiations require federal dollars. The internal battles between different federal agencies

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make it difficult for the U.S. to negotiate as a single entity. To take advantage of a potential water settlement, litigation is one mechanism that should not be forgotten. 4016. Skibine, Alex Tallchief. “The Chevron Doctrine in Federal Indian Law and the Agencies’ Duty to Interpret Legislation in Favor of Indians: Did the EPA Reconcile the Two in Interpreting the ‘Tribes as States’ Section of the Clean Water Act.” St. Thomas Law Review 11 (Fall 1998): 15–54. Congress began to pass or amend laws and include tribes in legislation such as the Clean Water Act where tribes were to have status like states for regulating reservation water quality. In Chevron, the court accepted federal agency officials’ decisions. When federal authorities make decisions for tribes, the question arises how are they to interpret the law and regulations liberally? 4017. Slagle, Al Logan. “Arizona v. California, et al.” American Indian Culture and Research Journal 24, no. 1 (1983): 87–90. Once this case was filed, the special water master permitted other tribes to join. Slagle discusses Part 8 that focuses on the water rights of specific tribes on the Arizona and California border, including the Colorado River Tribes, Fort Mojave, and others. The tribes received a poor decision from the Supreme Court. The members of the court should drink the water in this part of the nation to decide if they would change their vote. 4018. Sly, Peter W. “Federalism and Self-Determination: State Goals in Indian Water Rights Disputes.” In Indian Water in the New West, edited by Thomas R. McGuire, William B. Lord, and Mary G. Wallace, 71–78. Tucson: University of Arizona Press, 1993. State interest in tribal water conflicts focuses on the ease of adjudication and regulation, proprietary and fiscal protection, protecting state water laws, and preserving interstate interests. States attempt to balance state interests by reviewing reservation and state populations, landholding patterns, and state water institutions. 4019. Sly, Peter W. “Urban and Interstate Perspectives on Off-Reservation Tribal Water Leases.” Natural Resources & Environment 10 (Winter 1996): 13–46, 79. Marketing water is an important concept for tribes who have quantified their water rights. A federal statute permits leases to on-reservation water users, but the Supreme Court has not decided if this right permits water to leave the reservation. In some specific instances, as was the case with the Colorado

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River Basin tribes, Congress has authorized off reservation marketing. 4020. Smith, Karen L. “The Campaign for Water in Central Arizona, 1890–1903.” Arizona and the West 23 (Summer 1981): 127–48. The 1903 decision to fund a project in the Salt River Valley marked a shift in federal water policy away from an emphasis on reclaiming public lands in favor of more profitable projects. This shift was at the cost of Pima water rights. Although the Pimas’ needs helped attract Washington’s attention to water problems, and thus contributed to the passage of the 1902 National Reclamation Act, the legislation was neither intended to, nor had the effect of, meeting Indian water needs. 4021. Smith, Rodney T. “Water Rights Claims in Indian Country: From Legal Theory to Economic Reality.” In Property Rights and Indian Economies, edited by Terry L. Anderson, 167–94. Lanham, MD: Rowman and Littlefield, 1992. Involved parties are moving toward reliance on negotiated settlements of water claims as courts prove less able to allocate resources efficiently and make predictable judgments. Smith illustrates the superiority of negotiated settlements by contrasting a litigated claim by Wind River Reservation with a claims settlement involving the Shoshone–Bannock. 4022. Sondheim, Harry B. and John R. Alexander. “Federal Indian Water Rights: A Retrogression to QuasiRiparianism?” Southern California Law Review 34 (Fall 1960): 1–61. The use of the irrigable acres standard is not a sound basis for determining tribal water needs because it does not take into account future needs. The authors developed the experience test to demonstrate that tribal water needs might be growing at different rates than their land use. 4023. Spade, Eric F. “Indian Reserved Water Rights Doctrine and the Groundwater Question.” American Indian Law Review 19, no. 2 (1994): 403–41. The McCarren Amendment has diminished the influence of Winters since states can bring tribes into state courts to adjudicate water. Tribes can work to place their mark on state water policy, but the Big Horn case has added another dimension. Though examining surface rights, the case created uncertainty regarding tribal groundwater rights. This uncertainty may force all sides to settle. 4024. “Special Recent Developments: The Pyramid Lake Briefs.” American Indian Law Review 2 (Winter 1974): 129–68.

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The briefs filed on this important water case are reprinted. 4025. Stanton, David M. “Is There a Reserved Water Right for Wildlife on the Wind River Indian Reservation? A Critical Analysis of the Big Horn River General Adjudication.” South Dakota Law Review 35, no. 2 (1990): 326–40. When the Wind River Reservation was created in 1868, the treaty provided for the usual agricultural pursuits, but also included the wildlife concerns. The Wyoming Supreme Court erred in deciding that the Wind River people were entitled to only an amount of water for agricultural purposes, even though the water master created a reserved water use for wildlife. 4026. Startler, Norman H. and Kenneth G. Maxey. “Equity, Liability, and the Salt River Settlement.” In Indian Water in the New West, edited by Thomas R. McGuire, William B. Lord, and Mary G. Wallace, 125–45. Tucson: University of Arizona Press, 1993. Discusses the cost-analysis of the Salt River Pima–Maricopa negotiated settlement. The federal government employed value cost-analysis and legal liability to reduce federal compensation for the project. The final federal compensation became “a subjective and an objective calculation of the risk, liability, and equity parameters.” The compromises made between federal agencies points to the fact that there is not a compromise position on tribal water inside the federal government. 4027. Stone, Albert W. “A Status Report on Impliedly Reserved Federal Water Rights.” Public Land Law Review 1 (Spring 1980): 39–55. Critically examines President Carter’s June 1976 “Water Policy Statement” and the subsequent publication of the Comptroller General’s November 1976 “Report to Congress” that discussed the same subject. Stone discusses the questions that these two reports raised that urged federal support for the adjudication of federal and tribal water rights. 4028. Storey, Lee Herold. “Leasing Indian Water Off the Reservation: A Use Consistent with the Reservation’s Purpose.” California Law Review 76 (January 1988): 179–220. The key to tribal off-reservation water leasing is congressional intent to support tribal economic development. 4029. Strickland, Rennard. “American Indian Water Law Symposium.” Tulsa Law Journal 15 (Summer 1980): 699–719. A roundtable discussion of tribal rights by several water lawyers.

4030. Sudbury, Ryan. “When Good Streams Go Dry: United States v. Adair and the Unprincipled Elimination of a Federal Forum for Treaty Reserved Rights.” Public Land & Resources Law Review 25 (Spring 2004): 147–83. The terminated and restored Klamath tribe is a principle party in this suit because they have rights to the region’s fishery and maintaining the fishery requires a reserved water right. The Ninth Circuit Court did not follow the correct trial judge’s rulings and now the future of the Klamath Basin water is unpromising. 4031. Swan, William J. “The Salt River–Pima–Maricopa Settlement.” In Indian Water in the New West, edited by Thomas R. McGuire, William B. Lord, and Mary G. Wallace, 115–23. Tucson: University of Arizona Press, 1993. The 1988 Salt River settlement legislation is unique. First it was very complex; second, the act was designed to provide the tribes all the water they needed; and third, the negotiated settlement was intended to avoid disputes with non-Indians. This negotiated settlement opens the door to future Arizona settlements. 4032. Tarlock, A. Dan. “One River, Three Sovereigns: Indians and Interstate Water Rights.” Land and Water Law Review 22, no. 2 (1987): 631–71. Courts should cease limiting tribal reserved water rights and should negotiate fair deals with tribes. The Fort Peck and Colorado–Ute settlements provide hope, but the greatest concern is the cost in delivering water to tribes. Tarlock provides six guidelines for states and tribes to consider in their potential negotiations. 4033. Tatum, Melissa L. “Extending the Status Quo: Indian Law and the Supreme Court’s 1999–2000 Term.” Tulsa Law Journal 36 (Fall 1999): 195–216. No Indian cases were before the court, but two decisions, Rice v. Cayetano and Arizona v. California, were decided. The latter case involved water. Tribes should abandon traditional tribal water arguments and move another direction such as preclusion, but this can be dangerous to sovereignty. 4034. Taylor, Jeff and Duane Birdbear. “State Jurisdiction to Adjudicate Indian Reserved Water Rights.” Natural Resources Journal 18 (July 1978): 221–35. The McCarren Amendment and the Akin decision have put tribal water adjudication in state courts. Tribes may be able to file suits in federal court instead of the trustee filing suits on their behalf. Until key questions are answered, the success of tribal water suits will depend on how state courts view tribal cases.

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4035. Thorson, John E. “Resolving Conflicts through Intergovernmental Agreements: The Pros and Cons of Negotiated Settlements.” In Indian Water, 1985: Collected Essays, edited by Christine L. Miklas and Steven J. Shupe, 25–47. Oakland, CA: American Indian Resources Institute, 1986. Tribes have reason to be skeptical about intergovernmental negotiations but litigations shortcomings, including expense and conflict, have made negotiations more appealing. Thorson analyzes a recent water rights compact between Montana and the Fort Peck Tribes, as well as other tribal negotiations, and lists five important factors affecting outcomes: urgency, opportunity for mutual gain, uncertainty, personality, and cost. The Fort Peck–Montana Compact is deemed “a good agreement.” 4036. Thorson, John E., Sarah Britton, and Bonnie G. Colby eds. Tribal Water Rights: Essays in Contemporary Law, Policy, and Economics. Tucson: University of Arizona Press, 2006. Essays by various authors broken into sections on sovereign relations, quantification, settlement and management. They foresee continuing efforts to complete this settlement process, but this will no doubt be contentious at times. 4037. Tittman, Edward D. “The First Irrigation Lawsuit.” New Mexico Historical Review 2 (October 1927): 363–68. Summarizes an 1857 lawsuit regarding a dispute between Acoma and Laguna Pueblos over water rights. The lawyer for Acoma argued that the pueblo had inherited the Spanish rights granted to Zia pueblo, while Laguna’s lawyer argued that Zia had been abandoned, and thus the two communities had equal rights to the water. The court decided in favor of Acoma, but the dispute continued to fester. 4038. Titus, Jeffery A. “Indian Law.” Golden Gate University Law Review 12 (Spring 1982): 229–41. A significant case from the Ninth Circuit Court of Appeals was Colville Confederated Tribes v. Walton, where the court tried to balance tribal, state, and federal competing interests in water. It aimed to determine which reserved water rights are transferred when a non-Indian purchases reservation property, and it ruled “that the federal government should adjudicate” such conflicts. 4039. Toren, Peter. “The Adjudication of Indian Water Rights in State Courts.” University of San Francisco Law Review 19 (Fall 1984): 27–51. The Supreme Court shifted adjudication responsibilities to the state courts. There is a legal problem with this decision. Tribes and states each derive their water rights from different sources and state court lit-

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igation of tribal water rights will limit a tribe’s right and threaten its culture. Congress should enact comprehensive water guidelines to protect tribal water rights. 4040. Trelease, Frank J. “Federal Reserved Water Rights Since PLLRC.” Denver Law Journal 54, nos. 3–4 (1977): 473–92. Recounts the past history of the federal reserved water rights and writes “[a]t no time prior to 1955 did I hear a suggestion that the reserved rights doctrine was anything but a special quirk of Indian water law.” The idea was that since the federal government owned all the land it also owned the water. Also discusses changing views. 4041. Treuer, Margaret Seelye. “An Indian Right to Water Undiminished in Quality.” Hamline Law Review 7 (June 1984): 347–68. Previous court decisions focused on apportioning water based on the purposes for creating reservations. In general “reservations were established for the general purpose of providing a secure land base and the economic means for Indian people to sustain themselves . . . [and] the water rights of Indians would seem to include water of sufficient quality and quantity to fulfill this purpose.” 4042. Ullman, Carl. “Klamath Basin Water Conflict: An Orgy of Promises Mother Nature Won’t Let U.S. Keep.” Rocky Mountain Mineral Law Institute 48 (2002): 24A-1–24A-11. The Klamath Reclamation Project restricted water use in 2001 to protect endangered fish and tribal treaty fisheries. Non-Indian water users who lost their irrigation water blamed the tribe and the fish. To understand this current situation, Ullman discusses the Klamath treaties, the creation of the Klamath River Basin Compact, and subsequent federal statutes. 4043. Unrau, William E. “Indian Water Rights to the Middle Arkansas: The Case for the Kaws.” Kansas History 5 (Spring 1982): 52–69. Water rights are not just significant to tribes in arid regions, but also to tribes between the 95th and 100th meridians. Unrau argues in favor of the Kaw claim to the middle Arkansas River. 4044. Upite, Daina. “Resolving Reserved Water Rights in the Wake of San Carlos Apache Tribe.” Environmental Law 15 (Fall 1984): 181–200. The court “refined the principles it developed in Colorado River supporting dismissal of water adjudication suits from federal court” and returned the water suit to Arizona’s state court.

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4045. Uram, Charlotte and Mary J. Decker. “Jurisdiction over Water Quality on Native American Lands.” Journal of Natural Resources & Environmental Law 8, no. 1 (1992–93): 1–2. Congress passed the Federal Water Pollution Control Act and the Safe Drinking Water Act and amended these two laws in the late 1980s ordering that tribes be treated as states under these statutes. The authors discuss the potential jurisdictional disputes that may emerge between tribes and local governments over the administration of these laws. Working with the states and local governments may be the best approach for tribes. 4046. Veeder, William H. “Confiscation of Indian Winters Rights in the Upper Missouri River Basin.” South Dakota Law Review 21 (Spring 1976): 282–309. During the rush to develop the northern plains coal fields, the Bureau of Reclamation and the Army Corp of Engineers initiated contracts to sell Big Horn water to coal companies for slurry pipelines. This action is contrary to the government’s trust responsibility to tribes on the northern plains and a violation of their Winters rights. 4047. Veeder, William H. “Greed and Bigotry: Hallmark of American Indian Law.” American Indian Journal of the Institute for the Development of Indian Law 3 (December 1977): 2–15. Johnson v. McIntosh established the premises of greed and bigotry. The best examples are seen in twentieth century water development that took tribal water and used it for non-tribal projects. 4048. Veeder, William H. “Indian Prior and Paramount Rights vs. State Rights.” North Dakota Law Review 51 (Fall 1974): 107–36. There need to be answers pertaining to tribal or federal consent to state breaches of reservation authority and the scope of police power. As the states’ political power grows in the area of tribal water law, they will attempt to gain control of reservation water. 4049. Veeder, William H. “Indian Prior and Paramount Rights to the Use of Water.” Rocky Mountain Mineral Law Institute 16 (1971): 631–68. Unlike other water-use doctrines, tribal first and superior rights to water use are unique in the nation’s history because water use is tied to their futures. Tribes’ distinct status was defined in the Constitution and carries through in contemporary water issues based on the Winters decision placing tribes outside state control. 4050. Veeder, William H. Indian Water Rights in the Concluding Years of the Twentieth Century, CHAI Occa-

sional Papers Series no. 5. Chicago, IL: Newberry Library, 1982. Analyzes current legal conflicts over these rights with special attention to specific court cases and the recent National Water Resources Management Policy. Tribes can draw strength from a body of supportive case law. 4051. Veeder, William H. “Indian Water Rights in the Upper Missouri River Basin.” North Dakota Law Review 48 (Summer 1974): 617–37. Upper Missouri River tribes’ water rights were first recognized in the Blackfeet Treaty of 1855 that provided for specific protections for the tribes, including water, that were upheld in Winters and Conrad. The Upper Missouri River tribes were the leaders in determining water rights, but despite the broad defense of these rights, competing federal agencies have encroached upon them, including agencies such as the Bureau of Reclamation. 4052. Veeder, William H. “Water Rights in the Coal Fields of the Yellowstone River Basin.” Law and Contemporary Problems 40 (Winter 1976): 77–96. After passing piecemeal water development legislation for nearly a century, the energy crisis of the 1970s forced officials and energy companies to look at development of coal in Montana and Wyoming, but tribal reserved water rights were barriers. This was the beginning of the Northern Cheyenne and Crow water litigation, which tested the government’s obligation to protect tribal interests. 4053. Veeder, William H. “Water Rights: Life or Death for the American Indian.” Indian Historian 5, no. 2 (Summer 1972): 21. Veeder answers tribal water-related questions and takes part in a discussion at a convocation of scholars. 4054. Veeder, William H. “Winters Doctrine Rights—Keystone of National Programs for Western Land and Water Conservation and Utilization.” Montana Law Review 26 (Spring 1965): 149–72. The Supreme Court first applied a reserved right to reservation water in the 1908 Winters decision and in 1956, the Ninth Circuit Court of Appeals extended that reserved right doctrine to other federal lands, including lands within national parks and wildlife refuges. Winters is the foundation for the Nation’s water development and conservation programs. 4055. Vollmann, Tim. “The Endangered Species Act and Indian Water Rights.” Natural Resources & Environment 11 (Fall 1996): 39–43. Today, as tribes are regaining their water rights and using their waters, tribal leaders fear a new enemy,

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the Endangered Species Act. The act requires that water development projects must examine effects on endangered or threatened plants and animals, but “[a] careful examination of the requirements and procedures of the ESA demonstrates that the Act creates no legal mandate elevating other water resources development over the exercise of Indian water rights.” 4056. Walker, Jana L. and Susan M. Williams. “Indian Reserved Water Rights.” Natural Resources and Environment 5 (Spring 1991): 6–9. Conflicts over tribal water in water basins are based on several factors—tribal priority dates, the extent of tribal water rights, and tribal freedom to use water in accordance with their own water plans. These factors create uncertainties about whether tribal leaders will disrupt current water users. 4057. Wallace, Mary. “The Supreme Court and Indian Water Rights.” In American Indian Policy in the Twentieth Century, edited by Vine Deloria Jr., 197–220. Norman: University of Oklahoma Press, 1985. The Supreme Court recently has shifted from protection of federal reserved water rights to a greater emphasis on state water law rights, thus allowing states to adjudicate tribal rights. The court erred in San Carlos and broke from “a long tradition of leaving the tribes free from state jurisdiction.” A legislative history of the McCarran Amendment reveals that the court has no basis of support for doing so. Congress has intended to leave tribes free from such state interference. 4058. Weatherford, Gary D. and Gordon C. Jacoby. “Impact of Energy Development on the Law of the Colorado River.” Natural Resources Journal 15 (January 1975): 171–213. Overview of the past, present, and future of Southwestern energy development. Since tribes have reserved waters, energy developers will have to take tribal water rights into account when developing energy projects. 4059. Weinberg, Bill. “Water Wars: Navajo Nation Reasserts Rights to the Colorado River.” Native Americas 17 (Summer 2000): 16–19. Black Mesa once divided Hopi and Navajo and now that Peabody Coal is taking the water, both tribes have a common problem and foe. The company pays $3.5 million for 3,800 acre feet taken from the Navajo Aquifer. The Navajo gave up many of their rights to water in return for future promises, but now they are threatening to sue for water from the Colorado River and that threatens the Central Arizona Project.

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4060. Weitz, Mark A. “Congressmen John J. Rhodes and Representation: The Case of Native American Water Rights.” Western Legal History 12 (Winter/Spring 1999): 77–100. Arizona Representative John J. Rhodes played a central role in the water wars of that state and he favored the majority over the minority tribal water users when it came to water allocation. 4061. Weldon, John B., Jr. “Non-Indian Water Users’ Goals: More Is Better, All Is Best.” In Indian Water in the New West, edited by Thomas R. McGuire, William B. Lord, and Mary G. Wallace, 79–85. Tucson: University of Arizona Press, 1993. The Winters court upset the West’s prior appropriation doctrine, and in 1963 the court added practical irrigable acres as the standard for determining a tribal water right in Arizona v. California. This standard has changed since 1963, but despite change, once a tribal water right has been determined, non-Indian water users are notified. 4062. Welsh, Erin T. “South Florida Water Management District v. Miccosukee Tribe of Indians: Has the U.S. Supreme Court ‘Opened Up the Floodgates’ Federal Regulation of Water Diversion Facilities?” Seton Hall Law Review 36, no. 1 (2005): 289–326. The tribe and friends brought suit against the South Florida Water Management District for sending polluted water to another body of water in violation of the Clean Water Act. The Supreme Court ruled against the tribe using “meaningful distinct” to dismiss the case, but what does this mean? The discharge of polluted water from a point of source is nearly always a violation and in this case the court has rewritten federalism. 4063. Western States Water Council. Indian Water Rights in the West: A Study Prepared for the Western Governors’ Association by the Western States Water Council, May 1984. Descriptive study defining the available water in the West and the system that administers it. 4064. Wilkinson, Charles F. “The Future of Western Water Law and Policy.” In Indian Water 1985: Collected Essays, edited by Christine L. Miklas and Steven J. Shupe, 25–47. Oakland, CA: American Indian Resources Institute, 1986. Published remarks made at a Scottsdale, Arizona Indian water conference in 1984. To successfully secure their water rights, tribes must continue to educate the public about the “compelling historical, legal and moral bases” for their position. 4065. Wilkinson, Charles F. “Lessons and Directions.” In Indian Water in the New West, edited by Thomas R.

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McGuire, William B. Lord, and Mary G. Wallace, 212–26. Tucson: University of Arizona Press, 1993. As tribes plan for use of their water rights, they must keep in mind that new water projects cannot pay for the project. This is especially true now that people often have to pay for the water. The high cost has not stopped tribal officials from working with Congress to obtain federal support for their water rights. It is hoped that equity will favor tribal communities in the future. 4066. Wilkinson, Charles F. “Perspectives on Water and Energy in the American West and in Indian Country.” South Dakota Law Review 26 (Summer 1981): 393–404. The battle for western water and energy, often waged on tribal lands, has many dimensions. The obvious are acre-feet, quantification efforts, water for fly-fishing, and coal for power plants, but there is a more important aspect for tribal Americans—the connection that water has with their understanding of their place in the world. 4067. Williams, Susan. “Indian Winters Water Rights Administration: Averting New War.” Public Land Law Review 11 (1990): 53–80. Tribal governments must develop wide and exclusive common and statutory laws to control and regulate tribal water. The public’s interest must be carefully considered in the drafting of tribal water ordinances. 4068. Williams, Susan M. “The Winters Doctrine on Water Administration.” Rocky Mountain Mineral Law Institute 36 (1990): 24-1–24-48. Examines the history behind the tribes’ Winters water rights and also new areas for tribes to venture into, including on and off reservation transfers of their Winters rights so that the water might provide new opportunities for economic development. 4069. Williams, Susan M. and Raquel Montoya-Lewis. “Federal Indian Water Rights: Fundamental and New Developments in Federal Indian Law.” Native Americas 17 (Summer 2000): 20–27. In 1999, the Arizona Supreme Court ruled that reserved rights doctrine that stemmed from Winters extended to the groundwater. As tribes look to the future some are leasing their water rights. 4070. Williams, Wes., Jr. “Changing Federal Water Use for Federally Reserved Indian Water Rights: Wind River Indian Reservation.” U.C. Davis Law Review 27 (Winter 1994): 501–32. In 1988, the Wyoming Supreme Court declared the Wind River Reservation’s water right based on present and future agricultural use, but the tribes wanted

to convert their future agricultural water use for an immediate in-stream use to preserve the fishery of the Wind River. Neither the state engineer nor the courts would deliver the water. The Wyoming Supreme Court erred when making the decision prohibiting the tribe from converting their agricultural water use to an in-stream flow use. 4071. Wolfsong, Beth. “Tribal Jurisdiction over Water Quality.” In Tribal Water Rights: Essays in Contemporary Law, Policy, and Economics, edited by John E. Thorson, Sarah Britton, and Bonnie G. Colby, 35–45. Tucson: University of Arizona Press, 2006. Studies recent case law and legislative action relative to this topic and suggests ways for sovereigns to cooperate. Comanagement is important because different sovereigns share water ways, and this process must be done in respectful recognition of tribal sovereignty. 4072. Yardas, David. “Water Transfers, Paper Rights, and the Truckee–Carson Settlement.” In Indian Water in the New West, edited by Thomas R. McGuire, William B. Lord, and Mary G. Wallace, 195–205. Tucson: University of Arizona Press, 1993. The Truckee–Carson water diversion created environmental damage, and Nevada law decrees that appropriated water not used for five years is abandoned. When the Pyramid Lake tribe water rights were declared, the needs of the lake and other water sensitive locations were ignored. The Truckee– Carson water settlement is an attempt to correct these past wrongs in a non-painful manner. 4073. Young, Ronald T. “Interagency Conflicts of Interests: The Peril to Indian Water Rights,” Law and the Social Order, Arizona State University Law Journal 1972, no. 2 (1972): 313–28. The Departments of Interior and Justice have a multitude of patrons for whom they are entrusted with protecting water rights. Despite the government’s trust relationship with tribes, serious conflicts of interest have emerged between competing interests within each department that diminish tribal water rights when tribal water rights have not been distinguished from public water rights. 4074. Zah, Peterson. “Water: Key to Tribal Economic Development.” In Indian Water 1985: Collected Essays, edited by Christine L. Miklas and Steven J. Shupe, 75–79. Oakland, CA: American Indian Resources Institute, 1986. Navajo Tribal Chairman’s remarks to an Indian water conference in 1984. Water is vital to the tribe and non-Indians are attempting to limit Navajo access to it. The federal government should find ways to deliver on its trust obligations.

Chapter 42 Fishing, Whaling, Hunting, and Gathering

4075. Allen, Cain. “Replacing Salmon: Columbia River Indian Fishing Rights and the Geography of Fisheries Migration.” Oregon Historical Quarterly 104 (Summer 2003): 196–227. Federal efforts to mitigate the decline of salmon have been biased toward the lower river, thus contributing to the minimization of Native fishing rights on the upper Columbia. The Lower Columbia River Fisheries Development Program initiated in 1946 is a prime example of such federal bias. The damming of the Deschutes and John Day rivers did further harm to Native fishing.

4078. Anderson, Owen L. “Indians—Hunting and Fishing Rights—State Law Must Yield to Federal Treaty.” North Dakota Law Review 48 (Summer 1974): 729–37. People v. Jondreau was an early Michigan fishing rights case. The State Supreme Court decided that the Chippewa defendant was in a bay that was not Indian Country nor part of a reservation and that placed him under state authority even though he only caught four fish. This is a vague standard to apply in treaty– property rights case. 4079. Aschenbrenner, Peter J. “State Power and the Indian Treaty Right to Fish.” California Law Review 59 (March 1971): 485–524. Close to the surface of Indian treaty fishing rights are the issues of state equal footing, non-Indian rights, and congressional preemption of state regulations. States have no obligation to rearrange fishing activities for non-Indians, but the federal government has an obligation to tribal fishermen requiring a treaty-based solution to ensure economic security for the tribal fishermen.

4076. Anderson, Ivy. “Protecting the Salmon: An Implied Right of Habitat Protection in the Stevens Treaties, and Its Impact on the Columbia River Basin.” Vermont Law Review 24 (Fall 1999): 143–68. Implied in the mid-nineteenth century Stevens treaties that involved Pacific Northwest fisheries was the need to preserve stream habitat, and the tribes were also entitled to 50 percent of the hatchery fish to replace the wild salmon lost to habitat destruction. The U.S. has an obligation to prevent further basin habitat destruction. The Endangered Species Act and the Northwest Powers Act must be invoked, as well as working with tribes to protect the fishery.

4080. Baird, Lisa. “South Dakota v. Bourland: The Court Replaces the Cavalry.” Loyola of Los Angeles Law Review 28 (January 1995): 675–97. The Supreme Court ruled that the Cheyenne River Sioux Tribe did not have the authority to regulate hunting and fishing on federal lands within the reservation, a decision that threatened tribal sovereignty. Past courts have accepted tribal authority in civil cases, but the court demonstrated flawed reasoning in this case.

4077. Anderson, Michael R. “Law and the Protection of Cultural Communities: The Case of Native American Fishing Rights.” Law & Policy 9 (April 1987): 125–42. The coastal Salish, like other Northwest Coast tribal nations, signed treaties with Governor Stevens in which they retained their property right to the fish. As the twentieth century began, Washington State Department of Fisheries began to regulate the harvest and exclude tribal fishermen from their sites. Despite the Boldt decision, the Salish have not been able to rebuild their communities.

4081. Barsh, Russel L. “Backfire from Boldt: The Judicial Transformation of Coast Salish Proprietary Fisheries into a Commons.” Western Legal History 4 (Winter/Fall 1991): 85–102. Historically, Coast Salish families had territorial control over fishing sites that were inherited. As 431

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whites moved in, tribal fishermen adapted the outsiders’ fishing practices using nets. With the Boldt decision, the remaining traditional Coast Salish fishing practices were eliminated and pursue seiners have replaced the riparian tribal fishermen. 4082. Bean, Jerry L. “Off Reservation Hunting and Fishing Rights: Scales Tip in Favor of States and Sportsmen?” North Dakota Law Review 51 (Fall 1974): 11–30. Discusses case law governing off-reservation hunting and fishing by tribal members. The end result is often the eroding of tribal off-reservation property rights as conservation is used as a cause for awarding more resources to non-Indian sportsmen. Courts must cease turning authority over to states. 4083. Beck, Alma Soongi. “The Makah’s Decision to Reinstate Whaling: When Conservationists Clash with Native Americans over an Ancient Hunting Tradition.” Journal of Environmental Law and Litigation 11, no. 2 (1996): 359–412. Makah cultural, political, and economic values were tied to the whales and they have legal and cultural rights to hunt whales. In 1995, they decided to reinstate whaling by seeking five whales. That decision concerned conservation groups who feared that this decision would increase aboriginal whaling worldwide. 4084. Beck, Monte. “State v. Stasso: Off-Reservation Hunting Rights.” Montana Law Review 39 (Summer 1978): 323–30. The district court followed the tribal canons of construction and accepted the argument that Stasso was hunting on opened and unclaimed land in the national forest. 4085. Belsky, Martin H. “Indian Fishing Rights: A Lost Opportunity for Ecosystem Management.” Journal of Land Use & Environmental Law 12 (Fall 1996): 45–62. After Judge Boldt issued his first ruling, the second phase of the Northwest fishing litigation began. The Salmon and Steelhead Conservation and Enhancement Act set the stage for providing all parties the opportunity to apply an eco-system wide management plan. Neither the courts nor Congress took the opportunity to apply this act and their inaction threatens the region’s fisheries. 4086. Bentley, Shannon. “Indians’ Right to Fish: The Background, Impact, and Legacy of United States v. Washington.” American Indian Law Review 17, no. 1 (1992): 1–36. After the initial victory in Washington, conflicts continued, as long as the courts are involved, the conflicts will not dissipate.

4087. Berg, Laura. “Let Them Do as They Have Promised: A History of U.S. v. Oregon and Four Tribes Fight for Columbia River Salmon.” Hastings West-Northwest Journal of Environmental Law and Policy 3 (Fall 1995): 7–17. Discusses the Nez Percé, Umatilla, Warm Springs, and Yakama tribal nations’ century-long battle to continue their access to the Columbia River salmon based on treaties and federal and tribal laws. Also reviews the major court cases. 4088. Berk, Robert. “Indian Law—State Preempted from Enforcing Its Hunting and Fishing Regulations against Non-Indians on the Reservation—New Mexico v. Mescalero Apache Tribe.” Arizona State Law Journal 1984, no. 1 (1984): 191–210. In Mescalero, the Supreme Court prohibited state enforcement of hunting and fishing regulations over non-Indians on the reservation. This unanimous decision could become precedent and provides a warning to the states that when a dispute arises with a tribe, the state must demonstrate off-reservation dangers. 4089. Blumm, Michael C. and Brett M. Swift. “The Indian Treaty Piscary Profit and Habit Protection in the Pacific Northwest: A Property Rights Approach.” University of Colorado Law Review 69 (Spring 1998): 407–502. As salmon runs diminished since United States v. Boldt, the Supreme Court has inferred that the historic treaties included fisheries habitat protection. The courts may have to hear the habitat question again as the fisheries continue to suffer. 4090. Bowen, Veronica. “The Extent of Indian Regulatory Authority over Non-Indians: South Dakota v. Bourland.” Creighton Law Review 27 (April 1994): 605–59. After years of compromising on hunting rights, the Cheyenne River tribe refused to honor state hunting licenses on specific sections of the reservation including fee land. The state countered claiming the tribe had no authority over non-Indians hunting or fishing on the reservation. In a ruling that went against the tribe, “Bourland may be best understood as an attempt to strike an appropriate balance between interests of Indians and the interests of nonIndians who reside on tribal reservations.” 4091. Boxberger, Daniel L. To Fish in Common: The Ethnohistory of Lummi Indian Salmon Fishing. Lincoln: University of Nebraska, 1989. Based on the signing of their treaty with the clause “to fish in common,” the Lummi of Washington have been trying to get back access to the resource. 4092. Boxberger, Daniel L. “The Lummi Indians and the Canadian/American Pacific Salmon Treaty.” American Indian Quarterly 12 (Fall 1988): 299–311.

Fishing, Whaling, Hunting, and Gathering

A brief look at the potentially deleterious effects that a 1985 treaty between Canada and the U.S. can have for Lummi commercial salmon fishing, and the dilemma that occurs when the U.S. government must choose between its obligation to uphold tribal treaty rights and abide by conflicting international treaties. 4093. Boxberger, Daniel L. “The Lummi Island Reef Nets.” Wassaja/Indian Historian 13 (November 1980): 48–54. Since the Lummi did not have access to spawning streams, they caught salmon in the Puget Sound by simulating a reef with fishing nets. The development of the cannery industry destroyed the practice and the tribe outlawed reef nets in the 1930s. 4094. Bradford, William. “‘Save the Whales’ vs. Save the Makah: Finding Negotiated Solutions to Ethnodevelopmental Disputes in the New International Economic Order.” St. Thomas Law Review 13 (Fall 2000): 155–220. Discusses the emotional clash of cultural values in the Pacific Northwest where the Makah have a strong tie to the whale and believe they must hunt it. The federal courts became the forum for the clash between those who favored allowing Makah whaling and those opposed. 4095. Brandimore, Kathleen. “Indian Law—Treaty Fishing Rights—The Michigan Position.” Wayne Law Review 24 (March 1978): 1187–1204. Michigan arrested a Chippewa fisherman and criminally charged him for not having a state license, but the Bay Mills tribal member claimed offreservation treaty fishing rights. In the People v. Le Blanc, the court found for the state, but Brandimore argues that the state had no jurisdiction over an Indian exercising valid off-reservation rights. 4096. Brown, Jovanna J. “Treaty Rights: Twenty Years after the Boldt Decision.” Wicazo Sa Review 10 (Fall 1994): 1–16. Twenty years after Boldt, the tribal fishing nations of the Pacific Northwest have moved into the decision-making arena. Many of these fisheries-oriented organizations now exist because the Boldt decision recognized tribal rights to fish. 4097. Bruun, Rita. “The Boldt Decision: Legal Victory, Political Defeat.” Law & Policy Quarterly 4 (July 1982): 271–98. Government and private efforts continued to undo the Boldt decision. Organizations like the Interstate Congress for Equal Rights and Responsibilities have the backing of many opposed to Boldt and other litigation that has favored tribal communities. As the

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courts give the tribes their due, the opposition increases its pressure. 4098. Buchanan, Charles M. “Rights of the Puget Sound Indians to Game and Fish.” Washington Historical Quarterly 6 (April 1915): 109–18. Published address of the Tulalip Indian agent to the Washington legislative session. These Indians have always been self-supporting and they have been peaceful, yet they were forced to surrender too much in the 1855 treaty of Point Elliot. Competition with non-Indian fishing and “stringent and harsh” application of state game and fish laws have led these tribes into poverty. Indians have asserted their treaty-based fishing rights while the State has continued to assault those rights. Lawmakers should respect tribal fishing rites and make licensure requirements “more explicit and less ambiguous.” 4099. Burk, R. L. Stoney. “The Endangered Species Act: Should It Affect Indian Hunting and Fishing Rights.” Public Land Law Review 2 (Spring 1981): 123–37. The act exempted Native Americans from its provisions if they were taking animals for subsistence or ritual purposes, but that was changed in subsequent amendments and by 1973, no exemptions from the ESA existed for tribesmen living in the lower fortyeight states. Burk supports the conservation aspects of the Endangered Species Act and argues that tribal members need to follow the law. 4100. Burnett, Donald L., Jr. “Indian Hunting, Fishing and Trapping Rights: The Record and the Controversy.” Idaho Law Review 7 (Spring 1970): 49–75. Historical overview of hunting and fishing conflicts, including the “tension between Indian treaty rights protected by the ‘supremacy clause’ and state regulatory authority.” 4101. Busiahn, Thomas R. “Biological Impact of the Chippewa Off-Reservation Treaty Harvest, 1983–1989.” Northeast Indian Quarterly 8 (Summer 1990): 17–22. The Wisconsin Chippewa court cases changed the way that tribal people and non-tribal people in Wisconsin fished. Both groups are now co-managers and this is an inclusive process that requires everyone’s input. 4102. “California Supreme Court Survey, volume 1, Indian Law.” Pepperdine Law Review 9, no. 4 (1982): 1019–20. In re Wilson, the state high court ruled that the Pitt River Tribe’s occupancy rights (aboriginal title) were extinguished and so were their hunting and fishing rights.

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4103. Campbell, Carl. “Casting a Net into Turbulent Waters: Indian Salmon Fishing Rights in Canada and the United States.” Hastings West-Northwest Journal of Environmental Law and Policy 3 (Fall 1995): 101–26. Understanding tribal fishing rights in northwest U.S. and Canada is difficult. There have been high points, such as treaties rights, and low points, such as the building of Columbia River dams while ignoring Alaskan Natives’ rights to fish. 4104. Chaney, Ed. “The Last Salmon Ceremony: Implementing the Columbia River Fish and Wildlife Program.” Idaho Law Review 22, no. 3 (1985–1986): 561–608. Historical essay of the Confederated Umatilla Tribes that describes uses of Columbia River salmon. A developing trend is for tribal fisheries managers to work with federal and state agencies to maintain the runs. 4105. Chapin, Kristen. “Indian Fishing Activists in an Age of Controversy: The Case for an Individual Aboriginal Rights Defense.” Environmental Law 23, no. 3 (1993): 971–95. Proposes that tribal members employ aboriginal title as a defense of their right to fish and to push against federal and state encroachment following the ruling in United States v. Dann. Tribal members need to demonstrate a “continuous and exclusive exercise of the right since before treaty times.” 4106. Clark, William G. “Fishing in a Sea of Court Orders: Puget Sound Salmon Management 10 Years after the Boldt Decision.” North American Journal of Fisheries Management 5 (July 1985): 417–34. The court now supervises the fishery to maintain the runs and divide the fish taken evenly between twenty-one tribes and non-Indian fishermen. A Fisheries Advisory Board hears disputes and sometimes the parties settle the differences themselves. This system is successful. 4107. Clow, Richmond L. “Colorado Game Laws and the Dispossession of the Inherent Hunting Right of the White River and Uncompahgre Utes.” In Trusteeship in Change: Toward Tribal Autonomy in Resource Management, edited by Richmond L. Clow and Imre Sutton, 15–33. Boulder: University of Colorado Press, 2001. Removing the White River and Uncompahgre Utes from western Colorado to the Northern Ute Reservation in the Uintah Valley took them from their hunting grounds. Colorado game officials considered this move an elimination of the Utes’ hunting rights in Colorado. 4108. Clow, Richmond L. “‘A Flagrant Outrage’: James McLaughlin, Indian Country, and Illegal Bison Hunt-

ing.” North Dakota History 71, nos. 3 and 4 (2004): 2–18. Examines the 1834 Trade and Intercourse Act and Bates v. Clark ruling that Indian Country was reduced as tribes sold or ceded territory. White commercial hunting was still illegal on these reduced reservations, which still remained Indian Country. 4109. Coggins, George Cameron and William Modrcin. “Native American Indians and Federal Wildlife Law.” Stanford Law Review 31 (February 1979): 375–423. In past treaties, tribes retained for themselves hunting and fishing rights, but current wildlife depletion, coupled with states’ efforts to impose conservation issues, have created new dilemmas. Since treaties are federal instruments, the supremacy clause has preempted state regulations of tribal hunting and fishing activities, but some courts are moving toward greater state authority over tribal hunting and fishing as a conservation measure. 4110. Cohen, Fay G. Treaties on Trial: The Continuing Controversy over Northwest Indian Fishing Rights. Seattle: University of Washington Press, 1986. Follow-up to Uncommon Controversy. By 1965, the emotional fishing treaty rights conflict in the Pacific Northwest had reached a head. This study covers the period from 1970 to 1984, including the Boldt decision. This fostered hostilities and residents of Washington even circulated a petition to get an initiative on the ballot exempting the state from federal court orders pertaining to natural resources, but it did not pass. 4111. Collins, Cary C. “Subsistence and Survival: The Makah Indian Reservation, 1855–1933.” Pacific Northwest Quarterly 87 (Fall 1996): 180–93. Tribal members saw the value in adapting to the larger economy while maintaining their native culture. The federal government, however, offered little financial support for fishing. The tribe continued to hunt whales and seals, but federal regulations began to interfere with the pelagic seal hunting in the late 1800s. An unsuccessful lawsuit (United States v. The James G. Swan) argued that the regulations violated treaty rights. 4112. Colombi, Benedict J. “Dammed In Region Six: The Nez Percé Tribe, Agricultural Development, and the Inequality of Scale.” American Indian Quarterly 29 (Summer/Fall 2005): 560–89. The construction of main stem dams on the Columbia River and smaller dams on tributaries of the Columbia have created obstacles for salmon attempting to reach their upstream spawning beds. The Nez Percé have fished for salmon on the upper Columbia

Fishing, Whaling, Hunting, and Gathering

watershed, namely the Snake River since time immemorial. 4113. Combs, Mary J. “United States v. Washington: The Boldt Decision Reincarnated.” Environmental Law 29 (Fall 1999): 683–720. In 1998, the Ninth Court of Appeals restricted tribes’ shellfish harvests in United States v. Washington to 50 percent of the catch naturally found on lands, including private property, “but imposed time, place, and manner restrictions on tribal harvests.” The court made several errors by imposing restrictions and giving private property owners the rights to determine treaty restrictions. 4114. Constans, Judith W. “The Environmental Right to Habitat Protection: A Sohappy Solution.” Washington Law Review 61 (April 1986): 731–60. In United States v. Washington (Phase II), the Ninth Circuit Court of Appeals “denied declaratory relief on the question of whether Indian treaty fishing rights . . . extend protection of the salmon habitat.”The court included hatchery fish as part of the tribal catch because of habitat loss, but altered habitat protection to a reasonable test. 4115. Craig, Carol. “Where Have All the Salmon Gone?” Native Americas 12 (Fall 1995): 44–49. Despite favorable court decisions and participation on fisheries boards, tribes fishing the Columbia are finding that the number of fish are still declining and they want to change the current management strategies to one based on “gravel to gravel.” This is managing salmon throughout their life cycle. 4116. Czech, Brian. “Elk Hunting in the Shadow of Ward vs. Racehorse: Ten Bear and the Crow Tribe.” Journal of the West 39 (January 2000): 64–71. Analyzes Ward v. Racehorse and subsequent cases, most involving tribal hunting and fishing rights versus state’s rights. Included are Crow Tribe and Ten Bear v. Repsis and Petera; Brewer Oil; Maison; United States ex. rel. Tulee v. House; Makah Indian Tribe v. McCauly; Settler v. Lameer; and United States v. State of Washington. “Racehorse was indeed an aberrant decision, or, at best, a case of exceedingly narrow application.” 4117. Czech, Brian. “Ward v. Racehorse—Supreme Court as Obviator?” Journal of the West, 35 (July 1996): 61–69. The 1896 Supreme Court decision to side with Wyoming states’ rights over Bannock treaty rights struck against tribal sovereignty. Racehorse, who had been arrested for hunting off reservation in Wyoming, had little chance of success. The federal government had turned decidedly away from its obligation to uphold treaty rights in the late 1800s.

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4118. Delekta, Diane H. “‘State Regulation of Treaty Indians’ Hunting and Fishing Rights in Michigan.” Detroit College of Law Review (Winter 1980): 1097–1122. Michigan’s tribal hunting and fishing conflicts center on tribal people wanting to preserve the rights their ancestors reserved to off-reservation activities. The state wants to end those rights fearing loss of control over natural resources. Supreme Court decisions permit state authority for conservation purposes. After a decade of litigation, Michigan was denied any control over off-reservation tribal wildlife activities in Jondreau for Native Americans under the 1854 treaty, and limited authority by LeBlanc for tribesmen under the 1836 and 1855 treaties. 4119. Deloria, Vine, Jr. “The Lummi Indian Community: The Fishermen of the Pacific Northwest.” In American Indian Economic Development, edited by Sam Stanley, 87–158. The Hague: Mouton Publishers, 1978. This western Washington tribe struggled to maintain its treaty fishing rights but faced economic decline as the land base eroded, timber resources diminished, the fishing industry changed and salmon populations declined. During the 1960s, they developed a modern aquaculture economy in which their economic and community well-being were intertwined. Tribal economic development, therefore, should always be thought of as community development. 4120. DeVleming, John. “The Aboriginal Hunting Right: Is the Only Good One an Extinguished One?” Idaho Law Review 13 (Summer 1977); 403–14. The Idaho Supreme Court ruled in State v. Coffee that the U.S. Senate’s ratification of the 1855 Hellgate Treaty had extinguished the Kootenai Tribe’s aboriginal rights, including their hunting rights near Bonners Ferry, Idaho. The problem is that this group was not a party to the Hellgate Treaty. 4121. Diekemper, Tracy A. “Abrogating Treaty Rights Under the Dion Test: Upholding Traditional Notions That Indian Treaties Are the Supreme Law of the Land.” Journal of Environmental Law and Litigation 10, no. 2 (1995): 473–97. Despite the rhetoric claiming that tribal treaties are the supreme law of the land, political pressure and special interest groups have opened tribal treaties to attack. In Dion, the high court declared that Congress intended for the Eagle Protection Act to abrogate Dwight Dion’s right to kill and sell eagles from the reservation; the court did not address the Endangered Species Act as a law that abrogated tribal reservation hunting rights. The Dion test must be followed and treaties are the supreme law of the land.

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4122. Dixon, Susan N. Harris. New Mexico v. Mescalero Apache Tribe—Affirmed.” Denver Law Journal 61, no. 2 (1984): 407–12. Analysis of the Supreme Court’s ruling in Mescalero Apache Tribe in which the Court noted that the federal government preempted state hunting and fishing laws over non-residents because of the close working relationship between the tribe and the federal government. 4123. Doherty, Robert. Disputed Waters: Native Americans and the Great Lakes Fishery. Lexington: University of Kentucky Press, 1990. The Michigan Ottawa and Chippewa found themselves in a lengthy legal battle to exercise their fishing rights on open waters in U.S. v. Michigan. The establishment of a fishing right is a political process that the tribes had to complete as they negotiated this trial. 4124. Doremus, Christine A. “Jurisdiction over Adjudications Involving the Abenaki Indians of Vermont.” Vermont Law Review 10 (Fall 1985): 417–35. The Abenaki are not a recognized tribe, but continue to hunt and fish and ask for unlimited rights to pursue these activities in the state of Vermont. They staged a fish-in as the court action began against them and the state claimed jurisdiction over their activities. The state has no claim of authority over the Abenaki. 4125. Dupris, Joseph C., Kathleen S. Hill, and William H. Rodgers Jr. The Si’lailo Way: Indians, Salmon and Law on the Columbia River. Durham, NC: Carolina Academic Press, 2006. Account of Native efforts over almost 150 years to protect their inherent right to harvest salmon and protect the fish at Celilo Falls. Tribal views of the fisheries were eventually incorporated into law.

based on their treaty rights. Once gray whales were de-listed as endangered, the Makah pursued their cultural right to hunt them. There is a legal history of tribal peoples in the north claiming that the IWC’s aboriginal exception supercedes the Marine Mammal Protection Act. 4128. Eisenstadt, Eric. “Fish Out of Water: Setting a Single Standard for Allocation of Treaty Resources.” American Indian Law Review 17 (1992): 209–36. Potentially irrigable acres and 50 percent of the catch are two common standards used in water and fishery resource allocation. There is a fundamental difference between these two allocation standards. The reserved water PIA standard serves tribes better than the fifty-fifty split. It determines water rights on a tribal need. 4129. Esmay, Niki. “Indian Law-‘Great Nations, Like Great Men, Should Keep Their Word;’ But Do They?” Land and Water Law Review 22, no. 1 (1987): 443–51. In United States v. Dion (1986), the Supreme Court moved from the long tradition of protecting tribal treaty rights and found that Congress intended in the Bald Eagle Protection Act to abrogate tribal treaty rights—even though the law in question did not mention these rights. 4130. Fadden, Stephen. “Chippewa Fishing Season Passes Peacefully: Indian Fishing Rights in the Wake of the Voight Decision.” Northeast Indian Quarterly 3 (Summer 1986): 9–11. The Wisconsin walleye fishing season witnessed only a few threats and was more peaceful than the previous year. The Episcopal Church backed the tribal rights to fish, while Protect American Rights and Resources staged rallies against tribal fishing rights.

4126. Ebbin, Syma A. “Dividing the Waters: Cooperative Management and the Allocation of Pacific Salmon.” In The Tribes and the States: Geographies of Intergovernmental Interaction, edited by Brad A. Bays and Erin Hogan Fouberg, 159–80. Lanham, MD: Rowman and Littlefield, 2002. State–tribal cooperative management in Washington State “has promoted a better institutional fit between allocable mechanisms and the migratory salmon,” and a more equitable allocable process, but salmon populations are still in decline.

4131. Fadell, Gary. “People v. LeBlanc: Indian Treaty Fishing—The Best Is Yet to Come.” Detroit College of Law Review 1977 (Summer 1977): 383–400. States historically regulated tribal off-reservation fishing and hunting activities, but that changed in 1971 when Michigan authorities arrested A. B. LeBlanc, a Chippewa for fishing off the reservation for commercial purposes. This case ushered in new state–tribal hunting relations in Michigan that future courts would redefine, but Michigan obtained authority over tribal fishermen under the 1836 and 1855 treaties if necessary for conserving fish.

4127. Eichstadt, Richard Kirk. “‘Save the Whales’ vs. ‘Save the Makah’: The Makah and the Struggle for Native Whaling.” Animal Law 4 (1998): 145–71. The International Whaling Commission granted the Makah permission to take four whales per year

4132. Ferguson, Karen. “Indian Fishing Rights: Aftermath of the Fox Decision and the Year 2000.” American Indian Law Review 23, no. 1 (1998–99): 97–154. The 1979 Michigan district court ruling United States v. Michigan, called the Fox decision, reallo-

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cated the resource between tribal and non-tribal residents and led to violence. The best way to end the fisheries conflict is through state-sponsored education. 4133. Finnigan, Richard A. “Indian Treaty Analysis and Off-Reservation Fishing Rights: A Case Study.” Washington Law Review 51 (November 1975): 61–95. Examines the Boldt decision, which “appears to provide the best solution at this time to the problem of off-reservation Indian fishing.” It has made state–tribal cooperation possible. 4134. Fiorentino, Susan R. “Timpanogos Tribe v. Conway: Fishing For an Exception to State Sovereign Immunity in Natural Resource Regulation.” Villanova Environmental Law Journal 14, no. 2 (2003): 255–75. Utah requires all to obtain a state permit to hunt, but as a sovereign, the tribe issued its own licenses and sued the state. The district court and Tenth Circuit Court of Appeals ruled that the Eleventh Amendment did not bar the tribe from filing suit. If tribes cannot stop the states from pushing the conservation argument and suing tribes, tribal rights will remain in question. 4135. Fisher, Andrew H. “The 1932 Handshake Agreement: Yakama Indian Treaty Rights and Forest Service Policy in the Pacific Northwest.” Western Historical Quarterly (Summer 1997): 186–217. A decision by Columbia National Forest rangers set aside nearly three thousand acres of berry fields on public land for the exclusive use of the Yakama, whose subsistence and spiritual life was, to a significant degree, reliant upon huckleberries and other traditional foods. The agreement was a significant example of federal–tribal accommodation. Successful Yakama efforts at making and maintaining this agreement attest to the resiliency of their subsistence economy. The article also describes changes in the Yakama environment and economy, and discusses their signing of a treaty in 1855 ceding nearly 30,000 miles of territory, but upon which they reserved fishing, hunting, and gathering rights. 4136. Fisher, Andrew H. “Tangled Nets: Treaty Rights and Tribal Identities at Celilo Falls.” Oregon Historical Quarterly 105 (Summer 2004): 178–211. By upholding Native American fishing rights as tribal rights and dealing primarily with reservation leaders, courts contribute to tensions between federally recognized tribes and off-reservation Native communities living near the fisheries, and to conflicts between those Indians believing in tribal vs. individual rights to fishing sites. Treaty rights can “divide as well as unite Native people.”

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4137. “Fishing Regulations—Indians: Regulation of Treaty Indian Fishing.” Washington Law Review 43 (March 1968): 670–83. A divided Washington Supreme Court decided in 1967 in Department of Game v. The Puyallup Tribe, Inc. that treaty Indians have off-reservation fishing rights at their usual and accustomed places, “but such fishing is subject to state fishing laws reasonable and necessary to preserve the fishery.” The court upheld the validity of the 1854 Treaty of Medicine Creek. 4138. Fixico, Donald L. “Chippewa Fishing and Hunting Rights and the Voigt Decision.” In An Anthology of Western Great Lakes Indian History, edited by Donald L. Fixico, 481–519. Milwaukee: University of Wisconsin Press, 1988. Surveys litigation affecting Native fishing rights throughout history with particular focus on cases affecting Chippewa rights in Wisconsin, and also describes white vs. Indian hostilities over fishing during the 1980s. 4139. Fjetland, Conrad. A. “The Endangered Species Act and Indian Treaty Rights: A Fresh Look.” Tulane Environmental Law Journal 13 (Winter 1999): 45–70. The Endangered Species Act is a concern for many tribal members that fear it will infringe upon their hunting and fishing activities, but the law will only restrict or eliminate treaty rights to the specific species that are listed as endangered or threatened under the act. 4140. Folsom, R. D. “The Climate in Congress: Indians Face Period of Uncertainty.” American Indian Law Review 4, no. 2 (1976): 349–54. Congress threatens to review the Boldt decision to ascertain its impact on Northwest fisheries. Protecting tribal resources is also being discussed. 4141. Forsgaard, Karl. “Statutory Construction—Wildlife Protection versus Indian Treaty Hunting Rights.” Washington Law Review 57 (December 1981): 225–42. Despite claims that Dean Fryberg shot an eagle on the Tulalip Reservation for ceremonial purposes, the Ninth Circuit Court of Appeals ruled that the Eagle Protection Act had abrogated his treaty right to do so. The court applied the surrounding circumstance test that claims Congress intended to abrogate that treaty right. 4142. Fox, Ben E. “Indian Law.” Golden Gate University Law Review 10 (Spring 1980): 315–57. During this term of the Ninth Circuit Court of Appeals, the court ruled on five hunting and fishing cases that included the terminated Klamath and the Crow cases. The court “applied traditional principles

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of federal Indian law” in three cases and in another case applied “the doctrine of federal preemption” to eliminate a state–tribal conflict where the state threatened tribal sovereignty and, in the last did not follow any established precedent. 4143. Fox, Catherine. “Indian Law-Sovereignty’s Last Stand.” Land and Water Law Review 23, no. 2 (1988): 615–28. The Wind River tribes, after secretary approval, put a tribal hunting and fishing code in operation in 1984. Other Arapahos filed an injunction to stop the code from going into effect claiming that the Secretary of Interior lacked on-reservation regulatory authority. The Tenth Circuit Court of Appeals ruled that, based on the trust relationship, the Secretary did have such authority, but the court did not note any such authority as being based upon treaty language. 4144. Galligan, Thomas C., Jr. and Michael T. Reynavann. “Pacific Northwest Indian Treaty Fishing Rights.” University of Puget Sound Law Review 5 (Fall 1981): 99–129. Pacific Northwest tribal leaders reserved for themselves and their posterity a reserved right to fish “in common” with other citizens of the territory when signing the Stevens treaties. United States v. Washington, Phase I decided that tribes were entitled to 50 percent of the catch and Phase II decided that hatchery fish were included in this allocation, except when necessary for conservation, and that environmental issues were also part of preserving the fishery. 4145. Gartland, John C. “Sohappy v. Smith: Eights Years of Litigation over Indian Fishing Rights.” Oregon Law Review 56, no. 4 (1977): 680–701. As the fish runs in the Columbia River dropped, Oregon issued river-wide fishing bans, but the Native fishermen believed that their treaty rights were superior to Oregon’s closing rules and continued to fish. The court ruled that conservation practices do not protect treaty rights, treaties do not provide immunity from state regulations, and that the tribal members are entitled to a fair catch. The last point was the most crucial as the state and Native Americans continued to debate the meaning of a fair catch. 4146. Giudici, James C. “State Regulation of Indian Treaty Fishing Rights: Putting Puyallup III into Perspective.” Gonzaga Law Review 13 (Fall 1977): 140–89. In 1977, the Supreme Court in Puyallup III rejected the tribe’s claim to exclusive regulating control over the reservation steelhead fishery, reaffirming Puyallup I and its ruling of state power over tribal fisheries. Before treaty fishing rights are enforced, Puyallup III wrote, “the necessity test” must be ful-

filled and the Boldt allocation of fish among users is proper. 4147. Goffin, Glenn M. “Environmental Law—Bald Eagle Protection Act Abrogates Yankton Sioux Indians’ Treaty Rights to Hunt Eagles.” Suffolk University Law Review 21 (Fall 1987): 945–53. The Supreme Court determined that there was not an applicable treaty defense when U.S. conservation laws were in question. By denying that any treaty right existed to hunt eagles after the passage of the Bald Eagle Protection Act and the Endangered Species Act, the court decided that Congress extended federal authority onto the reservations. 4148. Goodman, Ed. “Protecting Habitat for Off-Reservation Tribal Hunting and Fishing Rights: Tribal Comanagement as a Reserved Right.” Environmental Law 30 (Spring 2000): 279–361. In the Great Lakes and Pacific Northwest, tribal nations ceded lands, but retained the right to hunt and fish on their former properties. Goodman examines the potential for tribal co-management with federal agencies of off-reservation resources to guarantee the availability of those resources maintaining their hunting and fishing rights. 4149. Gray, Janet Davis. “Fishing Vessel Association: Resolution of Indian Fishing Rights under Northwest Treaties.” Willamette Law Review 16 (Summer 1980): 931–44. Four cases were consolidated into Washington v. Washington State Commercial Passenger Fishing Vessel Association. The Supreme Court decided in 1979 two major questions—that treaties provided tribes the right to the harvest part of the native fish runs at their “usual and accustomed sites,” and that the Supremacy Clause prohibits the state from ignoring federal orders pertaining to the fishing controversy. 4150. Green, Robert D. “Treaties with Indians—Fishing Rights.” Washington Law Review and State Bar Journal 33 (Summer 1958): 131–34. Washington officials arrested several Puyallup fisherman for fishing on and off the reservation. In State v. Satiacum, the state Supreme Court divided leaving the question of Indian fishing “at their usual and accustomed places”unanswered. 4151. Greene, Bruce. “U.S. v. Michigan and Washington v. Fishing Vessel Association: A Comparative Review.” American Indian Journal of the Institute for the Development of Indian Law 5 (August 1979): 2–7. The U.S. filed the first suit on behalf of the Bay Mills tribal community in 1973 and the district court

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ruled the strong presence of the tribal and federal governments in the Great Lakes fishery preempted Michigan’s interests. The second case was a Supreme Court review of specific district court orders implementing the Boldt decision. Both cases limited state authority over tribal fisheries. 4152. Haensly, Thomas F. “Equitable Apportionment of Intertribal Shares of Anadromous Fish.” Stanford Environmental Law Journal 8 (1989): 174–99. A dispute resolution mechanism is needed among Pacific salmon fishermen from different tribes. A potential solution is to apply the doctrine of equitable apportionment. 4153. Halm, Lindsay. “Putting Flesh on the Bones of United States v. Winans: Private Party Liability under Treaties that Reserve Actual Fish for the Tribal Taking.” Washington Law Review 79 (November 2004): 1181–1208. Commercial fishermen have received monetary damages from outsiders who interfere with their vocation and livelihood, but courts have not granted this same benefit to tribal fishermen. Tribal fishermen should receive monetary damages when private projects diminish the treaty fishery and the centuryold Winans should be upheld. 4154. Hawley, Brian A. “Treaty Interpretation— Off-Reservation Rights—Chippewa Indians Retain No Off-Reservation Right to Harvest Wild Rice without Minnesota License.” Hamline Law Review 4 (January 1981): 373–89. Two Chippewas gathering wild rice in August 1972 were fined for not having a state license. They argued they did not have to obtain a license based on the 1795 Greeneville and 1825 Prairie du Chien treaties. The Minnesota Supreme Court ruled that the Chippewa did not still possess off-reservation treatybased gathering rights. 4155. Hobbs, Charles A. “Indian Hunting and Fishing Rights.” George Washington Law Review 32 (March 1964): 504–32, 37. Tribes may hunt and fish regardless of property ownership because these rights emerge once a reservation is created. Private persons cannot prevent them from exercising these rights and if taken away by the federal government, the tribes must be compensated. 4156. Hobbs, Charles A. “Indian Hunting and Fishing Rights II.” George Washington Law Review 37 (July 1969): 1251–73. Updates his previous account of tribal hunting and fishing rights after the Menominee and Puyallup cases signaled the beginning of extensive tribal hunt-

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ing and fishing cases. Both cases answered and raised questions, and either more litigation or greater cooperation will be necessary to reach settlements. 4157. Holt. Barry H. “Can Indians Hunt in National Parks? Determinable Indian Treaty Rights and United States v. Hicks.” Environmental Law 16 (Winter 1986): 207–54. The exercise of tribal treaty rights may conflict with aesthetic purposes of national parks, but treaty rights are paramount. In 1983, Quinault members Gregory D. Hicks and Stevens J. Shale killed several elk in Olympic National Park claiming 1855 treaty rights and the court dismissed their case. Representative Al Swift of Washington introduced legislation in Congress to terminate any tribal hunting rights in the park and a motion for a retrial was granted. The government’s arguments were accepted and the men were found guilty and entered into a plea bargain. This case did not develop any property right arguments. 4158. Hornestein, David T. “Indian Fishing Rights Return to Spawn: Toward Environmental Protection of Treaty Fisheries.” Oregon Law Review 61, no. 1 (1982): 93–122. Pacific Northwest tribes signed treaties in the 1850s to protect their access to fisheries. As the region’s streams and rivers have degraded, the courts have been issuing a narrow interpretation for an environmental standard. Hornestein examines legal ways that this standard can be widened to honor the tribes’ treaty rights to fish. 4159. “Hunting and Fishing Rights.” American Indian Law Review 1 (Winter 1973): 79–87. A short discussion of Leech Lake Band of the Chippewa Indians v. Herbst, where the federal district court ruled that the Minnesota could not enforce state hunting and fishing laws on off-reservation tribal members exercising their 1855 treaty rights. 4160. “Indian Law—State Regulation—Hunting and Fishing Rights—In Leech Lake Band of the Chippewa Indians v. Herbst.” New York Law Forum 18 (Fall 1972): 442–50. The Minnesota federal district court decided that tribal members still retained their rights to hunt, fish, and gather rice on public lands that were ceded in the 1855 treaty. 4161. “Indian Treaties, Indian Fish.” American Indian Journal of the Institute for the Development of Indian Law 5 (April 1979): 2–10. The Pacific Northwest fishing controversies, which originated with the Stevens treaties, have gained momentum and emotion. The state, tribes,

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and federal government have responsibilities to follow the treaties and protect the tribal share of the resource. 4162. The Institute for Natural Progress. “In Usual and Accustomed Places: Contemporary American Indian Fishing Rights Struggles.” In The State of Native America: Genocide, Colonization, and Resistance. edited by M. Annette Jaimes, 217–39 Boston, MA: South End Press, 1992. The evolution of bilateral solutions to fishing rights conflicts in Washington State is a positive development that provides a model for remedying the crisis in Wisconsin. Tribes in these regions have a long history of sharing with non-Indians and thus are willing to do so in regards to fishing. Boldt and Sohappy are analyzed in depth. 4163. Isenberg, Andrew. “Toward a Policy of Destruction: Buffaloes, Law, and the Market, 1803–83.” Great Plains Quarterly 12 (Fall 1992): 227–41. The U.S. government intentionally sought to destroy the bison to control Plains tribes. Not all agents and policy-makers agreed, but many saw the bison’s decline as a useful Indian policy tool and refused to take action to limit hide hunting. 4164. Isherwood, James H., III. “Indian Fishing Rights in the Pacific Northwest: Impact of the Fishery Conservation and Management Act of 1976.” Environmental Law 8 (Fall 1977): 101–30. This law created an extensive fisheries ocean management area to bring anadromous fisheries under conservation practices. The northwest tribal fisheries council created a management plan to reduce tribal ocean fishing that would benefit tribal fishermen working the fisheries along the coast and the interior placing them outside the law’s extensive ocean boundaries. 4165. James, Paul F. “United States v. Washington: Implied Treaty Rights to Continue Fishing.” Willamette Law Review 18 (Fall 1982): 659–72. Boldt II ruled that tribes can take fish from Washington State waters, the state must protect that right by reducing further degradation of the fish habitat so as to not deprive the Native Americans of their vocation, and hatchery fish will be calculated as part of the tribes’ allocation. 4166. Johnsen, D. Bruce. “Customary Law, Scientific Knowledge, and Fisheries Management among Northwest Coast Tribes.” New York University Environmental Law Journal 10, no. 1 (2001): 1–69. Encouraging stable economic and cultural institutions to invest in fishery stock is a crucial management strategy. Under this system, the salmon fishery

would become private and that would aid in tribal fishery claims settlements, and if the fishery were privatized, that would end commercial fishing and selling stream rights to the highest bidder. This would also generate productivity and end the chaos of ocean fishing. 4167. Johnson, Dana. “Native American Treaty Rights to Scarce Natural Resources.” UCLA Law Review 43 (December 1995): 547–85. The Supreme Court in Fishing Vessel “introduced the Moderate Living Doctrine, which places a limit on the tribal [fish] allocation [in the Northwest] by providing that the tribal share of a treaty-secured resource may be reduced from a presumptive 50 percent ‘if tribal needs may be satisfied by a lesser amount.’” This hurts tribal fisherman, but has become Indian law despite its anti-Indian bias. 4168. Johnson, James T. “Treaty Fishing Rights and Indian Participation in the International Fisheries Management.” Denver University Law Review 77, no. 2 (1999): 403–24. Tribal communities of the Pacific Northwest require salmon if they are to survive and the 1850s Stevens’s treaties ensured that tribal participation would be required even in international fisheries discussions. Supreme Court decisions from 1905 through 1979 reaffirmed this right. Boldt’s famous 1974 decision also insured that tribal members would participate in salmon “mitigation and conservation.” 4169. Johnson, Ralph W. “The States versus Indian OffReservation Fishing: A United States Supreme Court Error.” Washington Law Review 47, no. 2 (1972): 207–36. Indians had reluctantly accepted state authority over fishing due to the high cost of litigation and loss of fishing equipment, but the Supreme Court in 1968 in Puyallup Tribe v. Department of Game reiterated the mistake of upholding off-reservation fishing at usual and accustomed places and limited state control to necessary conservation. This court must create some standards that can be followed. 4170. Jones, Willis B., II. “Fishing Rights on the Crow Reservation.” Montana Law Review 37 (Winter 1976): 276–78. In 1973, the Crow tribal council passed an ordinance prohibiting non-Indians from fishing on the Big Horn River. The tribe arrested James Finch at a Montana fishing access site setting the stage for United States v. Finch. The federal district court ruled that the Crow Nation did not own the riverbed and could not prohibit non-Indians from fishing. 4171. Keller, Robert H. “America’s Native Sweet: Chippewa Treaties and the Right to Harvest Maple

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Sugar.” American Indian Quarterly 13 (Spring 1989): 117–35. Although numerous treaties, beginning in 1817, have reserved Chippewa rights to harvest maple sugar, neither the federal government nor tribal governments have acted to protect those rights. This resource right is equivalent to tribal fishing or wild rice gathering rights and the treaties should be interpreted as Indians understood them. Chippewas should vigorously pursue this particular right. 4172. Koslosky, John Gregory. “New Mexico v. Mescalero Apache Tribe: Dueling Sovereigns—When State and Tribe Clash.” Ohio Northern University Law Review 11, no. 2 (1984): 439–48. The battle over the tribe’s authority to regulate non-Indian sportsmen reached a climax in 1977 when the New Mexico game officials began arresting non-members for violating state game laws, but not tribal laws on the reservation. The Supreme Court decided that the state had no authority to enforce state game laws on the reservation. 4173. Krosgseng, Kari. “Minnesota v. Mille Lac Band of Chippewa Indians.” Ecology Law Quarterly 27, no. 3 (2000–2001): 771–97. In a time of scarce resources, more conflicts arise between states and tribes. In 1999, the Supreme Court decided in Minnesota v. Mille Lac Band of Chippewa Indians that treaty rights permit tribal members to use spears and nets to take fish in the Mille Lac region. This lengthy process of bringing all the parties to a compromise could be avoided if a federal process for treaty mediation was in place. 4174. Kurtz, Rick S. “Commercial Salmon Operations in the Glacier Bay Region: An Industry in Microcosm.” Journal of the West 36 (April 1997): 52–58. A portion of the article is devoted to the negative effects of the growing commercial salmon industry on Tlingit fishing rights and practices. 4175. Landau, Jack L. “Empty Victories: Indian Treaty Fishing Rights in the Pacific Northeast.” Environmental Law 10 (Winter 1980): 413–56. Three themes lay the foundation for tribal fishing rights conflicts: stream access, state regulation, and dam construction. Collectively they diminish the fish population or deny tribes access to their treaty fishing right. Even after Unites States v. Washington, the battle continues, but tribes should have the right to fish unless Congress alters that right. 4176. Laurence, Robert. “The Bald Eagle, the Florida Panther and the Nation’s Word: An Essay on the ‘Quiet’ Abrogation of Indian Treaties and the Proper Read-

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ing of United States v. Dion.” Journal of Land Use and Environmental Law 4 (Summer 1994): 1–21. The courts “quietly” diminished tribal treaty rights in these two hunting cases that involved endangered species. Since there is ample treaty language, and these hunters were members of treaty tribes, both Congress and the courts should have been careful. 4177. Lewis, O. Yale, III. “Treaty Fishing Rights: A Habitat Right as Part of the Trinity of Rights Implied by the Fishing Clause of the Stevens Treaties.” American Indian Law Review 27, no. 1 (2002–2003): 281–311. The treaty should be understood to guarantee a trinity of rights: “a right of access, a right of equitable apportionment, and a habitat right.”Appeals courts have not ruled on whether the third right is implied in the treaty. If this right is acknowledged, tribes have more power to make Washington State take measures to protect fish habitat. Minus this ability, fish populations will suffer and the other two rights in the trinity will be rendered meaningless. 4178. Lombardi, Anne-Marie. “‘Moral Obligations of the Highest Responsibility and Trust:’ An Analysis of the Federal Trust Responsibility in Parravano v. Babbitt.” Public Land & Resource Law Review 18 (1997): 213–26. The Fishery Conservation and Management Act of 1976 established regional fishery councils to address over-fishing and it lists federal responsibilities for protecting tribal fisheries. The court upheld the actions of the Secretaries of Commerce and Interior to exercise the federal trust responsibility necessary to protect tribal fishing of the Klamath River salmon. 4179. McLoone, John P. “Indian Hunting and Fishing Rights.” Arizona Law Review 10 (Winter 1968): 725–39. The Supreme Court in Puyallup Tribe v. Department of Game ruled in favor of the tribe. It used the test of “reasonable and necessary” protecting the treaty rights of the Native Americans while letting the state continue to implement conservation laws and plans in off-reservation fisheries. 4180. Mead, Kim and Denise Toussaint. Developing a Management Plan for Crow Tribal Wildlife Resources, A Report to the Crow Tribe. Harvard Project on American Indian Economic Development, John F. Kennedy School of Government, Cambridge, MA: Harvard University, May 1987. The White Mountain Apache have merged human and natural resources into well-operated tribal fish and game departments that permit tribes to assert tribal sovereignty. The Crows, however, will face greater difficulties including jurisdictional conflicts with the state of Montana.

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4181. Mentor, Joseph P., Jr. “Fishing Rights: Indian Fishing Rights and Congress: The Salmon and Steelhead Conservation and Enhancement Act of 1980.” American Indian Law Review 9, no. 1 (1981): 121–34. The 1980 Steelhead Conservation and Enhancement Act was designed to protect the species from over fishing. This legislation has increased tensions between tribal, sport, and commercial fishing companies and still leaves an opening to threaten tribal treaty fishing rights. 4182. Meyers, Gary D. “United States v. Washington (Phase II) Revisited: Establishing an Environmental Servitude Protecting Treaty Fishing Rights.” Oregon Law Review 67, no. 4 (1988): 771–97. Phase I determined whether tribal members were entitled to a portion of the fish being taken in the Pacific Northwest based on the Stevens treaties. Phase II involved whether hatchery fish were included in their rights and the protection of fish habitats from environmental destruction. The Ninth Circuit Court of Appeals included the hatchery fish and required the state to protect the environment to implement treaty rights. 4183. Miller, Bruce G. “The Press, the Boldt Decision, and Indian–White Relations.” American Indian Culture and Research Journal 17, no. 2 (1993): 75–97. Local newspaper coverage of Indian affairs in the Skagit Valley in Washington State had a harmful affect on Native communities during times of intense conflict over access to salmon, such as occurred after the Boldt decision. Rather than focusing on Indian life realistically, the papers supported non-Indian interests and presented Native peoples negatively and only within a context of conflict. 4184. Miller, Jay. “The Shell(Fish) Game: Rhetoric, Images, and (Dis)Illusions in Federal Court.” American Indian Culture and Research Journal 23, no. 4 (1999): 159–73. First-hand narrative and analytical account of a 1994 sub-proceeding (89-3) of United States v. Washington regarding tribal rights to shellfish that was decided on issues of equity rather than treaty rights alone. 4185. Miller, Robert J. “Exercising Cultural SelfDetermination: The Makah Indian Tribe Goes Whaling.” American Indian Law Review 25, no. 2 (2000–2001): 165–273. Detailed account of the historic and enduring cultural importance of whaling to the Makah and the controversy surrounding their recent efforts to renew that tradition. The tribe proved successful in its struggle and serve as a positive example for other communities. Tribal cultural rights are important as long

as those rights do not cause “unreasonable harm to majoritarian societal interests.” The federal government must actively support such rights. Tribes must first work, as have the Makah, to preserve their cultural rights and practices internally. 4186. Miller, Robert J. “Indian Hunting and Fishing Rights.” Environmental Law 21, no. 3 (1991): 1291–1300. Describes tribal hunting and fishing rights cases that passed through the Ninth Circuit Court. Fishing rights “are fairly defined and have been extensively litigated in the Supreme Court by seven different cases all arising in the Pacific Northwest,” but tribal hunting rights are less defined. 4187. Miller, Robert J. “Speaking with Forked Tongues: Indian Treaties, Salmon, and the Endangered Species Act.” Oregon Law Review 70 (Fall 1991): 543–84. The Endangered Species Act’s listing of salmon might run counter to tribal fishing rights in the Pacific Northwest. This is called “quiet abrogation.” Miller suggests alternative methods for managing the salmon as an endangered species and protecting treaty rights. 4188. Miller, Robert J. “Tribal Cultural Self-Determination and the Makah Whaling Culture.” In Sovereignty Matters: Locations of Contestation and Possibility in Indigenous Struggles for Self-Determination, edited by Joanne Barker, 123–51. Lincoln: University of Nebraska Press, 2005. Restates arguments made in a previous article, and updates that work by discussing recent Ninth Circuit Court decisions. Cultural self-determination is crucial to sovereignty as exemplified by the Makah. 4189. Monson, Peter C. “United States v. Washington (Phase II): The Indian Fishing Conflict Moves Upstream.” Environmental Law 12 (Winter 1982): 469–503. The issues were tribal rights to hatchery fish and the treaty rights to fish habitat protection. Judge Orrick, replacing Boldt, ruled in the tribes’ favor on both issues. 4190. Morisett, Mason. “Off-Reservation and On-Reservation Fishing Rights.” In Seminar on Indian Natural Resource Law and Finance, edited by American Indian Lawyer Training Program, 249–79. Oakland, CA: American Indian Lawyer Training Program, 1980. Explores the historical loss and reinstatement of tribal on and off reservation fisheries; the latter are reserved by aboriginal rights. The Puyallup and United States v. Washington decisions established the contemporary era for tribal off-reservation rights. States are limited in regulating tribal fishing for conservation purposes.

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4191. Nugent, Ann. The History of Lummi Fishing Rights. Bellingham, WA: Lummi Communications, 1979. Brief chronological history of the Point Elliot Treaty 1855 and the decline of Lummi fishing rights from 1890 to 1974. 4192. Nye, Bradley I. “Where Do the Buffalo Roam? Determining the Scope of American Indian Off-Reservation Hunting Rights in the Pacific Northwest.” Washington Law Review 67 (January 1992): 175–94. Tribal leaders signed treaties in the Pacific Northwest between 1853 and 1871 that reserved off-reservation hunting rights through phrases such as “open and unclaimed,” but courts often follow legal definitions of the land rather than considering their meaning to tribal hunters. Courts should employ “dicta of occupation” as the test for lands upon which tribal hunters still have hunting rights. 4193. Oberly, James. “Decision on Duck Creek: Two Green Bay Reservations and Their Boundaries, 1816– 1996.” American Indian Culture and Research Journal 24, no. 3 (2000): 39–76. A court dispute between Oneida net fishermen and the state of Wisconsin became a contest over the legal demarcation of the boundaries of the Oneida Indian reservation. The case represented Wisconsin’s efforts to limit Native hunting and fishing rights, especially off-reservation, and occurred during the 1990s, a decade when the state and tribes were involved in a larger struggle over the extent of tribal sovereignty. 4194. Olson, Mary B. “The Legal Road to Economic Development: Fishing Rights in Western Washington.” In Public Policy Impacts on American Indian Economic Development, edited by C. Matthew Snipp, 77–112. Albuquerque: Native American Studies Institute for Native American Development, University of New Mexico, 1988. Discusses the factors explaining why the federal courts have fashioned remedies favorable to the economic development of tribal fishing. Tribes have certain characteristics that aid them in using the courts in this manner. Tribes are in the position to see that judicial decisions translate into social reform, but they must stay vigilant. 4195. Ott, Brian Richard. “Indian Fishing Rights in the Pacific Northwest: The Need for Federal Intervention.” Boston College Environmental Affairs Law Review 14, no. 2 (1987): 313–43. The Pacific Northwest fishing conflicts became emotional legal battles within states, especially Washington. The state sought to control both the fishery within its borders and tribal fishermen seeking to preserve their off-reservation treaty rights to fish. In-

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stead of the costly litigation, federal intervention is needed to preserve tribal treaty rights to the fishery. 4196. Ovsak, Catherine M. “Reaffirming the Guarantee: Indian Treaty Rights to Hunt and Fish Off-Reservation in Minnesota.” William Mitchell Law Review 20 (Fall 1994): 1177–1212. The Mille Lac Band of Chippewa and the state of Minnesota went to court to determine if the tribe ceded off-reservation hunting rights in the 1837 treaty. The court ruled that the Chippewa did not do so, nor were these rights limited to specific resources. 4197. Parman, Donald L. “Inconstant Advocacy: The Erosion of Indian Fishing Rights in the Pacific Northwest, 1933–1956.” Pacific Historical Review 53 (May 1984): 163–89. Tribal efforts to adjust to new regulations specified in Washington State’s Initiative 77 in 1935 led to conflict between the BIA and northwest fishing interests. Collier and the BIA studied the disputes and upheld basic tribal rights but generally reacted slowly and with moderation. The 1942 Tulee decision granted limited state power to regulate Indian fishing on traditional sights. The building of large dams on the Columbia further eroded tribal fishing rights. Motivated by public pressure over the loss of Celilo Falls, the BIA did more to protect tribal fishing in the years following Collier’s tenure. 4198. Paulson, Michael I. “Indian Regulation of NonIndian Hunting and Fishing.” Wisconsin Law Review, 1974 no. 2 (1974): 499–523. Tribes have inherent sovereignty subject to congressional plenary power. Treaties also provide tribes with additional regulatory authority over nonmembers. The infringement test was one way to decide cases involving state–tribal disputes. Congress has protected tribal hunting rights and when tribes regulate non-members, the state will have to bend. 4199. Pearson, Mary. “Hunting Rights: Retention of Treaty Rights after Termination—Kimball v. Callahan.” American Indian Law Review 4, no. 1 (1976): 121–33. In Kimball, the Klamath plaintiffs sought freedom from state control to hunt and fish on their traditional lands. The Ninth Circuit Court decided that they still retained these rights after termination on USFS lands and other lands open to hunting and fishing. 4200. Pearson, Timothy J. Governmental Policies Promoting Management of Wildlife and Wildlife-Based Recreation on American Indian Reservations, A Report to the following tribes: Crow, Flathead, Hualapai, Northern Cheyenne, Rosebud Sioux, San Carlos Apache, White Mountain Apache, Yakima. Harvard

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Project on American Indian Economic Development, John F. Kennedy School of Government, Cambridge, MA: Harvard University, April 1989. The 1983 Mescalero decision ruled that state game and fish regulations have no authority on reservations. Tribes have been creating their own wildlife management plans to prevent resource depletion. The lack of staff and wildlife codes are problems forcing tribes to examine a cost/benefit approach.

The grey whale was removed from the endangered species list in 1994 and the Makah tribal council has declared that their 1855 treaty rights permit hunting for cultural subsistence. They are permitted to take up to five whales representing each of the five villages. Their decision has angered the environmental group Sea Shepard.

4201. Perron, Brian J. “When Tribal Treaty Fishing Rights Become a Mere Opportunity to Dip One’s Net into the Water and Pull It out Empty: The Case for Money Damages When Treaty-Reserved Fish Habitat Is Degraded.” William and Mary Environmental Law and Policy Review 25 (Spring 2001): 783–835. Treaty-based fishing rights are property based. Reorganization of the treaty tribes’ right to sue for money damages would force individuals, companies, and states to reduce their damage to the fish habitat.

4206. Pittman, Philip and George M. Covington. Don’t Blame the Indians: Native American Rights and Michigan Indian Treaties. West Bloomfield, MI: Altwerger and Mandel, 1992. Three 1970s court decisions affecting tribal fishing rights in the Great Lakes are the focus of this study. United States v. Michigan, People v. Jondreau, and People v. LeBlanc re-created the tribes’ northern Great Lakes treaty fishery. These decisions became the foundation for the consent order that was intended to resolve future fishing disputes between tribes and the state of Michigan.

4202. Peterson, Thomas F. “Oregon Department of Fish and Wildlife v. Klamath Indian Tribe: Diminishing Treaty Rights.” Oregon Law Review 64, no. 4 (1986): 701–26. The Klamath accepted a reservation in southcentral Oregon in an 1864 treaty and in 1901 ceded additional lands due to a faulty boundary survey, but argued that they never ceded their rights to hunt and fish on those lands. The court ruled otherwise, diminishing the tribe’s treaty right to hunt and fish on the ceded lands, except under state authority.

4207. Powers, Melissa, “The Spirit of the Salmon: How the Tribal Restoration Plan Could Restore Columbia Basin Salmon.” Environmental Law 30 (Summer 2000): 867–910. The Columbia River tribes created the Columbia River Inter-Tribal Fish Commission to serve as a guide to where they have treaty fishing rights. The plan includes the entire Columbia River and should gain greater attention from other jurisdictions because the scope of this tribal fisheries plan can assist in salmon restoration.

4203. Petty, Kenneth. “Accomodation of Indian Treaty Rights in an International Fishery: An International Problem Begging for an International Solution.” Washington Law Review 54 (March 1979): 403–58. Tribes possess treaty rights to fish in the Pacific Northwest and it is important that all parties seek an international solution because the U.S. also has treaties with Canada regarding the same fisheries. This can only be done through diplomatic negotiations since courts will not be able to enter this area.

4208. Quandt, Amy. “Minnesota v. Mille Lac Band of Chippewa Indians: Should Courts Interpret Treaty Law to Empower Traditional Native American Tribes to Hatchet the Environment?” Villanova Environmental Law Journal 11, no. 2 (2000): 461–93. In deciding that the band had usufract rights to wildlife off the reservation, the courts created a double standard, one for the tribes and one for others, and now two laws govern the same resource. The court opened the door for the tribes to dictate land use because of their right to hunt and fish off the reservation. States should have power over all wildlife resources in the state.

4204. Phillips, Richard G., Jr. “Indian Fishing Rights.” Willamette Law Journal 8 (June 1972): 248–60. Does a state “escapement goal” for spawning fish constitute regulation of tribal treaty rights to fish? The state does have authority to regulate fisheries for the future, but Puyallup limited that power to necessary conservation and that restricts U.S. treaty guarantees to tribal members to fish free from state regulation. 4205. Piatote, Beth Hege. “Fighting for Native Rites: Renewal of the Makah Whale Hunt.” Native Americas 15 (Fall 1998): 38–43.

4209. Raver, Angela L. “Minnesota v. Mille Lacs Band of Chippewa Indians.” Ohio Northern University Law Review 26, no. 3 (2000): 815–31. In 1990, the band filed suit against Minnesota for a judgment reaffirming past off-reservation rights they reserved in the 1837, 1842, and 1854 treaties with the U.S. The Supreme Court decided “that there has been no express revocation of hunting, fishing, and gathering rights afforded to the” tribe in the 1837 treaty. This was a key victory for the tribe and though

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it only applies directly to the Mille Lacs Band, it is hoped that the favorable interpretation will influence future decisions. 4210. Ravnsborg, Jason. “Minnesota v. Mille Lac Band of Chippewa Indians: The Court Goes on Its Own Hunting and Fishing Expedition.” Great Plains Natural Resources Journal 4 (Spring/Summer 2000): 312–37. Focuses on a discussion between the majority and dissenting Supreme Court justices. The majority upheld the tribe’s usufructuary privileges stemming from the 1837 treaty with the U.S. The dissenting justices were in “utter disbelief at how the majority twisted and spun the existing doctrine to reach their desired conclusions” because past precedent had established Minnesota’s regulatory authority restricting off-reservation hunting and fishing. 4211. Reynolds, Laurie. “Indian Hunting and Fishing Rights: The Role of Tribal Sovereignty and Preemption.” North Carolina Law Review 62 (April 1984): 743–94. The sovereign powers of tribes often clash due to overlapping tribal and state laws. To end this ongoing conflict, and using tribal hunting and fishing powers as an example, tribes should assume a position of tribal preemption over state law. The state could only circumvent tribal preemption through a demonstration of necessity. 4212. Richards, Kent D. “Historical Antecedents to the Boldt Decision.” Western Legal History 4 (Winter/ Spring 1991): 69–84. After the Stevens treaties, tribal life changed and fishing became less an occupation. Stevens would have thus been surprised had he lived to hear Boldt’s decision. 4213. Robyn, Linda. “Criminalization of the Treaty Right to Fish: Response of the Great Lakes Chippewa.” In Native Americans and the Criminal Justice System, edited by Jeffrey Ian Ross and Larry Gold, 161–77. Boulder, CO: Paradigm Publishers, 2006. Account of Voigt, which reaffirmed treaty rights that had been historically eroded and the resulting racial hostilities between Indians and whites in Wisconsin. Anti-treaty groups and those wanting access to tribal natural resources have used public hysteria resulting from the fishing controversy. 4214. Roderick, Janna. “Indian–White Relations in the Washington Territory: The Question of Treaties and Indian Fishing Rights.” Journal of the West 16 (July 1977): 23–34. Discusses treaties tribes signed to preserve their rights to fishing sites, including the 1854 Treaty of Medicine Creek. American settlers did not accept the

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treaty language and initiated conflicts, while former Hudson’s Bay employees accepted the tribal rights. 4215. Roels, Starla Kay. “Borrowing Instead of Taking: How the Seemingly Opposite Threads of Indian Treaty Rights and Property Rights Activism Could Intertwine to Restore Salmon to the Rivers.” Environmental Law 28 (Summer 1998): 375–409. Explores the breadth of Fifth Amendment taking claims regarding Pacific Northwest salmon fisheries. Despite Congress’s ability to abrogate treaties, it is in the best interest of all if federal agencies manage the waters for the maximum benefit of the salmon. 4216. Rosenberg, Milton D. “Indian Law—Tribal OffReservation Jurisdiction.” Wisconsin Law Review 1975, no. 4 (1975): 1221–51. In 1966, the Yakama council passed an ordinance authorizing tribal officials to arrest tribal offenders at their fishing sites. Alvin Settler and his wife were convicted in tribal court for fishing off the Yakama reservation in Washington and they appealed their conviction to the federal court. The Ninth Circuit Court of Appeals upheld the conviction because the tribe has the right to enforce tribal regulations against members off the reservation. This decision is concerning because regulating power has been reserved for the national government. 4217. Sanders, Allen H. “Damaging Indian Treaty Fisheries: A Violation of Tribal Property Rights?” Public Land & Resources Law Review 17 (1996): 153–75. The Nez Percé have a pending case before the Ninth Circuit Court of Appeals seeking damages for their treaty property from Idaho Power because of the ill effects caused by the company’s river structures. This issue is discussed in light of the fact that the Stevens treaties were intended to increase tribal fisheries. These property claims are well-established Fifth Amendment issues. 4218. Satz, Ronald N. Chippewa Treaty Rights: The Reserved Rights of Wisconsin’s Chippewa Indians in Historical Perspective. Eau Clare, WI: Wisconsin Academy of Sciences, Arts and Letters, Transactions, vol. 79, no. 1 (1991), xix–251. Chippewa fishing rights in Wisconsin became an emotional legal battle that divided the state’s population. Satz places the fishing rights controversy in both its historical context and legal setting and includes maps, treaties, and court decisions in the appendix. 4219. Schlender, James H. “Treaty Rights in Wisconsin: A Review.” Northeast Indian Quarterly 8 (Spring 1991): 4–16. Wisconsin introduced the concept of safe harvest during trial and now must work with the tribes to

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insure that this practice is conducted even though it resulted in restrictive fish limits for whites. 4220. Schmidhauser, John R. “The Struggle for Cultural Survival: The Fishing Rights of the Treaty Tribes of the Pacific Northwest.” Notre Dame Lawyer 52 (October 1976): 30–40. Review of United States v. Washington, the importance of this decision to tribal self-sufficiency, and the backlash that the case created. 4221. Searles, Janis. “South Dakota v. Bourland: Another Supreme Court Move Away from Recognition of Tribal Sovereignty.” Environmental Law 25 (Winter 1995): 209–37. Based on Congress’s silence, the high court abrogated Cheyenne River Sioux hunting and fishing regulatory control over nonmembers exercising these activities on lands the Army Corp of Engineers condemned for the Oahe Reservoir. As long as this trend continues, tribes should seek to negotiate to protect their sovereignty. 4222. Silvern, Steven E. “Nature, Territory and Identity in the Wisconsin Treaty Rights Controversy.” Ecumene 2, no. 3 (1995): 265–82. Focuses on Wisconsin tribal treaty fishing rights and examines different definitions of nature that lead to different definitions of how to use nature’s potential resources. These differences stem from differing cultural and social roots, but also from treaty language. 4223. Simpson, Michael H. “Indian Regulation of NonIndian Hunting and Fishing.” Wisconsin Law Review, no. 2 (1974): 499–523. Tribes have used the sale of non-Indian game and fish permits to increase their revenues. This action often creates conflicts between state conservation laws and tribal rights to manage their own reservation wildlife resources. Though Congress has diminished some aspects of tribal sovereignty, it has protected tribal rights to regulate reservation hunting and fishing. 4224. Smith, Charlene L. and Howard J. Vogel. “The Wild Rice Mystique: Resource Management and American Indians’ Rights as a Problem of Law and Culture.” William Mitchell Law Review 10, no. 4 (1984): 743–804. Wild rice has been threatened and so has the tie between Native Americans and the rice. To protect this resource and the tribal cultures, the author provides a comprehensive model for the state of Minnesota to enact. 4225. Stegner, John R. “State v. Scotts: Impasse at Rapid River.” Idaho Law Review 17 (Fall 1980): 173–91.

This case involved the state of Idaho trying to regulate tribal fishing in the interest of conservation. The court did not agree, noting that the state’s actions did not meet the conservation test laid out in previous federal cases. There is a “bleak future” for the Nez Percé and the state due to this impasse at Rapid River over the regulation of spring Chinook runs. 4226. Strickland, Rennard. “Indian Law and the Miner’s Canary: The Signs of Poison Gas.” Cleveland State Law Review 39, no. 4 (1991): 483–504. Using Felix Cohen’s often quoted statement, explores the Wisconsin Chippewa fishing conflict as it was unfolding and ties the conflict to the recent Supreme Court decisions of Smith and Duro that illustrate Strickland’s concerns about the future of tribal conflict with states. 4227. Suagee, Stephen H. “A Tribal Strategy Increases Streamflows to Restore a Facility.” Natural Resources & Environment 9 (Winter 1995): 23–27, 68–69. The Central Valley Project and the Hoopa Valley Tribe of California both depend on water from the Trinity River. The tribe was able to restore instream flows to protect the fisheries because of Secretary of Interior Lujan’s 1991 decision. 4228. Sullivan, Robert. A Whale Hunt: Two Years on the Olympic Peninsula with the Makah and Their Canoe. New York: Scribner, 2000. Gray whaling ended in the 1920s, but reemerged in the 1990s as the numbers increased. During these decades of no hunting, the Makah lost some selfesteem. They believed that the whale hunt would infuse the needed ingredients to restore their pride. The Makah have a treaty right to hunt that is tied to the social purpose in life. 4229. Tharp, Stan J. “State v. Cutler: Limitation on Indians’ Hunting Rights in Idaho.” Idaho Law Review 23, no. 2 (1986–1987): 327–42. The Idaho Supreme Court ruled that Shoshone– Bannocks hunting in a state wildlife management area were unable to exercise their off-reservation treaty rights, stemming from the 1968 Fort Bridger Treaty, because the land was occupied. 4230. Tomlison, Zachary. “Abrogation or Regulation: How Anderson v. Evans Discards the Makah’s Treaty Whaling Right in the Name of Conservation Necessity.” Washington Law Review 78 (November 2003): 1101–29. The Ninth Circuit Court decided that the Marine Mammal Protection Act applied to the Makah 1855 Treaty of Neah Bay that explicitly provides for tribal whale hunting. Without examining whether Congress intended the act to apply to the Makah, the court re-

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stricted tribal whaling for the purpose of conservation. The court erred in Anderson and violated treaty rights.

of the original treaty rights.” This opened the door to the court’s willingness to compromise the tribes’ fish allocation through judicial action.

4231. Turner, Shelley D. “The Native American’s Right to Hunt and Fish: An Overview of the Aboriginal Spiritual and Mystical Belief System, the Effect of European Contact and the Continuing Fight to Observe a Way of Life.” New Mexico Law Review 19 (Spring 1989): 377–423. An overview of tribal hunting and fishing activities and attempts by other governments to take them away. Opponents call Native Americans “super citizens” with rights that extend beyond those of others.

4236. Walker, Jana L. “On Reservation Treaty Hunting Rights: Abrogation vs. Regulation by Federal Conservation Statutes—What Standard?” Natural Resources Journal 26 (Winter 1986): 187–96. Two bald eagle cases made their way to the Eighth and Ninth Circuit Courts of Appeals at nearly the same time. The facts were similar. People of recognized tribes took eagles on the reservation, but the courts split on whether the Bald Eagle Protection Act applied. As these cases go before the Supreme Court, the high court should examine for any expressed congressional intent to abrogate a treaty as dictated by the federal government’s trust responsibility.

4232. Ulrich, Roberta. Empty Nets: Indians, Dams, and the Columbia River. Corvallis: Oregon State University Press, 1999. Sixty years ago, the dams flooded many tribal fishing sites on the Columbia River. The federal government promised to replace those sites with in lieu sites so that tribal fishermen could stay on the river and fish. Congress passed legislation in 1988 providing for the past promised four hundred acres of in lieu sites, but in 1996, only one site was close to even being ready to use for fishing. 4233. Uncommon Controversy: Fishing Rights of the Muckleshoot, Puyallup, and Nisqually Indians. Seattle: University of Washington Press, 1970. In 1965, the American Friends Service Committee prepared a report on the emotional tribal fishing treaty rights of Pacific Northwest. This study provides a comprehensive background to the treaty fishing rights issues, but ended before Judge Boldt made his ruling in United States v. Washington. 4234. Vennum, Thomas Jr. Wild Rice and the Ojibway People. St. Paul: Minnesota Historical Society Press, 1988. Covers nearly every historical and contemporary aspect of Ojibway wild rice use. One chapter focus on the law. The issues are similar to off-reservation hunting and fishing rights. 4235. Vessels, Rod. “Treaties: Fishing Rights in the Pacific Northwest—The Supreme Court ‘Legislates’ an Equitable Solution.” American Indian Law Review 8, no. 1 (1980): 117–37. The Supreme Court refused to hear the state’s appeal in United States v. Washington, but took the issue of tribal fishing rights later as the Washington Supreme Court moved to counter the lower court’s decision. In so doing the court created “a new cannon of treaty construction—inequities imposed by an unforeseen contingency should be alleviated by adjustment, accommodation, and equitable apportionment

4237. Wasmuth, Edward H., Jr. “Whose Wildlife Is It Anyway? Conflicts between State and Tribal Regulation of Non-Indian Hunting and Fishing after New Mexico v. Mescalero Apache Tribe.” Virginia Journal of Natural Resources Law 3 (Winter 1984): 315–33. States argue that they control non-Indian hunting and fishing activities on reservations, but in Mescalero the Supreme Court decided that when tribes and the federal government jointly manage game and fish, the tribe has authority over nonIndian sportsmen. Outcomes could differ in related cases due to differing factors. 4238. Watters, Lawrence and Connie Dugger. “The Hunt of Gray Whales: The Dilemma of Native American Treaty Rights and the International Moratorium on Whaling.” Columbia Journal of Environmental Law 22, no. 2 (1997): 319–52. The California gray whale was removed from the endangered species list in 1994 prompting the Makah to prepare a petition to the International Whaling Commission to resume tribal hunts based on tradition and custom. Their plan places the U.S. in the difficult position of opposing whaling on the international level and especially aboriginal arguments Japan has put forth. At the same time, the U.S. has a trust relationship with the Makah to support their efforts for greater self-determination. 4239. Whaley, Rick and Walt Bresette. Walleye Warriors: The Chippewa Treaty Rights Story. Warner, NH: Tongues of Green Fire Press, Writers Publishing Cooperative, 1994. A violent struggle followed a 1983 federal court ruling in favor of the Lake Superior Chippewa offreservation fishing rights. Success came through forging alliances across racial and class boundaries. The authors offer historical background, analysis of treaty rights and the Voight decision,

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and consideration of the subsequent struggle against corporate mining. 4240. Wilkinson, Charles F. “To Feel the Summer in the Spring: The Treaty Fishing Rights of the Wisconsin Chippewa.” Wisconsin Law Review, no. 3 (1991): 375–414. Treaty fishing conflicts in the Pacific Northwest present pitfalls for both the state and bands. The Chippewa bands are sovereign and depend on their sovereign rights. The involved parties should pursue cooperation instead of confrontation. 4241. Wilkinson, Charles. Messages from Frank’s Landing: A Story of Salmon, Treaties, and the Indian Way. Seattle: University of Washington Press, 2000. Biography of Nisqually Billy Frank, Jr. who was arrested more than fifty times, beginning in 1945, in his fight for his people’s rights. The text is accompanied by Hank Adams’s photo essay. 4242. Wilkinson, Charles. “The Northwest Indian Fishing Decisions: Luminous Events in Ninth Circuit History.” Western Legal History 14 (Winter/Spring 2001): 19–27. The Boldt decision is one of the most important of many tribal fishing case from the Northwest and it set the stage for tribal, state, and federal fisheries management. 4243. Williams, C. Herb and Walt Neubach. Indian Treaties, American Nightmare: The First, Comprehensive Account of the Most Controversial Legal Battle of the Seventies. Seattle, WA: Outdoor Empire Publishing, 1976. In the name of treaty rights, Indians are winning lawsuits with grave consequences for America’s fish, game, and other natural resources. Past wrongs should not be righted with “one-sided” court decisions favoring small Indian groups. 4244. Williams, Ted. Don’t Blame the Indians: Native Americans and the Mechanized Destruction of Fish and Wildlife. South Hamilton, MA: GSJ Press, 1986. Short chapters discuss tribal hunting, fishing, gaming, and fireworks sales. Native Americans need to get outsiders to help them get off the road of free lunches and “suspended rules” and “to stop wallowing in the victimization of their ancestors, to have a cause over and beyond their treaty ‘right,’ to be, as they used to say of themselves, proud and free.” 4245. Wilson, Rollie. “Removing Dam Development to Recover Columbia Basin Treaty Protected Salmon Economies.” American Indian Law Review 24, no. 2 (1999–2000): 357–419.

To meet its 1855 treaty obligations to Columbia Basin tribes, the U.S. must remove dams and related hydropower developments. No other federal action will guarantee economically viable salmon harvests for these tribes. 4246. Wood, Mary Christina. “The Tribal Property Right to Wildlife Capital (Part I): Applying the Principles of Sovereignty to Protect Imperiled Wildlife Populations.” Idaho Law Review 37, no. 1 (2000): 1–102. Tribal governments possess “sovereign trusteeship,” in which the tribes have a property interest in the fish passing from one jurisdiction to another. The Supreme Court stopped state regulatory attempts over tribes, but this is an area involving many sovereigns who all have an interest in developing “intersovereign property relationships with respect to the Columbia River fishery.” 4247. Wood, Mary Christina. “The Tribal Property Right to Wildlife Capital (Part II): Asserting a Sovereign Servitude to Protect Habitat of Imperiled Species.” Vermont Law Review 25 (Winter 2001): 355–448. Using the Columbia River Basin salmon as a foundation, examines tribal property rights to wildlife by developing “a theory of sovereign trusteeship in wildlife to establish a protectable form of tribal property interest.” The animals must have habitat. As courts hear tribal wildlife case, judges need to develop courageous models for the future. 4248. Woodbury, Stephen E. “New Mexico v. Mescalero Apache Tribe: When Can a State Concurrently Regulate Hunting and Fishing by Nonmembers on Reservation Land?” New Mexico Law Review 14 (Spring 1984): 349–69. The Supreme Court decided that the state of New Mexico could regulate non-Indian hunting activities on the reservation by balancing state, federal, and tribal interests. The court employed the Bracker balancing test of competing interests. The tribe also had more restrictive bag limits, historic interest in wildlife, and employed the Colville standard concerning revenue. 4249. Wrone, David R. “The Economic Impact of the 1837 and 1842 Chippewa Treaties.” American Indian Quarterly 17 (Summer 1993): 329–40. A commentary on the controversy over the Voight decision of 1983, which upheld Chippewa hunting, fishing, and gathering rights reserved in their 1837 and 1842 treaties. Wrone provides statistical data to argue that opposition to Voight based on the assumption that the Chippewas will harm the resources and local economy is unfounded.

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4250. Yanagida, Joy A. “The Pacific Salmon Treaty.” American Journal of International Law 81 (July 1987): 577–92.

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In 1985, President Reagan signed the U.S.–Canada Pacific Salmon Treaty. This document brought twenty-four tribes into the fisheries planning process.

Chapter 43 Mineral and Oil Rights and Environmental Issues

4251. Ali, Saleem H. Environmental Planning for a Mining Venture on Native Land. Harvard Project on American Indian Economic Development, John F. Kennedy School of Government, Cambridge, MA: Harvard University, May 1998. Arch Coal Inc. has entered into discussions with the Crow tribe for a coal-mining operation. Since this is the first large-scale operation, the tribe will need to conduct sound planning regarding the economic aspects and environmental issues.

Study of tribal governments’ successful efforts to gain greater control over reservation oil, coal, and mineral leasing. Breaking free from complete federal control, the tribes are now entering into ventures with private companies. Energy development is an important but complicated facet of tribal economic development, which in turn is a necessity if reservations are to remain homelands. Includes discussions of leasing, CERT’s formation and function, royalties management, Indian allottees and water issues.

4252. Ali, Saleem H. Mining, the Environment, and Indigenous Development Conflicts. Tucson: University of Arizona Press, 2003. Neither technical impact studies, economic factors, nor external societal influences explain why environmental resistance movements arise among indigenous communities in Canada and the U.S. over mining. The key factors in the evolution of such resistance are the negotiation process, strategic alliance formation, “and the articulation of sovereignty.” The Navajo Nation serves as an example.

4255. Ambler, Marjane. “The Three Affiliated Tribes at Fort Berthold—Mandan, Hidatsa, Arikara—Seek to Control their Energy Resources.” In Native Americans and Energy Development II, edited by Joseph G. Jorgensen, 194–99. Boston, MA: Anthropology Resource Center and Seventh Generation Fund, 1984. Tribal sophistication in dealing with energy development has been increasing and Congress and the courts have become more accepting of tribal jurisdictional authority. Ambler focuses on the affiliated tribes’ Office of Natural Resources and Energy Development.

4253. Alverez, Frank H. and J. Kevin Poorman. “Real Property: Congressional Control of Allotted Mineral Interests.” American Indian Law Review 3 (Winter 1975): 159–67. Allotting a reservation put mineral interests in individual hands. There were different approaches to individual mineral rights until Choate v. Trapp ruled that a property right was created in statutes giving the allottee interests in both the surface and sub-surface resources. More recent cases may find that Congress still controlled the sub-surface rights for the benefit of the tribe.

4256. Ambler, Marjane. “Uncertainty in CERT.” In Native Americans and Energy Development II, edited by Joseph G. Jorgensen, 71–78. Boston, MA: Anthropology Resource Center and Seventh Generation Fund, 1984. Most tribes in 1981 were pleased with CERT’s accomplishments, but at a time when unity was crucial because of a GAO investigation, four tribes withdrew their membership, including the Cheyenne River Sioux, Colville Confederated Tribes, Shoshone, and Arapahos. 4257. Anderson, David H. “Strip Mining on Reservation Lands: Protecting the Environment and the Rights of Indian Allotment Owners.” Montana Law Review 35 (Summer 1974): 209–26.

4254. Ambler, Marjane. Breaking the Iron Bonds: Indian Control of Energy Development. Lawrence: University of Kansas Press, 1990.

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Crow and Northern Cheyenne have large strippable coal deposits. There are no assurances that the National Environmental Policy Act includes reservations and the leases approved by the Secretary of the Interior. Despite tardy attempts to correct this problem, the best hope is to terminate the permits and begin anew with permits that provide environmental protection to surface owners. 4258. Ashabranner, Brent. Morning Star, Black Sun: The Northern Cheyenne Indians and America’s Energy Crisis. New York: Dodd, Mead & Company, 1982. An account, written for a popular audience with photographs by Paul Conklin, of the tribe’s struggle for sovereignty, land, and cultural survival against the U.S. and coal and energy corporations, including Consolidation Coal Company and ARCO. 4259. Barry, Tom. “Navajos and National Nuclear Policy.” Southwest Economy & Society 4 (Spring/Summer 1979): 21–32. The BIA leased Navajo lands for uranium mining which led to increased illness. Economically, the mines have forced Navajos off their lands, polluted waterways, and outsiders are moving into their communities. 4260. Barry, Tom. “What Price Energy? Hazards of Uranium Mining in the Southwest.” American Indian Journal of the Institute for the Development of Indian Law 5 (January 1979): 18–23. Navajo uranium mining left the reservation in a degraded state as radiation contamination led to sickness and death. 4261. Barsh, Russel Lawrence. “Merrion: False Hopes for Clear Thinking.” American Indian Journal of the Institute for the Development of Indian Law 8, no. 1 (1982): 6–10. Merrion follows the last decade’s pattern of Supreme Court decisions that wander through the woods. It is another aimless case that fails to follow the canons of construction for federal Indian law. 4262. Barsh, Russel L. and J. Youngblood Henderson. “Tribal Administration of Natural Resource Development.” North Dakota Law Review 52 (Winter 1975): 307–47. As outsiders see the potential for resource development, especially energy resources, tribes must be wary of any federal overtures to oversee development. Tribal ownership and/or tribal control of these resources can potentially improve living standards. 4263. Bennett, Elmer F. “Jurisdiction, Powers, and Attitude of the United States on Conservation of Oil and Gas.”

Rocky Mountain Mineral Law Institute 5 (1960): 43–75. The first oil well in Indian Territory was drilled on the Cherokee Reservation in 1897 and shortly thereafter the Department of Interior created several oil inspectors to insure that wells were drilled and plugged properly. From that experience regulations were created for Indian lands. Congress passed a public domain leasing act in 1920. 4264. Berger, Edward B. “Indian Lands—Minerals—Related Problems.” Rocky Mountain Mineral Law Institute 14 (1968): 89–122. Developing mineral and gas operations on reservations creates problems for the lessee. There should be a new Code of Federal Regulations governing tribal mineral leasing. 4265. Berger, Edward B. “Indian Mineral Interest-Potential for Economic Advancement.” Arizona Law Review 10 (Winter 1968): 675–89. Historical overview arguing that the current mineral leasing system has been detrimental to tribal interests, and advertising leases has been one of the greatest problems. 4266. Berger, Edward B. “Negotiations for Acquiring Exploration Rights on Indian Lands.” Rocky Mountain Mineral Law Institute 19 (1974): 447–81. Discusses potential steps that outsiders might find useful when negotiating for mineral exploration rights on a reservation. Contract should be made with tribal leaders first, then the superintendents. The National Environment Policy Act of 1969 creates new wrinkles in negotiations for reservation mineral leases because an environmental impact study may be required. 4267. Berger, Edward B. and William J. Mounce. “Applicability of State Conservation and other Laws to Indian and Public Lands.” Rocky Mountain Mineral Law Institute 16 (1971): 347–97. Studies the federal government’s regulatory authority over tribal mineral and oil development. It is important to consult federal records for tribal land ownership, as well as county court house records. There are implied covenants in tribal leases. Tribes push to be free from state conservation regulations, based on the Constitution and treaties. Since federal preemption has carried the day, greater state involvement is needed. 4268. Bergman, Sandra E. “Blessing or Curse? Uranium Mining on Indian Lands.” Environment 24, no. 7 (1982): 6–13, 33–35. Tribes owned half of the nation’s private uranium reserves and produced 11 percent of the world’s ura-

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nium. The Navajo, Spokane, and Laguna Pueblo are the largest producers accounting for 12 percent of the world’s output in 1980. Despite wealth, they live in poverty, suffer environmental damage to their lands, and face ongoing health issues. 4269. Boggs, James P. “The Challenge of Reservation Resource Development: A Northern Cheyenne Instance.” In Native Americans and Energy Development II, edited by Joseph G. Jorgensen, 205–36. Boston, MA: Anthropology Resource Center and Seventh Generation Fund, 1984. Selling resources without building a viable economy “may lock the reservation community even more tightly into the cycle of poverty.” A Northern Cheyenne–Arco deal serves as a case study of this process and exemplifies the importance of tribal planning as a better alternative to the imposition of federal government designed decision-making structures. 4270. Books, Richard K. “Oil and Gas: The Effect of Oklahoma Conservation Laws on Federal and Indian Lands.” Oklahoma Law Review 29 (Fall 1976): 994–1002. Discusses the 1938 Omnibus Tribal Leasing Act and the Osage exemption from the act, as well as the special problems associated with tribal lands and allotted lands. Because Congress has not made its laws exclusive, state laws apply if they are not in conflict with federal interests. 4271. Branam, James T. “Property Rights: Intertribal Mineral Rights in the Arkansas Riverbed.” American Indian Law Review 2 (Summer 1974): 125–35. The Supreme Court decided in Cherokee Nation v. Oklahoma that tribes had rights to oil and gas under the Arkansas River, but did not address what was the relationship between these resources to each tribe. Congress passed legislation permitting the Choctaw and Cherokee to either sue each other or mediate a settlement. 4272. Burchardt, Bill. “Osage Oil.” Chronicles of Oklahoma 41 (Autumn 1963): 253–69. History of oil development, the Foster lease, the tribal ownership of subsurface rights, revenues received by the tribe, and the institution of the public lease auction in 1912. The contextual information provides backdrop to explain the motives for, and chaotic environment contributing to, a series of murders in the 1920s of Osage tribal members who had inherited oil wealth. 4273. Burley, Carl L. “Indian Lands—An Industry Dilemma.” Rocky Mountain Mineral Law Institute 27 (1982): 1605–49.

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Examines the problems that the BIA creates for the mining and oil industry and recommends that it be abolished. It is time to end Native second-class citizenship. 4274. Callard, Amy. “Southern Ute Indian Tribe v. Amoco Production Company: A Conflict over What Killed the Canary.” Tulsa Law Journal 33 (Spring and Summer 1998): 909–29. After the Southern Ute tribe leased coal to Amoco, both claimed rights to coal bed methane. The Tenth Circuit Court of Appeals decided that the coal bed methane was tribal property based on the 1909 and 1910 statutes that reserved ownership of coal to the U.S. as the trustee for the tribe. 4275. Carroll, Peter F. “The Dawning of a New Era: Tribal Self-Determination in Indian Mineral Production.” Public Land Law Review 9 (1988): 81–104. History of tribal mineral leasing activities including the 1938 Mineral Leasing Act. The Indian SelfDetermination and Educational Assistance Act of 1975 established a stronger contracting policy to permit tribal control over existing programs and also stimulated a greater interest in tribal self-determination. Eventually five mineral contract arrangements were developed that tribes could follow. Congress passed the 1982 Indian Mineral Development Act to increase the financial return to tribes and two years later the Federal Oil and Gas Royalty Management Act was enacted. State taxation often hurts development. Mineral development cannot be the foundation for tribal selfdetermination, but the mineral leasing program has become self-sufficient. 4276. Carroll, Peter F. “Drumming Out the Intent of the Indian Mineral Leasing Act of 1938.” Public Land Law Review 7 (Spring 1986): 135–44. The state of Montana taxed tribal Mineral Leases for thirty years after the passage of the 1938 Indian Mineral Leasing Act, but in 1977, the Solicitor wrote that state taxing of Fort Peck’s mineral leases was forbidden and the Blackfeet filed suit against the state of Montana. This case reached the Supreme Court that decided in Blackfeet II that, absent any expressed consent from Congress, Montana could not tax tribal mineral leases. 4277. Chestnut, Steven. “Statutes and Regulations Governing Indian Coal Leases and Innovations in Recent Coal Agreements.” In American Indian Lawyer Training Program, Seminar on Indian Natural Resource Law and Finance, 67–108. Oakland, CA: American Indian Lawyer Training Program, 1980. Overview of current coal leasing activities on tribal lands. The BIA’s poor planning process was evident at Northern Cheyenne, but there are efforts to change this record.

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4278. Churchill, Ward and Winona LaDuke. “Native North America: The Political Economy of Radioactive Colonialism.” Journal of Ethnic Studies 13, no. 3 (1985): 107–33. Internal colonialism continues in the U.S. and Canada, and uranium is fueling this process in the nuclear age. These internal colonies in turn fuel North American imperialism. 4279. Clemmer, Richard O. “Black Mesa and the Hopi.” In Native Americans and Energy Development, 17–34. Cambridge, MA: Anthropology Resource Center, 1978. A 1966 lease gave Peabody Coal Company the right to strip mine a portion of the Joint Use Area and a subsequent lease allowed for the building of a water transportation system. These deals occurred with very few Hopis knowing anything about them. Clemmer comments on his attempt to aid Hopi traditionalists in their failed battle to save Black Mesa, and concludes by optimistically stressing Hopi resilience. 4280. Clemmer, Richard O. “Effects of the Energy Economy on Pueblo Peoples.” In Native Americans and Energy Development II, edited by Joseph G. Jorgensen, 79–115. Boston, MA: Anthropology Resource Center and Seventh Generation Fund, 1984. Surveys the 1945 to 1970 period with special emphasis on Peabody Coal’s Black Mesa operation, Anaconda–ARCO’s uranium mine near the Laguna and Acoma communities, geothermal developments, and the University of California’s Los Alamos Scientific Laboratory. Pueblo interests have been overridden by those of corporations, state governments, and the federal government, and greater dependency has resulted. 4281. Clinton, Fred S. “First Oil and Gas Well in Tulsa County.” Chronicles of Oklahoma 30 (Autumn 1952): 312–32. A Creek citizen describes tribal efforts to resist “carpetbagger rule” by way of oil leases on allotted Creek lands and to instead develop the Bland–Clinton oil and gas well at Red Fork in 1901. Creeks hoped to develop economic alternatives to ranching as the allotment process progressed. 4282. Davis, Russell, James E. Wilen, and Rosemary Jergovic. “Oil and Gas Royalty Recovery Policy on Federal and Indian Lands: A Response.” Natural Resources Journal 23 (April 1983): 417–39. A study of efficiency considering the cost relationship between “royalty recovery policy on net output” and “the value of the oil and gas recovered minus the cost of extraction.” 4283. Dawson, Susan E. “Navajo Uranium Workers and the Effects of Occupational Illness: A Case Study.” Human Organization 51, no. 4 (1992): 389–97.

The federal government and the mining companies never informed Navajo miners of the dangers of working in these facilities. They suffer from physical illness and mental trauma. 4284. Dick A. Robert. “Indian Lands.” Rocky Mountain Mineral Law Institute 1 (1955): 59–83. Overview of tribal lands and aboriginal title, and a discussion of the different types of reservations and mineral- and oil-leasing acts that affect reservation people. 4285. Dolan, Brian T. “State Jurisdiction over Non-Indian Mineral Activities on Indian Reservations.” Rocky Mountain Mineral Law Institute 21 (1975): 475–533. Lessees have to be especially concerned about ways state regulations may affect their mineral operations on reservations. Tribal governments have extensive authority in regulating and controlling reservation mineral development, and tribal authority in this area will most likely increase. Yet states seek to extend their authority over reservation mineral activities. 4286. Evans, Nancy H. “California: The Native American Heritage Commission and Energy-Related Issues.” In Native Americans and Energy Development II, edited by Joseph G. Jorgensen, 200–204. Boston, MA: Anthropology Resource Center and Seventh Generation Fund, 1984. In 1976, California created the Commission to protect California Natives’ cultures and religions. The Commission realizes that ensuring enforcement of state and federal environmental protection laws is essential, but protecting sacred sites is also a priority. 4287. Finney, Frank F., Sr. “The Indian Territory Illuminating Oil Company.” Chronicles of Oklahoma 37 (Summer 1959): 149–61. Includes discussion of leasing arrangements with the Osage tribe that benefited considerably from oil and gas royalties and bonuses. 4288. Fiske, Terry Noble. “Rush to the Rockies: Some Aspects of Mineral Development of Non-Fee Land.” University of Kansas Law Review 17 (January 1969): 225–61. The interest in Rocky Mountain minerals brought mineral developers onto federal and tribal lands. Provides information on tribal mineral leasing. 4289. Fixico, Donald L. “Tribal Leaders and the Demand for Natural Energy Resources on Reservation Lands.” In The Plains Indians of the Twentieth Century, edited by Peter Iverson, 219–35. Norman: University of Oklahoma Press, 1985. Discusses the conflict between conservative traditionalists and progressive tribal leaders over wisdom of mining energy resources on tribal lands.

Mineral and Oil Rights and Environmental Issues

4290. Forbes, Gerald. “History of the Osage Blanket Lease.” Chronicles of Oklahoma 19 (March 1941): 70–81. Osage reservation oil was developed between 1896 and 1916 under the Foster Lease. Approved by the Osage National Council, and also known as the “blanket lease,” it gave Edwin B. Foster exclusive oil rights for ten years in exchange for a 10 percent royalty payment and additional fee for each well. Tribal members and the Osage agent initially protested that the signers did not represent the majority and had been induced to sign using whiskey. Nevertheless, all parties eventually benefited. 4291. Forbes, Gerald. “Oklahoma Oil and Indian Land Tenure.” Agricultural History 15 (October 1941): 189–94. The oil push began on Oklahoma reservations in 1917. A complacent government had passed laws for decades permitting tribal lands to pass from tribal or individual Indian ownership. As a result, nineteen counties on reservations had tenancy rates as high as 70 percent. Oil drilling had a negative effect on farming, due to salt water disposal, and the American Indians’ lack of private land dealings also encouraged large tenancy rates. 4292. Gedicks, Al. The New Resource Wars: Native and Environmental Struggles against Multinational Corporations. Boston, MA: South End Press, 1993. Multinational corporations are aggressors against both Native peoples and the natural world, and there are alternatives to this brand of destruction. A developing Native-environmentalist alliance has offered hope. Gedicks considers this alliances’ efforts relative to “hydroelectric, logging, and oil drilling megaprojects,” and devotes special focus to mining in northern Wisconsin. 4293. Gedicks, Al. “Resource Wars in Chippewa Country.” In Native Americans and Energy Development II, edited by Joseph G. Jorgensen, 175–93. Boston, MA: Anthropology Resource Center and Seventh Generation Fund, 1984. Energy and mineral development corporations are gaining access to the remaining landbase of Lake Superior tribes. Corporations are creating “mineral resource colonies” by denying decision-making power to the affected peoples. Delaying corporate plans can provide time for opposing groups to find necessary allies. 4294. Gibbons, Francis M. “Examination of Indian Mineral Titles.” Rocky Mountain Mineral Law Institute 10 (1965): 73–105. Describes problems in determining the validity of Indian mineral titles and examines the statutory au-

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thorities and the procedures that outsiders must follow to obtain tribal mineral leases. 4295. Gibson, A. M. “Leasing of Quapaw Mineral Lands.” Chronicles of Oklahoma 35 (Autumn 1957): 338–47. Describes the leasing process that mining interests pursued to gain access to zinc and lead on allotted Quapaw lands, and the protections instituted on behalf of the tribal members. The Quapaws were exploited. By 1930, the deposits were in decline and, despite the greater constancy provided by commingling, Quapaws have benefited less from mining operations in recent years. 4296. Gordon, Suzanne. Black Mesa: The Angel of Death. New York: John Day Company, 1973. Photographic essay depicting destruction by Peabody Coal’s mining operation as consistent with the Hopi belief that a third war will threaten mankind and the earth. 4297. Gross, Winifred T. “Tribal Resources: Federal Trust Responsibility: United States Energy Development versus Trust Responsibilities to Indian Tribes.” American Indian Law Review 9, no. 2 (1981): 309–43. Considers uranium mining and conflicts of interest inherent in the trust relationship between tribes and the U.S. Mitchell and Northern Cheyenne are analyzed. 4298. Harris, Arthur. “Preface.” In Native Americans and Energy Development, 1–2. Cambridge, CA: Anthropology Resource Center, 1978. To prevent further damage to tribes, including Harris’s Navajo Nation, energy development cannot continue in the manner it has. Tribes must develop their own technical expertise and make cautious compromises to maintain their traditions and cultures. 4299. Henderson, Al. “The Aneth Community: Oil Crisis in Navajoland.” Indian Historian 12 (Winter 1979): 33–36. The Texaco Aneth oil production unit is located in the San Juan Basin. After years of trying to work with Texaco over local environmental issues, the Coalition of Navajo Liberation shut down the production facilities in 1978. The confrontation ended when Texaco agreed to eighteen of twenty demands. Land pollution, loss of stock, and water contamination, all contributed to the problem. 4300. Hightower, Michael J. “Cattle, Coal, and Indian Land.” Chronicles of Oklahoma 62 (Spring 1984): 4–25. Includes discussion of treaties and federal policies affecting coal development on tribal lands beginning in the 1870s.

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4301. Hook, M. Julia and Britt D. Banks. “The Indian Mineral Development Act of 1982.” Natural Resources & Environment 7 (Spring 1993): 11–13, 52–54. Also known as the Melcher Act, it replaced a 1938 law that restricted reservation mineral leasing, but under the new law tribes can enter into joint ventures with outside companies in hopes of gaining a greater share of the revenue. 4302. Houle, Antoinette J. “Non-Lease Agreements Available for Indian Mineral Development.” Natural Resources Journal 24 (January 1984): 195–201. A legislative history of the 1982 Indian Mineral Leasing Act that provides tribes the opportunity to enter into mineral-lease agreements with non-Indians. 4303. Irvin, Amelia W. “Energy Development and the Effects of Mining on the Lakota Nation.” Journal of Ethnic Studies 10 (Spring 1982): 89–102. During the first oil embargo, the term National Sacrifice Area was used to describe the northern Great Plains as companies searched for coal, oil, and uranium. The Black Hills contains uranium and other minerals, and mining there for uranium will add health risks to land conflicts. 4304. Israel, Daniel H. “Reducing the Impact of State, Local, and Indian Taxes on Western Mineral Development.” Rocky Mountain Mineral Law Institute, 30 (1984): 3-1–3-67. After Merrion, the Department of the Interior issued guidelines for tribes in taxing lessees holding tribal mineral leases. The tribes’ legal impositions, as well as state taxes, create a condition called double taxation. Lessees have to be well versed in tax burden formulation, as well as conduct audits to ensure that they pay no more than required.

4307. Jorgensen, Joseph G. “The Political Economic of the Native American Energy Business.” In Native Americans and Energy Development II, edited by Joseph G. Jorgensen, 10–51. Boston, MA: Anthropology Resource Center and Seventh Generation Fund, 1984. Introduction to a volume of essays from various authors intending to inform tribes of their options and possible consequences in regard to energy development. Corporations have continued to take advantage of tribes and the federal government has done more to assist the non-Indian interests than to protect tribes. CERT has been naive and unable to adequately assist tribes. 4308. Jorgensen, Joseph G., with Shelton H. Davis and Robert O. Mathews. “Energy, Agriculture, and Social Science in the American West.” In Native Americans and Energy Development, 3–16. Cambridge, MA: Anthropology Resource Center, 1978. Overview serving as an introduction to essays by various authors stressing the important role social scientists can play in helping tribes develop alternative positive models for energy development to break from the cycle of damaging and “rapacious” corporate development. 4309. Kelly, Lawrence C. “The Navaho Indians: Land and Oil.” New Mexico Historical Review 38 (January 1963): 1–28. The 1927 Congressional decision to uphold Navajo rights to oil-bearing lands represented a significant shift in federal Indian policy. The oil revenue contributed to the further expansion of the Navajo land base in the years leading up to 1934.

4305. Johansen, Bruce E. “Manifest Disregard: Resource Exploitation in 20th Century Indian North America.” Native Americas 20 (Spring 2003): 32–39. Navajos and other tribal communities paid a heavy price for the mining of uranium on their lands as the rising health issues associated with radioactive mining have become well documented.

4310. Kozub, Robert M. “Indian Taxation of Reservation Minerals.” Journal of State Taxation 4 (Winter 1986): 303–09. Merrion and Kerr-McGee were two leading tribal mineral severance cases from the 1980s. The court permitted states to impose their taxes on minerals taken from tribal lands. In Blackfeet Nation, the court permitted states taxation and the producers took the taxes from tribal royalties, creating indirect state taxation against the tribe.

4306. Jones, Quentin Michael. “Mineral Resources: Tribal Development of Reservation Oil and Gas Resources Through the Use of a Nontaxation-Based Tribal Joint Development Program.” American Indian Law Review 9, no. 1 (1981): 161–94. Tribal governments need to take a more active role in the decision-making process involving their oil and gas resources. They need to understand what alternatives are available to them so they can break the old patterns of oil and gas leasing. This should include tax planning in tribal mineral development.

4311. Kreger, Robert B. “The Negotiation of Energy Resource Agreements.” In American Indian Lawyer Training Program, Seminar on Indian Natural Resource Law and Finance, 487–517. Oakland, CA: American Indian Lawyer Training Program, 1980. There are four general arrangements that tribes and energy companies can negotiate for resources development: leases, production sharing, joint ventures, and owner resource development. Kreger proposes another, which is a lease with tribal ownership over time increasing to 100 percent.

Mineral and Oil Rights and Environmental Issues

4312. LaDuke, Winona. “The Council of Energy Resource Tribes.” In Native Americans and Energy Development II, edited by Joseph G. Jorgensen, 58–70. Boston, MA: Anthropology Resource Center and Seventh Generation Fund, 1984. Provides background on CERT and assesses the organizations’ successes and failures. Two issues that tribes must deal with are the link between water rights and energy development and the decision whether to mine uranium. 4313. Lamsam, Teresa Trumbly and Bruce E. Johansen. “How the Osages Kept Their Oil.” In Enduring Legacies, Native American Treaties and Contemporary Controversies, by Bruce E. Johansen, 271–81. Westport, CT: Praeger, 2004. Ironically, a clause in the 1906 legislation for allotting the Osages upheld tribal control of their substantial oil resource. 4314. Leubben, Thomas E. American Indian Natural Resources: Oil and Gas. Washington, DC: Institute for the Development of Indian Law, 1980. Training book providing basic information on the oil and gas industry and how to develop both on reservations. 4315. Leubben, Thomas E. “Mining Agreements with Indian Tribes.” American Indian Journal of the Institute for the Development of Indian Law 2 (May 1976): 2–8. Different types of permits are discussed for exploration and mining, as well as taxation and royalty arrangements. 4316. Leubben, Thomas E. “Overview of the Problems Involved in Negotiating for the Mining, Milling, Smelting and Refining of Base Metals.” In American Indian Lawyer Training Program, Seminar on Indian Natural Resource Law and Finance, 213–34. Oakland, CA: American Indian Lawyer Training Program, 1980. Discusses royalty arrangements and tribal and company motives in the negotiation process. Tribes face difficulties when negotiating base metals leases. 4317. Levy, Jerrold E. “Who Benefits from Energy Resource Development: The Special Case of the Navajo Indians.” Social Science Journal 17 (January 1980): 1–19. The construction of the Page, Arizona, electric generating plant used water from the Colorado River and coal from Black Mesa. Energy is a boom or bust business so Navajos who work at Page still keep stock as a hedge. At the tribal level, the Navajos have enacted several taxes, such as a business activity tax. The energy development at Navajo reveals the im-

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portance of sovereignty and economic development going hand in hand. 4318. Lipton, Charles. “Charles Lipton on Indian Mineral Leases.” American Indian Journal of the Institute for the Development of Indian Law 2 (May 1976): 9–10. An international lawyer, Lipton gave this presentation at the Native American Natural Resources Development Federation of the Great Plains. He discusses problems of mining operations in developing communities. 4319. Lipton, Charles. “Problems in Negotiating Indian Mineral Agreements.” Seminar on Indian Natural Resource Law and Finance. Oakland, CA: American Indian Lawyer Training Program, 1980, 3–22. Discusses the problems tribes face when negotiating mineral leases, including Bureau pressure, mining company pressure, lack of information and money, and federal resource under-pricing. 4320. Lipton, Charles. “The Pros and Cons of Petroleum Agreements.” American Indian Journal 6 (February 1980): 2–10. Tribes that enter into petroleum agreements have to weigh both the positive and the negative sides of working with oil exploration. 4321. Lynaugh, Thomas J. “The Responsibility for Reclamation of Surface Mining on Indian Lands under the Surface Mining Control and Reclamation Act of 1977.” South Dakota Law Review 26 (Summer 1981): 547–63. This legislation provided for strip mining regulation. The Crow tribe is using its sovereignty to negotiate with potential companies their role in reservation strip-mining reclamation. 4322. McGee, Patti Palmer. “Indian Lands: Coal Development: Environmental/Economic Dilemma for the Modern Indian.” American Indian Law Review 4, no. 2 (1976): 279–88. Coal mining on reservations creates a conflict between outsiders and tribal residents living on the reservations where mining will occur. Economic considerations have to be weighed against cultural integrity and environmental damages. Secretary of the Interior control of coal leasing deprives tribal governments of their right to make home rule decisions. 4323. McLanahan, Elizabeth A. and Jill M. Harrison. “Southern Ute: Trial Court-to-Supreme Court.” Journal of Natural Resources & Environmental Law 15, no. 2 (2000–2001): 247–65. The Southern Utes claimed ownership of methane under 200,000 acres of reservation land. The high court relied on federal land acts for their decision in

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the tribe’s favor, a decision that may weaken state court authority. 4324. McLane, Alfred E. Oil and Gas Leasing on Indian Lands. Denver, CO: F. H. Gower, 1955. Legal reference emphasizing differences between Indian lands and the federal public domain. Describes the legal peculiarities of laws and procedures pertaining to oil and gas leases, including on tribal and allotted lands. 4325. McPherson, Robert S. and David A. Wolff. “Poverty, Politics, and Petroleum: The Utah Navajo and the Aneth Oil Field.” American Indian Quarterly 21 (Summer 1997): 451–70. Discusses the development of, and conflicts spawned by, oil production on the Navajo Nation. There needs to be cooperation from the grassroots up, lest economic development worsen inner-tribal conflicts. 4326. MacDonald, Peter. “Navajo Natural Resources.” In American Indian Environments: Ecological Issues in Native American History, edited by Christopher Vecsey and Robert W. Venables, 162–70. Syracuse, NY: Syracuse University Press, 1980. The Tribal Chairman describes the Navajo Nation’s natural resources, and its energy resources in particular. The tribe has never received fair market value for these resources, mainly because of federal interference and control. 4327. Marsh, Randolph L. “Secretarial Discretion on Communitization of Indian Oil and Gas Leases: The Tenth Circuit Speaks with a Forked Tongue.” Tulsa Law Journal 32 (Summer 1997): 779–99. The Secretary of the Interior has a responsibility to approve oil and gas communitization agreements when trust land is included in a production field but the well is not on trust land. The Tenth Circuit Court of Appeals has issued different decisions on this issue in four separate cases, making it hard to know where the Secretary can turn. 4328. Maxfield, Peter C. “Tribal Control of Indian Mineral Development.” Oregon Law Review 62, no. 1 (1983): 49–72. The 1909 act permits most allottees to lease their lands for mineral development and the 1938 Tribal Mineral Leasing Act expands the scope of reservation mineral leasing. These acts provide very little room for tribal management, but through the provisions of the 1975 Indian Self-Determination and Education Assistance Act or IRA, tribes can write their own regulations, except for coal. Tribes would do no worse than their trustee in this field.

4329. Maxwell, Jean A. “Colvilles on the Verge of Development.” In Native Americans and Energy Development II, edited by Joseph G. Jorgensen, 146–74. Boston, MA: Anthropology Resource Center and Seventh Generation Fund, 1984. A group of Colvilles, called the Preservation of Mount Tolman Alliance, opposes a tribal agreement with AMAX, Inc. to develop a molybdenum mine. Important questions need to be answered about longterm consequences. 4330. Miner, H. Craig. “The Cherokee Oil and Gas Co., 1889–1902: Indian Sovereignty and Economic Change.” Business History Review 46 (Spring 1972): 45–66. This company obtained 740,000 acres of leases on Cherokee lands in Indian Territory. Lack of technical solutions to oil development and Cherokee political divisions over corporate developers led them to question the value of outside development. The revision of the Cherokee mineral act in 1890 began to tighten regulations for oil development permitting Native Americans to sublease lands to an energy corporation. The Curtis Act eight years later began to unravel previous rules and regulations. Cherokees brought suit in 1902 to prevent granting a lease to Cherokee Oil and Gas but the case was dismissed. 4331. Monteau, Richard. “Potential for Indian Natural Resource Development.” In American Indian Lawyer Training Program, ed. Seminar on Indian Natural Resource Law and Finance, 49–55. Oakland, CA: American Indian Lawyer Training Program, 1980. The Northern Cheyenne have refused to sign a coal lease. Instead, the tribe has decided to take it slow, creating the Northern Cheyenne Research Project to determine if and when coal development is in the tribe’s best interest. 4332. Moore, Louis R. “Mineral Development on Indian Lands—Cooperation and Conflict.” Rocky Mountain Mineral Law Institute 28 (1983): 1–77. In the past, mineral operators did business on tribal lands in nearly the same manner as when they exercised mineral leases on the public domain, the only exception being the need to deal with tribal land title issues. Tribal demands for a greater role in reservation economic development, Supreme Court decisions, and the new surge in tribal sovereignty, have caused mineral development on reservations to change greatly. 4333. “Navajo Mineral Development.” American Indian Journal of the Institute for the Development of Indian Law 4 (September 1978): 2–16.

Mineral and Oil Rights and Environmental Issues

Mineral development is crucial to the Navajo future, but mineral developers do not place a high value on tribal taxing powers. Companies would rather treat the Navajos as partners instead of sovereigns. As a result, there are production sharing and service agreements. 4334. Ness, Letitia. “Recent Developments.” American Indian Law Review 24, no. 2 (1999–2000): 487–91. The recent U.S. Supreme Court El Paso Natural Gas Co. v. Neztsosie decision weakens the exhaustion doctrine which requires non-Indians to first seek results in tribal courts before turning to federal courts in civil actions involving tribes or tribal lands. The Amoco Production Co. v. Southern Ute Indian Tribe decision, in which the tribe was denied ownership interests in coal-bed methane gas, is also threatening to tribal sovereignty. 4335. Nordhaus, Robert. “Oil and Gas.” In Seminar on Indian Natural Resource Law and Finance, edited by the American Indian Lawyer Training Program, 121–40. Oakland, CA: American Indian Lawyer Training Program, 1980. The Jicarilla Apache encountered inadequate BIA lease standards, management problems, statutes, and regulations when initiating a tribal oil- and gasexploration program. Bidding hurt the tribe because the BIA is unable to calculate royalty payments. The tribe is entering into joint ventures as new wells are drilled. 4336. O’Gara, Geoffrey. “Canny CERT Gets Respect, Money Problems.” Wassaja/Indian Historian 13 (June 1980): 24–28. CERT offers tribal leaders energy expertise and technical assistance. There are conflicts between CERT’s leaders involving the northern and southern tribes and the older and younger members of the organization, as well as conflicts over values. 4337. Olsen, Dennis M. “Surface Reclamation Regulations on Federal and Indian Mineral Leases and Permits.” Rocky Mountain Mineral Law Institute 17 (1972): 149–69. Discusses reclamation regulations that are and are not applicable to reservation lands. 4338. Owens, Nancy J. “Can Tribes Control Energy Development?” American Indian Journal of the Institute for the Development of Indian Law 5 (January 1979): 3–17. When the 1970s energy markets expanded, tribes were part of that boom, but they did not participate as managers. History demonstrated that when tribes relinquished control of their resources they lost economically.

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4339. Perry, Richard J. “Grounds for Dispute: The San Carlos Apache Mineral Strip.” Oklahoma City University Law Review 23 (Spring and Summer 1998): 43–60. With great hesitation, the San Carlos Apache ceded 232,000 acres of land for mineral exploration. Perry chronicles the Apache’s persistence to regain use of the land and eventual ownership. This was made possible by the law, changing political fortunes, and tribal policies. 4340. Pratt, Raymond B. “Tribal Sovereignty and Resource Exploitation.” Southwest Economy & Society 4 (Spring 1979): 38–74. The large quantities of coal, uranium, and natural gas found on reservations encouraged changes in tribal communities. Tribes have to foster reservation nationalism as they seek sovereignty over these resources. No federal government agencies would help tribes reach this political plateau. 4341. Rees-Jones, Trevor. “Problems in the Development of Mineral Resources on Indian Lands.” Rocky Mountain Mineral Law Institute 7 (1962): 661–705. Discusses the obligations and rights of the mineral, oil, or gas lessee after the lease has been issued. 4342. Reppert, Linda P. “State Taxation of Indian Oil and Gas Leases: Montana v. Blackfeet Tribe of Indians,” Tax Lawyer 40 (Winter 1987): 459–67. Even when non-Indians paid taxes on oil and gas leases within the reservation, the Supreme Court ruled that Congress had not declared any intent for a state to collect a state tax under these conditions. At issue were the 1891 leasing act and the 1924 leasing act that provided for a tax provision, but they were repealed by the 1938 leasing act. 4343. Richardson, Douglas. “Current Federal Policy Issues of Significance to Indian Coal Development.” In American Lawyer Training Program, Seminar on Indian Natural Resource Law and Finance, 109–17. Oakland, CA: American Indian Lawyer Training Program, 1980. The author represents CERT and notes that the Surface Mining Control and Reclamation Act of 1977 provides for a study to determine who should regulate Indian land strip mining. 4344. Richardson, Douglas. “What Happens after the Lease Is Signed?” American Indian Journal 6 (February 1980): 11–17. When tribes sign a mineral or oil lease, environmental issues, and other possible long-term consequences need to be considered. 4345. Robbins, Lynn A. “‘Doing Business with Indian Tribes’: The 1981 Annual Meeting of the Council of

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Energy Resource Tribes.” In Native Americans and Energy Development II, edited by Joseph G. Jorgensen, 52–57. Boston, MA: Anthropology Resource Center and Seventh Generation Fund, 1984. Assesses the themes and organization of CERT’s conference in Denver with a critical eye. The conference revealed that the corporations still hold the power and that CERT tries too hard to cooperate with these outside business interests and with federal policy. 4346. Robbins, Lynn A. “Energy Developments and the Navajo Nation.” In Native Americans and Energy Development, 35–48. Cambridge, MA: Anthropology Resource Center, 1978. Provides related economic and demographic data showing the harmful effects of energy development to date, but stresses the important roles labor unions, the Shiprock Research Center, and tribal government initiatives have played in seeking solutions. 4347. Robbins, Lynn A. “Energy Developments and the Navajo Nation: An Update.” In Native Americans and Energy Development II, edited by Joseph G. Jorgensen, 116–45. Boston, MA: Anthropology Resource Center and Seventh Generation Fund, 1984. The Navajo Nation is still impoverished and energy development continues to remove Navajo resources with little benefit to the people. Navajo responses have improved somewhat since 1978 as the communities become more sophisticated in confronting the issues and with the initiation of related litigation. Lease renegotiations however have failed and the overall outlook is poor. 4348. Robbins, Lynn A. “Navajo Energy Politics.” Social Science Journal 16 (April 1979): 93–119. Examining three cases of Navajo mining, the author notes in one case the chairman can circumvent the BIA, but cannot do the same with the Secretary of the Interior. At the local level in energy politics, the local community was subordinate to the chairman, and in the last case, the chairman sought to decrease unemployment and sought the help of the AFL-CIO and the council reacted in a negative manner. Energy politics reveal divisions between chapter houses, the council, and the chairman. 4349. Robbins, Lynn A. “Structural Changes in Navajo Government Related to Development.” In Economic Development in American Indian Reservations, Development Series No. 1, 129–34. Albuquerque: Native American Studies, University of New Mexico, 1979. Energy and mineral resource developments influenced Navajo governmental structural change. Robbins explains how the Navajo government has gained

greater control over its resources and economic development. 4350. Rosier, Paul C. “Searching for Salvation and Sovereignty: Blackfeet Oil Leasing and the Reconstruction of the Tribe.” In Native Pathways: American Indian Culture and Economic Development in the Twentieth Century, edited by Brian Hosmer and Colleen O’Neill, 27–51. Boulder: University of Colorado Press, 2004. Tribal hopes to gain revenues from oil operations contributed to their adoption of the IRA. “Traditionalists” used the IRA to ensure that oil moneys would be used for the betterment of the tribe as a whole. This case study serves to illustrate the intertwining of tribal culture, politics, and economy and the importance of culture in determination of revenue distribution. 4351. Royster, Judith V. “Equivocal Obligations: The Federal–Tribal Trust Relationship and Conflicts of Interest in the Development of Mineral Resources.” North Dakota Law Review 71, no. 2 (1995): 327–64. The federal government’s trust responsibility to tribal America involves conflict. In the area of mineral development, the Department of the Interior has a trust responsibility to tribes, but often sides with environmentalist. This is the case in spite of the fact that statutes require the Secretary of the Interior to act in the best interests of the tribal people. The article is followed by commentary by William G. Rice, Robert Clinton, Philip S. Deloria, N. Bruce Dutha, and Richard Monette. 4352. Royster, Judith V. “Mineral Development in Indian Country: The Evolution of Tribal Control over Mineral Resources.” Tulsa Law Journal 29 (Spring and Summer 1994): 541–637. Traces the historical development of tribal mineral leasing from seeing Natives as passive observers to active participants. Many tribes have enacted ordinances dealing with environmental issues, regulations, and establishing severance taxes on their minerals. 4353. Royster, Judith V. “Oil and Water in the Indian Country Electric Power Industry.” Natural Resources Journal 37 (Spring 1997): 457–90. Oil and gas have been developed on reservations for decades, but environmental protection came later. With the need for regulation, tribes began to assert their sovereignty to develop authority over their water. As the Sac and Fox underground water disaster demonstrated, tribes cannot depend on the oil and gas industry to protect reservation water sources, nor can they depend on the BIA.

Mineral and Oil Rights and Environmental Issues

4354. Ruffing, Lorraine. “Agenda for Action.” American Indian Journal of the Institute for the Development of Indian Law 7 (July 1980): 14–23. Tribal governments need to end current mineral leases and reestablish their jurisdiction over reservation mineral resources so they can increase revenues, tribal employment, and protect their cultures and environments. 4355. Ruffing, Lorraine. “Fighting the Substandard Lease.” American Indian Journal of the Institute for the Development of Indian Law 6 (June 1980): 2–8. Tribal dependence on mineral leases keeps the tribes from canceling them, making it impossible for CERT to exercise enough power to change current arrangements. Tribal poverty and mining company power prevent tribal royalties from expanding. 4356. Ruffing, Lorraine Turner. “Navajo Mineral Development.” Indian Historian 11 (Spring 1978): 28–41. Despite having great resource wealth, the Navajo Nation has not capitalized on that potential, in part because of poor U.S. negotiating on the tribe’s behalf. It is important for the Navajos to move toward new agreements such as joint ventures. 4357. Ruffing, Lorraine Turner. “Strategy for Asserting Indian Control over Mineral Development.” In Economic Development in American Indian Reservations, Development Series No. 1, 136–44. Albuquerque: Native American Studies, University of New Mexico, 1979. Lays out means, including via an information base and tribal government planning, to gain control in spite of corporate influence and federal policy. 4358. Saugstad, Kathryn. “Indian Coal Authorities: The Concept of Federal Preemption and Independent Tribal Coal Development on the Northern Great Plains.” North Dakota Law Review 53, no. 3 (1977): 469–97. Several northern plains reservations are facing the potential of extensive coal development and leasing under the 1938 Indian Mineral Leasing Act. To gain control over their leases, tribes are seeking to invalidate them and institute a tribal regulatory mechanism. A tribal coal authority could offer the tribes some benefits over the present system. 4359. Scott, Wilfred. “ ‘Energy Resources Tribes Have More to Offer the Nation Than the Usual Hot Air.” Wassaja/The Indian Historian 13 (September 1980): 13–16. CERT took its first battle to Congress in 1980, fighting to exempt tribal governments from an oil windfall profits tax and won. The essay also dis-

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cusses other energy conflicts with which CERT has assisted tribes, mainly among the Navajos, Crows, and Jicarilla Apaches. 4360. Secakuku, Ferrell. “Tribal Sovereignty Gives the People the Opportunity to Invest.” Native Americas 19 (Fall/Winter 2002): 31–34. The author became tribal chairman at Hopi. One of his successes in office is that Peabody Coal Mining Company provides $13–15 million dollars in annual revenues, but people must be careful with mining because of the company’s use of the water resource in a slurry line. 4361. Simonds, Jerome H. “The Acquisition of Rights to Prospect for and Mine Coal from Tribal and Allotted Indian Lands.” Rocky Mountain Mineral Law Institute 21 (1975): 125–62. In June 1974, the Secretary of Interior decided not to stop the current leases, but he refused to approve future leases until tribes and lessees agreed to the lease terms. This decision reveals the changing nature of the ward–guardian relationship where tribes are being more assertive and seeking greater control. 4362. Slade, Lynn H. “Puzzling Powers: Overlapping Jurisdictions of Indian Tribes and the Federal Government, State, and Local Governments in Development of Natural Resources in ‘Indian Country.’” Rocky Mountain Mineral Law Institute 42 (1996): 11-1–11-78. One way that mineral developers can avoid excessive double taxation on reservations is to enter into joint ventures with tribes. Tribal sovereignty will oftentimes prevail if the state challenges the company’s refusal to pay state taxes. 4363. Slade. Lynn H. “Structuring and Financing Natural Resource and Energy Development.” Natural Resources & Environment 7 (Spring 1993): 7–10, 50–52. Describes what a good business agreement with a tribe to develop reservation natural resources should entail. Involved issues include the application of a nation’s trust responsibility and federal laws pertaining to reservations, along with regulations that often discourage development of resources. 4364. Smith, Justine. “Custer Rides Again—This Time on the Exxon Valdez.” In Defending Mother Earth: Native American Perspectives on Environmental Justice, edited by Jace Weaver, 59–71. Maryknoll, NY: Orbis Books, 1996. In 1972, studies were done on tribal lands in Wisconsin that demonstrated the presence of paying quantities of zinc and copper. Exxon Minerals, a subsidiary of Exxon Oil, wanted to extract these minerals, but the Wisconsin Chippewa communities began a campaign

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to stop any mining activities, not only on reservations, but in the state.

CERT improvements in tribal energy resource management.

4365. Sonosky, Marvin J. “Oil, Gas and Other Minerals on Indian Reservations.” Federal Bar Journal 20 (Summer 1960): 230–34. In general terms, the Indian minerals owner is entitled to fair market value. There are two major statutes for reservation mineral leasing, the 1909 and 1938 acts, but the administrative regulations offer some degree of flexibility. The crucial issues are the term of the lease and the royalty rate.

4371. Taylor, Les. “Uranium Exploration, Mining and Milling.” In American Indian Lawyer Training Program, Seminar on Indian Natural Resource Law and Finance, 193–206. Oakland, CA: American Indian Lawyer Training Program, 1980. Because profit margins are small in mining and milling uranium, tribes must be careful to not give too much to the companies. In this area, the BIA has no expertise, thus forcing tribes to look for help from CERT.

4366. Standing Bear, Geoffrey M. “Can the Host Survive Removal of the Parasite?” Kansas Journal of Law & Public Policy 9 (Summer 2000): 807–14. A practicing Osage attorney discusses the historical importance of tribal oil. Federal legislation has resulted in the loss of Osage land and oil. 4367. “State Taxation of Indians’ Royalties from Lease of Tax-Except Tribal Resources.” Yale Law Journal 45 (February 1936): 726–28. The U.S. holds Osage mineral resources in trust by an act of Congress, but the Supreme Court of Oklahoma ruled that the tax was outside a federal instrumentality, thus permitting the state to collect Osage oil royalties. The case was appealed to the Supreme Court. 4368. Stephenson, Barbara. “EIS Uranium Mining operation on Indian Lands Ruled Adequate.” Natural Resources Journal 18 (April 1978): 397–401. The Navajo Tribal Council approved a uraniummining lease with Exxon in 1974. In 1977, the Tenth Circuit Court of Appeals heard the case Manygoats v. Kleppe, where several Navajos claimed that the environmental impact statement was not adequate. The court upheld the EIS as sufficient. 4369. Sullivan, Alan L. “Minimizing the Double Tax Burden on Oil and Gas Production in Indian Country.” Rocky Mountain Mineral Law Institute 36 (1990): 17-1–17-31. Many reservation mineral developers must pay state and tribal severance taxes. Sullivan proposes ways to eliminate or end this double taxation, including congressional legislation to permit energy producers to pay a federal instead of tribal tax and forcing tribes and states to enter into compacts similar to gaming compacts. 4370. Swimmer, Margaret A. “Indian Tribes: SelfDetermination through Effective Management of Natural Resources.” Tulsa Law Journal 17 (Spring 1982): 507–33. Traces the development of tribal energy resources and the creation of CERT in 1975, and attributes to

4372. Thorpe, Grace. “Our Homes Are Not Dumps.” In Defending Mother Earth: Native American Perspectives on Environmental Justice, edited by Jace Weaver, 47–58. Maryknoll, NY: Orbis Books, 1996. Most of the nation’s uranium is mined on tribal lands. This is often the case because tribal poverty has forced reservation leaders to permit mining companies to recover it. Some tribes have said no to mining, but those who have supported uranium mining or even radioactive waste disposal have suffered high rates of cancers. 4373. Viers, Becky J. “Environmental Law: Uranium Mining on the Navajo Reservation.” American Indian Law Review 7, no. 1 (1979): 115–24. Mining uranium provides Navajos with royalties and the U.S. with an important resource, but environment protection efforts have fallen short. The Navajo Tribal Code needs to reflect Navajo environmental concepts and the provisions of NEPA need to be enforced. The current Omnibus Mining Lease Act only provides $2,000 in reclamation support and is clearly not enough for uranium reclamation. 4374. Vollman, Tim. “Exploration and Development Agreements on Indian Lands.” Rocky Mountain Mineral Law Institute 50 (2004): 12-1–12-29. There are opportunities for outside mineral development on reservations. Instead of looking at the federal laws as obstacles, these laws can be seen as providing safety from state tax challenges. Vollman provides suggestions for developers trying to seek work on reservations. 4375. Webster, Michael E. “Mineral Development of Indian Lands: Understanding the Process and Avoiding the Pitfalls.” Rocky Mountain Mineral Law Institute 39 (1993): 2-1–2-72. Mineral development on reservations is important and is different than mineral development on public or state lands. The sovereign status of tribes, state regulatory authority on reservations, and other issues make mineral development on reservations unique.

Mineral and Oil Rights and Environmental Issues

4376. Wilkinson, Charles F. “Home Dance, the Hopi, and Black Mesa Coal: Conquest and Endurance in the American Southwest.” Brigham Young University Law Review 1996, no. 2 (1996): 449–82. From the nineteenth century onward, the Hopi have been fighting encroachment. John Collier’s greatest tribal reorganization blunder was at Hopi, where he believed that the creation of a tribal government would protect the Hopi and allow them to confront the changing world. In 1947, Utah lawyer John Boyden, the Hopi claims attorney, negotiated long-term coal leases for Peabody Coal Company to mine Hopi Black Mesa coal. 4377. Wilson, Richard. “The Present Status of Indian Mineral Resource Development.” Seminar on Indian Natural Resource Law and Finance, American Indian Lawyer Training Program, ed., 25–42. Oakland, CA: American Indian Lawyer Training Program, 1980. The federal government has failed to uphold its trust responsibilities and tribes have had difficulties developing their reservation resources. Regulations need to be rewritten and lease terms need to reflect contemporary conditions. 4378. Wilson, Terry P. The Underground Reservation: Osage Oil. Lincoln: University of Nebraska Press, 1985. In 1881, the Osage wrote a constitution and in 1900 the Commissioner of Indian Affairs abolished it, creating a century-long struggle where the Osage attempted to regain control of their government and their resources. 4379. Wood, Jennifer A. “Administrative Law: The Navajo Nation Defeats Non-Indian Company and Scores

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One for Native American Legal Self-Determination.” Washburn Law Journal 35 (Spring 1996): 376–99. Pittsburg & Midway Coal Mining Company opposed the Navajo Nation’s Business Activity Tax from the “source gains” so the company filed suit. At issue for the court was the tribal abstention doctrine, and the court wanted the tribal court to be the first court of record even though the mine was outside the reservation. 4380. Worthen, Kevin J. “Who’s In Charge Here? Tribal, State, and Federal Authority over Non-Indian Resource Development in Indian Country.” Rocky Mountain Mineral Law Institute 47 (2001): 2-1–2-48. Over the last two decades, the Supreme Court has rendered decisions that restrict tribal authority over non-Indians in Indian Country while at the same time extending state authority onto the reservation. This trend has forced tribal and non-Indian developers to enter into agreements with non-Indians, using the last two decades of court decisions as leverage to gain more favorable terms. The one trend that seems certain is that tribal authority is decreasing over nonIndians in Indian Country. 4381. Young, Lise. “What Price Progress? Uranium Production on Indian Lands in the San Juan Basin.” American Indian Law Review 9, no. 1 (1981): 1–50. Uranium mining has the potential to provide economic assistance to tribes in the San Juan Basin, especially the Navajos, Southern Utes, Mountain Utes, and several pueblos if it is done correctly. Because of the tremendous environmental impacts, federal, state, and county governments must be willing to work with corporate leaders to understand tribal environmental concerns such as water contamination.

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4382. Albert, Steven K. “American Indian Perspectives on the Endangered Species Act.” Buffalo Environmental Law Journal 9 (Spring 2002): 175–88. The bureaucratic maze associated with implementing this act and the threat it may pose to tribal reserved water rights has made tribal leaders wary of it. They believe there are excellent reservation land managers who oversee lands with a high portion of endangered species. Greater tribal–federal cooperation is needed and tribal leaders want greater flexibility in the law’s application.

on federal stewardship of tribal resources and encouraging tribal control over those resources. 4385. American Indian Lawyer Training Program. Seminar on Indian Natural Resource Law and Finance: Summary of Proceedings, May 1979. Oakland: American Indian Lawyer Training Program, 1980. Proceedings cover a range of reservation natural resource topics including legal status of resource management, mining law, and economic development. 4386. Ansson, Richard. “The North American Agreement on Environmental Cooperation and Native American Tribes: How Can Tribal Interests Best Be Protected.” UMKC Law Review 66 (Summer 1998): 837–62. The Environmental Cooperation document was part of NAFTA and was intended to improve environmental laws. Tribes under the IRA, through their corporate charters, and with the federal government enforcing the trust doctrine, should be able to force individuals to comply with the environmental sections of NAFTA through representatives on the Commission on Environmental Cooperation.

4383. Allen, Leslie. “Who Should Control Hazardous Waste on Native American Lands? Looking Beyond Washington Department of Ecology v. EPA.” Ecology Law Quarterly 14, no. 1 (1987): 69–116. In 1976, Congress passed the Resource Conservation and Recovery Act “that encourages states to assume responsibility for hazardous waste activity within their borders.” Washington State wanted authority to regulate reservation hazardous waste and the EPA refused. The Ninth Circuit Court of Appeals upheld the EPA decision since the act does not specify state action on tribal lands. This case is important in the areas of hazardous waste mitigation and tribal sovereignty.

4387. Barsh, Russel Lawrence. “Indian Resources and the National Economy: Business Cycles and Policy Cycles.” Policy Studies Journal 16 (Summer 1988): 799–825. There has been a war for tribal resources—land, timber, water, and oil and gas—because cheap reservation resources fuel American economic prosperity.

4384. Allen, Mark. “Native American Control of Tribal Natural Resource Development in the Context of the Federal Trust and Tribal Self-determination.” Boston College Environmental Affairs Law Review 16, no. 4 (1989): 857–95. Congress practiced its trust responsibility to tribal America by enabling tribal participation in environmental statutes. The Reagan administration’s budget cuts to tribal programs runs counter to the trust relationship obligation. The administration’s close ties to energy companies further infringes on the government’s trust duties. The administration should focus

4388. Bauerlein, Monika. “Prairie Island Revisited: A Minnesota Reservation Fights for a Nuclear-free Future.” Native Americas 12 (Summer 1995): 26–31. Despite losing the battle over the Northern State Power Company nuclear dump, the Prairie Island Sioux were skillful diplomats and they presented an excellent alterative plan for the power company.

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4389. Benischek, Sandra D. “Clean Air in Indian Country: Regulation and Environmental Justice.” Villanova Environmental Law Journal 12, no. 2 (2001): 211–33. The Clean Air Act is important because it deals with air that carries moving pollutants. Tribal, state, and regulated industries can all discuss the role of the Clean Air Act, which provides tribes a role in environmental policy and regulation. 4390. Berlant, Steven H. “Responding to Dangers Posed by Hazardous Substances: An Overview of CERCLA’s Liability and Cost Recovery Provisions as They Relate to Indian Tribes.” American Indian Law Review 15, no. 2 (1990): 279–94. Congress passed the 1980 Comprehensive Environmental Response, Compensation and Liability Act to provide assistance for removing hazardous materials based on the idea that whoever put them there was responsible. This legislation provided tribes with the authority to be active in hazardous waste removal. Lack of funding is one of the major obstacles that tribes must overcome in implementing this authority. 4391. Berman, Samuel. “Tinoqui–Chalola Council of Kitanemuk & Yowlumne Tejon Indians v. U.S. Dept. of Energy: Congress May Implicitly Waive a Requirement of the Endangered Species Act.” University of Baltimore Journal of Environmental Law 7 (Spring 2001): 181–84. This case involved Elk Hills, a large oil field near Bakersfield, California. 4392. Boggs, James P. “NEPA in the Domain of Federal Indian Policy: Social Knowledge and the Negotiation of Meaning.” Boston College Environmental Affairs Law Review 19 (Fall 1991): 31–72. The National Environmental Policy Act of 1969 required environmental impact statements and social impact assessments. The latter are crucial reports for tribal communities. 4393. Buckendorf, Randal G. “FERC Interaction with Fish and Wildlife Agencies in Hydropower Licensing under the Federal Power Act Section 10(j) Consultation Process.” Tulsa Law Journal 27 (Spring 1992): 433–52. Tribes argue that they have been eliminated from the economic and wildlife decision-making process that pertains to tribal lands. They argue that their position should be equal to that of the federal government. 4394. Campbell, Sarah P. “Indian Tribal Sovereignty and the Environment.” University of Richmond Law Review 27 (Winter 1993): 371–97.

Supreme Court decisions over the last decade have impeded tribal sovereignty, especially since the court has consistently trimmed tribal authority. At the same time, some scholars question if tribes are ready to assume domestic sovereignty. 4395. Chino, Wendell. “Comment.” Natural Resources Journal 36 (Fall 1996): 913–19. Chino has served for four decades as tribal chairman of the Mescalero Apache Tribe and is upset that a study of the tribe’s proposed monitored retrievable storage facility did not have tribal input. He also opposes reference to dictatorial tribal leaders. 4396. Churchill, Ward. “American Indian Lands: The Native Ethic and Resource Development.” Environment 28 (July–August 1986): 12–34. Contrasts the tribal worldview that provided sound ecological land practices with non-tribal land practices that have created an environmental crisis. 4397. Clarke, Tracylee. “Constructing Conflict: The Functioning of Synecdoche in the Endangered Wolf Controversy.” Wicazo Sa Review 14 (Spring 1999): 113–27. The Nez Percé have supported and managed a wolf-reintroduction program in Idaho, viewing it as a form of cultural resurgence and as restoring the environment. Opponents argue that it is an economic threat and view it as part of a larger environmental movement threatening their independence. 4398. Clow, Richmond L. and Imre Sutton, eds. Trusteeship in Change: Toward Tribal Autonomy in Resource Management. Boulder: University of Colorado Press, 2001. Essays by various authors on federal–tribal reservation resource management. The Prologue provides a short overview of the changing role of federal agencies and tribal offices in the management of reservation resources. In recent years, tribal operations have assumed a greater role in resource management. 4399. Cluett, Jeffrey R. “Two Sides of the Same Coin: Hazardous Waste Sitting on Indian Reservations and in Minority Communities.” West–Northwest Journal of Environmental Law and Policy 5 (Winter 1999): 191–206. One of the most publicized tribal landfills is the tribally controlled Campo site in San Diego County. 4400. Cochran, Steffani A. “Treating Tribes as States under the Federal Clean Air Act: Congressional Grant of Authority—Federal Preemption—Inherent Tribal Authority.” New Mexico Law Review 26 (Spring 1996): 323–48. The Clean Air Act in 1990 directed the EPA to treat tribes as states when regulating air quality on reser-

Environmental Protection and Natural Resource Management

vations. States and non-Indians opposed this decision, but based on legislative history and the EPA’s interpretation of the act and tribal inherent sovereignty, tribes will continue to regulate reservation air quality. 4401. Cortner, Hanna J. “The Navajo Environmental Protection Commission: Developing the Capabilities for Environmental Assessment and Regulation.” Indian Historian 9 (Winter 1976): 32–37. In discussing energy development and environmental trade-offs, Navajos had little information. The creation of this tribal agency in 1972 by the Navajo Council gave the tribe an organization to provide such information. 4402. Costo, Rupert. “The American Indian and Environmental Issues.” Wassaja/The Indian Historian 12 (June 1979): 51–56. Environmental issues facing tribal nations include land loss through allotment, water rights, and uranium tailings. Negotiations with states have not been successful because the states will not compromise on these issues. 4403. Coursen, David F. “Tribes as States: Indian Tribal Autonomy to Regulate and Enforce Federal Environmental Laws and Regulations.” Environmental Law Reporter: A Project of the Environmental Law Institute 23, 1993: 10579–88. In 1984, the EPA’s decision to treat tribes as states puts into action the agency’s rules and regulations that encourage tribal self-determination and accepts tribes as sovereigns committing the agency to encourage greater tribal responsibility over reservation lands. 4404. Cross, Raymond. “When Brendale Met Chevron: The Role of Federal Courts in the Construction of an Indian Environmental Law.” Great Plains Natural Resources Journal 1 (Spring 1996): 1–43. The Supreme Court, in Brendale v. Yakima Indian Nation, struck the tribe’s exercise of reservationwide zoning authority, fearing hardship for nonmembers living on the reservation. The Chevron court upheld the Confederated Salish and Kootenai Tribes’ authority to administer on-reservation waterquality standards as a state under section 518(e). With these two different outcomes, tribes must work with appropriate federal agencies to achieve home rule because the “future of Indian Environmental Law will be the responsibility of the federal Executive Branch and the Indian tribes—not the federal courts.” 4405. Cutler, Regina. “To Clear the Muddy Water: Tribal Regulatory Authority under Section 518 of the Clean

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Water Act.” Environmental Law 29 (Fall 1999): 721–42. In 1995, the EPA granted the Confederated Salish and Kootenai Tribes treatment-as-state authority under the Clean Water Act that fulfilled Section 518. Montana objected and in Montana v. EPA, the Ninth Circuit Court of Appeals upheld the tribes’ treatment as state status. The court determined that the “EPA properly applied the doctrine of inherent tribal authority, thus extending to the Tribes regulatory authority over nonmembers on fee land within the Reservation” because water regulation may affect tribal health. 4406. Dein, Judith Gail. “State Jurisdiction and OnReservation Affairs: Puyallup Tribe v. Dep’t of Game.” Environmental Affairs 6, no. 4 (1978): 535–64. As the conflict between state and tribal regulation of wildlife escalated in the Pacific Northwest, more cases reached the court. In Puyallup III, the Supreme Court ruled that state regulations could cross reservation boundaries and control tribal resources in the name of conservation. 4407. Deloria, Philip, S. “Indian Natural Resources Issues in an Orderly System.” Natural Resources Journal 41 (Summer 2001): 549–59. Stresses the importance of state–tribal–county cooperation. 4408. Diener, Colleen M. “Natural Resources Management and Species Protection in Indian Country: Alternatives to Imposing Federal and State Enforcement Upon Tribal Governments and Native Americans.” Idaho Law Review 41, no. 1 (2004): 211–45. The Endangered Species Act describes federal and state roles, but “interaction with Native American tribal governments is not defined.” In this vacuum, the development of independent tribal conservation programs has several advantages including the reflection of tribal values, resource protection, and strong support for policies of home rule. Inherent sovereignty and the tribal trust doctrine should not impair tribal hunting and fishing rights. 4409. Donahue, Debra L. “Taking a Hard Look at Mitigation: The Case for the Northwest Indian Rule.” University of Colorado Law Review 59 (Summer 1988): 687–720. The Ninth Circuit Court created the Northwest Indian Rule for EIS mitigation. Instead of listing mitigation, the EIS must present a “discussion of mitigation and its effectiveness.” 4410. Du Bey, Richard A. and James M. Grijalva. “Closing the Circle: Tribal Implementation of the Superfund Program in the Reservation Environment.” Journal

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of Natural Resources & Environmental Law 9, no. 2 (1993–94): 279–96. The U.S. and its agencies have a trust responsibility to protect tribes from pollution. The 1986 Superfund Amendments and Reauthorization Act, Section 126, provided that the EPA must treat tribes as states when carrying out the act’s provisions, thus making the tribes a natural resource trustee. 4411. Du Bey, Richard A. and Jennifer Sanscrainte. “The Role of the Confederated Tribes of the Colville Reservation in Fighting to Protect and Clean-up the Boundary Waters of the United States: A Case Study of the Upper Columbia River and Lake Roosevelt Environment.” Penn State Environmental Law Review 12 (Summer 2004): 335–66. Studies the Federal Columbia River Power System that includes the great dams. The Confederated Tribes have used federal environmental legislation and points of entry to assert their demands for a safe environment. 4412. Du Bey, Richard A., Mervyn T. Tano, and Grant D. Parker. “Protection of the Reservation Environment: Hazardous Waste Management on Indian Lands.” Environmental Law 18 (Spring 1988): 449–504. Without specific state statutory authority, the government implemented federal environmental programs through the EPA, which then passed the responsibility on to tribal governments. The court upheld this practice in Department of Ecology. Some tribes, notably the Northern Cheyenne of Montana, have entered into cooperative agreements with states to enforce tribal environmental ordinances. 4413. Espeland, Wendy Nelson. “Bureaucrats and Indians in a Contemporary Colonial Encounter.” Land & Social Inquiry 26 (Spring 2001): 403–33. The National Environmental Policy Act mandates that federal agencies become more sensitive to the environmental results of dams and irrigation projects. This law changed the Bureau of Reclamation’s way of doing business. The new employees embraced the act and helped the Yavapai to resist the construction of Orme Dam through accommodation. 4414. Fadden, Stephen. “Maine Tribes Reject Nuclear Waste.” Northeast Indian Quarterly 3 (Spring 1986): 9–10. In 1992, the DOE requested potential nuclear waste sites on reservations from the BIA. Several locations were in Maine where local whites joined the tribal communities to protest the placement of any waste site in their communities. 4415. Feldman, Stephen M. “The Developing Test for State Regulatory Jurisdiction in Indian Country: Applica-

tion in the Context of Environmental Law.” Oregon Law Review 61, no. 4 (1982): 561–87. The courts have been consistent in permitting more state authority onto tribal lands. Feldman develops a three-fold test and warns tribes that states will exploit environmental laws to encroach on tribal sovereignty. 4416. Fixico, Donald L. The Invasion of Indian Country in the Twentieth Century: American Capitalism and Tribal Natural Resources. Niwot: University Press of Colorado, 1998. American capitalism has exploited tribes and their natural resources “forcing Indian leadership to adopt modern corporate strategies to ensure the survival of their nations and people.” The book is divided into case histories and topical chapters covering Muscogee Creek allotment, Osage murders and oil, Pueblo water rights, Klamath termination and their timber resources, Chippewa fishing and hunting rights, the Lakota Black Hills controversy, energy resource exploitation, CERT, tribal efforts to protect their resources through litigation, and tribal leadership. 4417. Freedman, Eric. “When Indigenous Rights and Wilderness Collide: Prosecution of Native Americans for Using Motors in Minnesota’s Boundary Waters Canoe Wilderness Area.” American Indian Quarterly 26 (Summer 2002): 378–92. In 1854, the Bois Forte Band of Chippewa ceded land to the U.S. that became the Minnesota Canoe Boundary Waters. More than a century later, a federal court ruled they had hunting and fishing rights on the ceded lands and, in 1998, David Gotchnik used an outboard motor on his canoe in a no-motor area. He was found guilty. 4418. Getches, David H. “A Philosophy of Permanence: The Indians’ Legacy for the West.” Journal of the West 29 (July 1990): 54–68. Tribal successes in resource management provide positive examples for the West. Discussion includes the Pyramid Lake Paiute Tribe’s imaginative legal initiatives in resource management, and, specifically, their struggle to protect Pyramid Lake from the harmful environmental consequences of the Newlands Reclamation Project. Also includes examples of resource management by the Shoshone, Arapahoe, Mescalero Apache, and the Salish and Kootenai tribes. 4419. Gonzales, Tirso A. and Melissa K. Nelson. “Contemporary Native American Responses to Environmental Threats in Indian Country.” In Indigenous Traditions and Ecology: The Interbeing of Cosmology and Community, edited by John A. Grim, 495–538. Cambridge, MA: Harvard University, 2001.

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Studies involving the Mescalero Apache Tribe and the Ward Valley nuclear waste sites demonstrate that tribal nations have moved from a captive nation status to internal colonies. 4420. Gover, Kevin and James B. Cooney. “Cooperation between Tribes and States in Protecting the Environment.” Natural Resources & Environment 10 (Winter 1996): 35–38, 77–78. Because of the enforcement gaps in Indian Country, the environment often suffers, but all would benefit if good compromises were negotiated between tribal and state governments. The authors discuss Montana and several tribal–state compromises to illustrate the importance of cooperation. 4421. Gover, Kevin and Jana L. Walker. “Tribal Environmental Regulation.” Federal Bar News & Journal 36 (November 1989): 438–45. Federal environmental statutes did not address tribal environmental concerns. Congress began to amend these laws providing for government-togovernment relationships between tribes and states. The amended acts removed states’ interests in tribal environmental issues. 4422. Grinde, Donald A. and Bruce E Johansen eds. Ecocide of Native America: Environmental Destruction of Indian Lands and Peoples. Santa Fe, NM: Clear Light Publishers, 1995. Western economic development has come at human and ecological costs to indigenous people and conflicts with Native American views of land as sacred space. The authors examine Navajo livestock reduction, coal and uranium mining on tribal lands, fishing rights disputes, and pollution on the Akwesasne Mohawk Reservation. 4423. Haner, Jennifer Smith. “Tribal Solutions to OnReservation Environmental Offenses: Jurisdictional Parameters, Cultural Considerations, and Recommendations.” American Indian Law Review 19, no. 1 (1994): 105–31. The Campo Band of Mission Indians took a proactive approach to establishing a tribal landfill. Tribally regulated waste sites are not the problems. Illegal waste operations that dump outside tribal regulations pose the greatest threats to reservation health and well-being. Lenient tribal regulations should be tightened. 4424. Harbison, John S. “The Broken Promise Land: An Essay on Native American Sovereignty over Tribal Resources.” Stanford Environmental Law Journal 14 (May 1995): 347–72. Natural resources are tribal property and the continual recognition of tribal sovereignty is essential to cultural survival.

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4425. Harris, Arthur. “Nuclear Waste Management.” In Seminar on Indian Natural Resource Law and Finance, 207–10. Oakland, CA: American Indian Lawyer Training Program, 1980. After the mine shuts down, the mess remains. Tribes are warned about the importance and costs of managing nuclear waste. 4426. Holland, Lauren. “The Use of Litigation in Indian Natural Resource Disputes.” Journal of Energy Law and Policy 10, no. 1 (1989): 33–55. Studies the conditions under which tribes either win or lose natural resource litigation. When tribes win, it is after a long drawn out process, and the number of tribal victories has decreased. 4427. Hovis, Nancy E. “Tribal Involvement under the Nuclear Waste Policy Act of 1982: Education by Participation.” Journal of Environmental Law and Litigation 3 (1988): 45–65. When the Nuclear Waste Policy Act was passed, initial meetings did not include tribal participation. Tribal leaders for the Umatilla, Yakama, and the Nez Percé Reservations voiced their concerns since they were near the Hanford site. Their voices were heard and the tribes used the act to foster a government-togovernment relationship over nuclear waste. 4428. Huffman, James L. “An Exploratory Essay on Native American Injustice and Environmentalism.” University of Colorado Law Review 63, no. 4 (1992): 901–20. Discusses how outsiders often misunderstand tribal environmental ethics and beliefs. 4429. Ishiyama, Noriko. “Environmental Justice and American Indian Tribal Sovereignty: Case Study of a Land Use Conflict in Skull Valley, Utah.” Antipode: A Radical Journal of Geography 35 (January 2003): 119–39. Goshute sovereignty gives them the right to develop a nuclear waste site at Skull Valley. Tribal environmental activists have opposed the site, but they have supported tribal sovereignty. Who has legitimate sovereignty, the tribe or its citizens seeking environmental justice? 4430. Israel, Daniel H. “Drafting Indian Reservation Resource Agreements.” Natural Resources & Environment 3 (Winter 1988): 15–18, 49–51. Outsiders must understand how to negotiate for reservation resources. They must understand the special status of tribal lands and the legislation and regulations governing these resources transactions. 4431. Johansen, Bruce E. “Serpent Swimming West: Yucca Mountain’s 10,000 Year Nuclear Burden.” Native Americas 20 (Fall 2003): 36–41.

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The Western Shoshone opposed the disposal of 77,000 tons of nuclear waste at Yucca Mountain Nevada. Despite tribal and non-tribal opposition, the legislation became law.

vival as farmers in the mold of Americans. The tribe’s timber, water, grass, and fishing resources were taken by squatters who had no right to those reservation resources.

4432. Johnson, Carl H. “Balancing Species Protection with Tribal Sovereignty: What Does the Tribal-Rights Endanger?” Minnesota Law Review 83 (December 1998): 523–64. Congress passed the Endangered Species Act to protect ecosystems and threatened species and placed the Interior and Commerce departments in charge of administering the law. The department secretaries asked for tribal assistance. The ESA does not abrogate treaties, and the ESA administration program benefited from tribal participation.

4437. Kovnat, Ruth L. “Solid Waste Regulation in Indian Country.” New Mexico Law Review 21 (Winter 1990): 121–47. The Resource Conservation and Recovery Act of 1988 mentioned tribes in the section defining “municipality.” The act did not clearly define tribal authority over solid waste enforcement. The law makes tribal communities vulnerable to the hazards of solid wastes and should be amended, making tribes act as states in this area.

4433. Jojola, Theodore S. “Indigenous Planning and Resource Management.” In Trusteeship in Change: Toward Tribal Autonomy in Resource Management, edited by Richmond L. Clow and Imre Sutton, 303–14. Boulder: University of Colorado Press, 2001. Recent conferences, such as the 1992 Community Fellows Program in the Department of Urban Studies and Planning at MIT, have given birth to the Indigenous Planning Network. Instead of being a new movement, this is an offshoot of millennia of traditional tribal resource planning efforts reformatted in a new package. 4434. Juliano, Ann. “Redesignating Tribal Trust Land under Section 164(c) of the Clean Water Act.” Tulsa Law Journal 35 (Fall 1999): 37–54. Indian Country is often excluded from congressional statutes such as the Clean Air Act. These specific acts should be amended to eliminate any exclusion or confusion. 4435. Kanner, Allan. “Tribal Sovereignty and Natural Resource Damages.” Public Land & Resources Law Review 25 (Spring 2004): 93–111. The importance of natural resource damages go beyond mere economic issues for most tribes, forcing tribal leaders to rely on the statutory authority of the Comprehensive Environmental Response, Compensation, and Liability Act and the Clean Water Act. Any tribe seeking a natural resource damage claim must understand the problems that might be encountered. 4436. Knack, Martha C. “A Short Resource History of Pyramid Lake, Nevada.” Ethnohistory 24 (Winter 1977): 47–63. In 1859, H. Dodge, the first Nevada Indian agent, understood the underlying economic forces that were creating conflict between the Paiutes and whites. He recommended creating a reservation to provide resources for the Native Americans to ensure their sur-

4438. Krahe, Diane L. “A Sovereign Prescription for Preservation: The Mission Mountains Tribal Wilderness.” In Trusteeship in Change: Toward Tribal Autonomy in Resource Management, edited by Richmond L. Clow and Imre Sutton, 195–221. Boulder: University of Colorado Press, 2001. The Department of the Interior created a tribal roadless area in the Mission Mountains on the Flathead Reservation in 1937. This roadless area was later declassified and the tribal council authorized logging. Then, following the ideas of the Wilderness Act, the Confederated Salish and Kootenai Tribes created a tribal wilderness on their own terms. 4439. LaDuke, Winona. All Our Relations: Native Struggles for Land and Life. Cambridge, MA: South End Press, 1999. Anthology of essays dealing with Native resistance to environmental and cultural assaults, stressing that where indigenous peoples’ enclaves remain, so too remain enclaves of biodiversity. Essays consider General Motors’s contamination of Mohawk lands; Seminole efforts to protect their culture, the Everglades, and panthers; the Innu on the Nitassinan peninsula in Canada; Northern Cheyenne resistance to destructive coal mining; the dumping of nuclear waste on tribal lands; Anishinaabeg efforts to protect their lands at White Earth; the destruction of buffalo herds in the past and new hopes; recent National Parks Service efforts to evict Native Hawaiians; and the installation of solar power projects on the Hopi Reservation. 4440. Lake, Robert G. “A Program to Train Indians in Natural Resources.” Indian Historian 6 (Winter 1973): 26–28, and 32. The lack of tribal students taking resourced management classes inspired the BIA and the Department of Interior to initiate a program called Reservation Acceleration Program at California State University,

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Humboldt, for tribal students to gain degrees in resource management. 4441. Laurence, Robert. “The Abrogation of Indian Treaties by Federal Statutes Protective of the Environment.” Natural Resources Journal 31 (Fall 1991): 859–86. Discusses the federal self-imposed limitations and requirements that must be met before Congress can abrogate a treaty. The Dion and Billie decisions are discussed, illuminating problems with the Endangered Species Act in the latter and applying the “actual consideration and choice” test in the former. 4442. Laurence, Robert. “American Indians and the Environment: A Legal Primer for Newcomers.” Natural Resources & Environment 7 (Spring 1993): 3–6, 48–50. Despite their small population, tribal Americans will have a large role in the natural resources issues. Because they were here first, they have a practical voice in the use of their extensive resources and they have a moral and legal right to those resources. 4443. LaVelle, John. “Rescuing Paha Sapa: Achieving Environmental Justice by Restoring the Great Grasslands and Returning the Sacred Black Hills to the Great Sioux Nation.” Great Plains Natural Resources Journal 5 (Spring/Summer 2001): 40–101. The Conservation Alliance of the Great Plains can help the Lakota, Dakota, and Nakota people by supporting tribal efforts to escape environmental colonialism. Returning the stewardship of the Black Hills to the tribal nations would assist them in preserving both their cultures and landscapes. 4444. Lewis, Andrea. “Native Americans Struggle for Land, Liberty, and a Toxics-free Environment.” In Beyond Identity Politics: Emerging Social Justice Movements in Communities of Color, edited by John Anner, 137–49. Boston, MA: South End Press, 1996. Discusses tribal council and activist responses to proposals to establish waste dumps on reservation lands and the role tribal sovereignty plays in such decisions. Native activists have built a strong resistance movement but continue to face large obstacles. 4445. Lewis, David Rich. “Native Americans and the Environment: A Survey of Twentieth-Century Issues.” American Indian Quarterly 19 (Summer 1995): 423–50. A synthesis that includes discussions of key court cases affecting tribal control of natural resources. 4446. Light, Alfred R. “Miccosukee Wars in the Everglades: Settlement, Litigation, and Regulation to Restore an Ecosystem.” St. Thomas Law Review 13 (Spring 2001): 729–42.

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In 1994, the Miccosukee Tribe, and others, petitioned the Florida Department of Environmental Protection to reduce agricultural runoff in the Everglades National Park based on the Clean Water Act. The tribe was at odds with the NPS over the issue of housing construction in the Park. Despite past failures to win in court, the Miccosukee used their position to force the court to improve water quality, but this was only the first volley. 4447. Long, Jonathan W. Building Connections: A Strategy to Integrate Resource Management. Harvard Project on American Indian Economic Development, John F. Kennedy School of Government, Cambridge, MA: Harvard University, April 1994. For the White Mountain Apache to maintain sustainable development on the reservation, the tribes must have management over their land resources. Therefore, programs must be created to correct weaknesses in the existing system. Outside and inside pressures must be addressed such as federal regulations, but the tribe’s institutions must be able to minimize any confusion from the new regulations. The tribe needs to reinforce its sovereignty and develop an integrated planning process that works with outside forces. That would also strengthen tribal sovereignty by having the tribe integrate habitat management programs to a habitat approach for management purposes. 4448. Lopp, W. James, II. “The Future of Indian Natural Resource Development.” In Seminar on Indian Natural Resource Law and Finance, 57–63. Oakland, CA: American Indian Lawyer Training Program, 1980. Trends at the moment favor tribes in planning and controlling resource development. Bankers and investors are aware of the growing importance of tribal control and offer their help. 4449. Luckerman, Douglas. “Sovereignty, Jurisdiction, and Environmental Primacy on Tribal Lands.” New England Law Review 37, no. 3 (2002–2003): 635–40. a. Discusses eastern tribal land claims. It is ironic that Maine is concerned that tribes will permit environmental damage to occur on lands that the state formerly regulated. 4450. Mandleco, Sarah. “Surviving a State Challenge to the EPA’s Grant of “Treatment as State” Status to Indian Tribes under the Clean Water Act: One Tribe’s Story State of Wisconsin v. EPA and Sokaogon Chippewa Community.” Wisconsin Environmental Law Journal 8 (Spring 2002): 197–224. The Seventh Circuit Court of Appeals rejected Wisconsin’s 2001 challenge to overturn the Chippewa reservation’s water-quality standards. This decision has potential ramifications beyond the reservation

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because off-reservation polluters’ waters enter the reservation. 4451. Manus, Peter. “Indigenous People’s Environmental Rights: Evolving Common Law Perspectives in Canada, Australia, and the United States.” Boston College Environmental Affairs Law Review 33, no. 1 (2006): 1–86. Traces common law development in three industrial nations and the similar threads of legal questions about indigenous peoples’ environmental rights. The question has emerged, are environmental rights of tribal people translatable into legal rights? 4452. Manus, Peter. “The Owl, the Indian, the Feminist, and the Brother: Environmentalism Encounters the Social Justice Movements.” Boston College Environmental Affairs Law Review 23 (Winter 1996): 249–99. Includes a section on tribal land use and mainstream environmental movements. These movements often employ images of tribal members exploiting the environment. 4453. Martin, Connie Sue Manos. “Spiritual and Cultural Resources as a Component of Tribal Natural Resource Damages Claims.” Public Land & Resources Law Review 20 (1999): 1–12. When the Comprehensive Environmental Response, Compensation, and Liability Act and the Oil Pollution Act were enacted in 1990, Congress included compensatory damage language. Because specific sites within the landscape are important to tribal communities for their rites, tribes should take the “natural resources” damage language and creatively seek damage redress when a monetary amount can be determined. 4454. Matheny, Stephanie D. “Who Can Defend a Federal Regulation? The Ninth Circuit Misapplied Rule 24 by Denying Intervention of Right in Kootenai Tribe of Idaho v. Veneman.” Washington Law Review 78 (November 2003): 1067–1100. President Clinton issued an executive order protecting roadless areas. The Bush administration extended the time before the order went into effect. The Kootenai tribe, along with concerned environmental groups, intervened to push the executive order. The delay was a misapplication of Rule 24 that requires courts to understand the effects of their actions in the interests of those who are absent. 4455. Maxfield, Peter C., Mary Frances Dieterich, and Frank J. Trelease. Natural Resources Law on American Indian Lands. Boulder: Rocky Mountain Mineral Law Foundation, University of Colorado, 1977.

As tribes sought greater control over their own reservation resources, a casebook on tribal resources and lands was necessary. The chapters include Indians and reservations, federal authority, tribal landownership, mineral leasing and operations, and water development. 4456. Meindl, Kristine. “Kootenai Tribe of Idaho v. Veneman: The Roadless Rule: A Dead End or Never Ending Road?” Villanova Environmental Law Journal 14, no. 1 (2003): 151–77. This was an early case involving the Roadless Rule of the National Environmental Protection Act. The Kootenai Tribe and other interest groups sued Secretary of Agriculture Ann Veneman over the validity of the rule, but President Bush postponed the rule after taking office in 2001. The court’s decision weakens the Roadless Rule’s goals. 4457. Milford, Jana B. “Tribal Authority under the Clean Air Act: How Is It Working?” Natural Resources Journal 44 (Winter 2004): 213–42. The Clean Air Act of 1990, with amendments, permits tribes to develop a legal foundation for their reservations’ air quality, but most lack the financial resources to implement programs. Unlike states that are working on transboundary problems, tribes are often without the resources to even begin such planning. 4458. Mirande, Michael. “Tribes, Wildlife, and Compensation.” Natural Resources & Environment 4 (Spring 1990): 10–13, 51. When resource damages occur on a reservation, there are four potential legal theories for tribes to pursue involving two federal environmental acts, treaty and common law, and tribal law. 4459. Monette, Richard A. “Treating Tribes as States under Federal Statutes in the Environmental Arena: Where Laws of Nature and Natural Law Collide.” Vermont Law Review 21 (Fall 1996): 111–44. When tribes enter the legal system, the courts recognize tribal territorial sovereignty and demand a higher standard of due process. Now that the EPA has authorized that tribes be treated as states, suits have been filed in New Mexico and Montana. Tribes should determine if land transactions were consensual and they need to understand conservative voices when dealing with the courts. 4460. Murakami, Judith G. Raumann. “Dances with Waste: Criminal Prosecution of Midnight Dumping in Indian Country.” Western State University Law Review 19 (Spring 1992): 541–59. California is a P.L. 280 state, giving it civil and criminal jurisdiction in Indian Country. Added to that

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law, is the state’s health statutes that provide the state with the authority to prosecute RANPAC Soils for entering the Soboba Reservation and dumping hazardous waste. 4461. Nelkin, Doroth. “Native Americans and Nuclear Power.” Science, Technology, and Human Values 6 (Spring 1981): 2–13. Tribal leaders consider this technology and the associated mining activities as threats to their tribal sovereignty and cultural well-being. 4462. Northard, Scott. “Rebuttal to Natural Resources Journal Environmental Ethics Manuscript by Noah Sachs.” Natural Resources Journal 36 (Fall 1996): 937–41. This response to Sachs’s essay, found in this issue, focuses on the key phrase “that it harmed U.S. nuclear waste disposal policy.” Pushing the problem of waste disposal to the private sector, including tribes, just prolongs resolution of problems that require a government legislative and active response. 4463. O’Neill, Catherine A. “Restoration Affecting Native Resources: The Place of Native Ecological Science.” Arizona Law Review 42 (2000): 343–80. As landscape restoration takes place, it is important to include tribal communities in the decision making process. Not only is their landscape expertise invaluable, but this is also a step toward exercising greater tribal self-rule while protecting their cultural integrity. Co-management and elimination of discrimination against tribal people and their science are needed first steps. 4464. Pavlik, Steve. “San Carlos and White Mountain Apache Attitudes toward the Reintroduction of the Mexican Wolf to Its Historic Range in the American Southwest.” Wicazo Sa Review 14 (Spring 1999): 129–45. The tribes at first opposed the program. These attitudes stem, in part, from tribal concerns about how the program and other federally mandated environmental laws infringe on tribal sovereignty. 4465. Pitt, Kenneth. “‘Eagles and Indians’: The Law and the Survival of a Species.” Public Land Law Review 5 (Spring 1984): 100–109. Congress passed the Eagle Protection Act in 1940 and amended the law in 1962 by adding golden eagles and permitting tribal members to kill eagles for ritual needs. The amended act was intended as a conservation measure. 4466. Pope, Catherine E. “Environmental Law—Federal Indian Law—Recent Developments.” Natural Resources Journal 27 (Summer 1987): 739–55.

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Congress passed the Resource Conservation and Recovery Act to provide states authority to develop environmental protection programs, but not tribes. The Ninth Circuit Court of Appeals decided in 1985 that tribes have the right to enforce hazardous waste plans on reservations and it excludes states from trying to enforce their regulations. 4467. Quinn, William W., Jr. “Federal Environmental and Indian Law Confluent.” Arizona Attorney 29 (December 1992): 19–21, 36. Examines the Clean Air Act, the Clean Water Act, National Environmental Policy Act, and the Solid Waste Disposal Act and whether a tribe can be sued for violating their provisions. They cannot be enforced on tribal lands, unless P.L. 280 has modified these acts giving the tribes and states shared environmental regulatory authority. 4468. Ragsdale, John W., Jr. “Law and Environment in Modern America and among the Hopi Indians: A Comparison of Values.” Harvard Environmental Law Review 10, no. 2 (1986): 417–65. American law encourages free market values to flourish while the environmental movement wants to curb growth. In contrast, the Hopi have no growth issues because there is little emphasis on the individual. Instead they have their own internal conflicts. Despite problems, the values of flexibility, simplicity, and continuity keep the community strong. 4469. Reding, Julie M. “Controlling Blue Skies in Indian Country: Who Is the Air Quality Posse—Tribes or States? The Applicability of the Clean Air Act in Indian Country and on Oklahoma Tribal Lands.” American Indian Law Review 18, no. 1 (1993): 161–90. Until the passage of the 1990 Clean Air Act Amendments, there was no clear-cut authority administering reservation air quality standards. The amendments declared that tribes would fulfill these roles. States, in particular Oklahoma because of its unique history, wanted to continue asserting state regulatory air-quality standards. Despite checkerboard reservations, the tribes are still in the best administrative position. 4470. Robyn, Linda and Thom Alcoze. “The Link between Environmental Policy and the Colonization Process and Its Effects on American Indian Involvement in Crime, Law, and Society.” In Native Americans and the Criminal Justice System, edited by Jeffrey Ian Ross and Larry Gold, 67–84. Boulder, CO: Paradigm Publishers, 2006. Native peoples in the U.S. and Canada have been economically disadvantaged and denied a say in environmental resources management. When they have attempted to resist corporate intrusions on their

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lands, they have often been arrested. The authors stress the importance of Native holistic philosophy. 4471. Rodgers, William H. Environmental Law in Indian Country. St. Paul, MN: Thompson/West, 2005. This case law textbook covers the growing subject of environmental law on reservations. The chapters include topics such as fishing rights, aboriginal rights, treaty rights, environmental protection, environmental impact statements, and the endangered species act. 4472. Rogers, Kristine Olson. “Native American Collaboration in Cultural Resource Protection in the Columbia River Gorge National Scenic Area.” Vermont Law Review 17 (Spring 1993): 741–800. In 1986, Congress enacted the Columbia River Gorge National Scenic Act and federal, local, and state agencies agreed to work with the four tribal communities to protect the cultural and natural resources. Conflict still continued due to the problems associated with development and tribal non-renewable cultural resources. 4473. Royster, Judith V. and Michael C. Blumm, eds. Native American Natural Resources Law: Cases and Materials. Durham, NC: Academic Press, 2002. Casebook including materials on tribal–landscape relationships, resource development, taxation, hunting rights, and environmental protection. 4474. Royster, Judith V. and Rory Snow Arrow Fausett. “Control of the Reservation Environment: Tribal Primacy, Federal Delegation, and the Limits of State Intrusion.” Washington Law Review 64 (July 1989): 581–659. Permitting state authority to govern reservation pollution concerns would diminish tribal sovereignty. To prevent that from happening, the authors propose a multi-layered system for courts to determine that state environmental laws are not applicable on tribal lands. 4475. Ryan, Frank. “Introduction to Federal Agencies and Programs Dealing with Indian Natural Resource Development.” In Seminar on Indian Natural Resource Law and Finance, 403–18. Oakland, CA: American Indian Lawyer Training Program, 1980. Congressional programs developed for tribes are keeping tribal nations underdeveloped and they serve non-Indians better than Indian people. It would cost less to keep the tribal members employed rather than keeping them in a state of dependency and underdevelopment. This would not be difficult as there are programs in federal agencies that provide technical assistance and development advice.

4476. Sachs, Noah. “The Mescalero Apache Indians and Monitored Retrievable Storage of Spent NuclearFuel: A Study in Environmental Ethics.” Natural Resources Journal 36 (Fall 1996): 881–912. The Mescalero Apache leadership supported the waste site. There was a vote to bring this facility to the reservation and with it employment, but concern for core ethics such as sovereignty and selfdetermination defeated it. The site would have hurt the U.S.’s nuclear disposal policy, but if one considered the economics alone, this was not exploitation. 4477. Schaller, David A. “The Applicability of Environmental Statutes to Indian Lands.” American Indian Journal of the Institute for the Development of Indian Law 2 (August 1976): 15–20. Describes the current federal status of environmental legislation among tribes, which creates a burden on the tribes since the laws mainly deal with federal–state relations, providing tribes only limited participation. Adopting legislation that provides for a federal–tribal relationship is necessary. 4478. Schelhas, John. “Race, Ethnicity, and Natural Resources in the United States: A Review.” Natural Resources Journal 42 (Fall 2002): 723–63. Reviews literature discussing the role that the nation’s population diversity has on natural resource development. There is one section on tribal America. 4479. Schnidman, Frank. “Indians and the Environment: An Examination of Jurisdictional Issues Relative to Environmental Management.” Columbia Journal of Environmental Law 4 (Fall 1977): 1–34. Some states claim delegated authority based on P.L. 280, thus spawning environmental battles with tribes. State–tribal cooperation would be a better way to make reservation environmental decisions. 4480. Schwartz, Douglas O. “Indian Rights and Environmental Ethics: Changing Perspectives, and a Modest Proposal.” Environmental Ethics 9 (Winter 1987): 291–302. In the early stages of the white environmental movement, tribal peoples were at the center. Now the environmental movement has opposed tribal hunting and fishing. Instead of taking these rights away, more federal lands should be opened to tribal use. That would help to insure that endangered species would remain unharmed. 4481. Shepherd, Harold. “Conflict Comes to Roost! The Bureau of Reclamation and the Federal Trust Responsibility.” Environmental Law 31 (Fall 2001): 901–49. Since the U.S., rather than individual agencies, entered into a trust relationship with tribal nations, the

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federal trust responsibility falls on all federal agencies. In the American West, the Bureau of Reclamation has often ignored the U.S. trust responsibilities even though it is under the same department as the BIA. The National Environmental Policy Act of 1969 requires that the agency “conduct a full NEPA analysis, which may include implementation of adequate mitigation measures in order to compensate for impacts to tribal interests.” Despite a checkered past, the Bureau of Reclamation is showing signs of increased sensitivity to tribal water needs and those of the ecosystems. 4482. Shrader-Frechette, Kristin. “Environmental Justice and Native Americans: The Mescalero Apache and Monitored Retrievable Storage.” Natural Resources Journal 36 (Fall 1996): 943–54. Criticizes Noah Sachs for such a limited view of environmental ethics, which include human rights and justice. Sachs failed to cite one ethicist and ignored the fact that human rights are grounded in ethics. 4483. Siemann, Dan. Overcoming Conflicts with the Endangered Species Act: Building Tribal Endangered Species Management Capacity, A Report to the White Mountain Apache Tribe. Harvard Project on American Indian Economic Development, John F. Kennedy School of Government, Cambridge, MA: Harvard University, April 1993. On the Fort Apache Reservation, thirty-one threatened or endangered species are found. This fact can limit tribal economic development because of the Endangered Species Act. The tribal government should develop a better strategy for threatened and endangered species. 4484. Silvern, Steven E. “Reclaiming the Reservation: The Geopolitics of Wisconsin Anishinaabe Resource Rights.” American Indian Culture and Research Journal 24, no. 3 (2000): 131–53. Documents Anishinaabe efforts to maintain control over their natural resources on their reservation, and suggests that a useful strategy for doing so is for tribes to take advantage of federal environmental pollution control laws. Tribal efforts to resist state control of on-reservation resources are documented in the article, as is the more recent tribal effort to seek “treatment-as-state” status, and therefore the power of environmental regulation, under the federal Clean Water Act. Historic treaties and court cases related to Anishinaabe harvesting, hunting, and fishing rights are also covered. 4485. Silvern, Steven E. “Tribes, States, the EPA, and the Territorial Politics of Environmental Protection.” In The Tribes and the States: Geographies of Intergovernmental Interaction, edited by Brad A. Bays and

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Erin Hogan Fouberg, 119–38. Lanham, MD: Rowman and Littlefield, 2002. States have opposed EPA and tribal geographical interpretations of the Clean Water and Clean Air Acts attempting to extend their jurisdiction over reservation lands. Negotiations have, however, created alternative and creative forms of tribal and joint state–tribal administration of environmental laws. 4486. Small, Michael. “Indian Protection under the National Environmental Act.” American Indian Journal of the Institute for the Development of Indian Law 5 (June 1979): 19–21. NEPA did not provide tribes any environmental regulatory power. When regulations were drafted to administer the bill, they required EIS on reservations. 4487. Smith, Patrick and Jerry D. Guenther. “Environmental Law: Protecting Clean Air: The Authority of Indian Governments to Regulate Reservation Airsheds.” American Indian Law Review 9, no. 1 (1981): 83–119. Though the courts have not addressed tribal regulation of reservation air quality, the federal selfdetermination policy and the Federal Clean Air Act collectively provide tribal governments with adequate congressional authority, as does their own inherent sovereignty, to develop air-quality standards for reservations. 4488. Stern, Walter E. “Environmental Regulation on Indian Lands: A Business Perspective.” Natural Resources & Environment 7 (Spring 1993): 20–23, 55–56. Despite tribes being simultaneously sovereigns and wards, Congress has mandated that in many environmental areas, tribes will assume greater environmental regulatory authority. State conflicts will result that might necessitate greater tribal–state cooperation on environmental issues. 4489. Stetson, Catherine Baker and Kevin Gover. “CERCLA Liability and Regulation of Solid and Hazardous Waste on Indian Lands.” Natural Resources & Environment 7 (Spring 1993): 24–26, 56–58. Despite the growing tribal environmental regulatory authority, “tribes need express statutory authority to assume formal responsibility for tribal environment programs.” To prevent legal problems, any reservation resource development should proceed as if it were under CERCLA and RCRA liability to protect the tribes. 4490. Stoffle, Richard W. and Michael J. Evans. “American Indians and Nuclear Waste Storage: The Debate at Yucca Mountain, Nevada.” Policy Studies Journal 16 (Summer 1988): 751–67.

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Discusses cultural issues that are surfacing from the Yucca Mountain proposed nuclear waste site.

man rights, they often view human rights as an individual, not a tribal, right.

4491. Suagee, Dean B. “The Application of the National Environmental Policy Act to ‘Development’ in Indian Country.” American Indian Law Review 16, no. 2 (1991): 377–495. NEPA is applicable to reservations. The BIA should provide tribal leaders with NEPA guidance, and at the same time, tribes should adapt a “projectcycle approach” by incorporating NEPA in their development programs.

4496. Suagee, Dean B. and James J. Havard. “Tribal Governments and the Protection of Watersheds and Wetlands in Indian Country.” St. Thomas Law Review 13 (Fall 2000): 35–64. Tribal governments can protect reservation wetlands and watersheds under the federalist system.

4492. Suagee, Dean B. “The Cultural Heritage of American Indian Tribes and the Preservation of Biological Diversity.” Arizona State Law Journal 31 (Summer 1999): 483–538. By preserving indigenous peoples’ human rights, the biodiversity of the landscape will also be preserved. Despite this positive view, there have been many battles involving the Endangered Species Act and tribal nations. To turn the tables in favor of the tribes, there should be a discussion of special responsibilities that go along with special rights. 4493. Suagee, Dean B. “The Supreme Court’s ‘Whack-aMole’ Game Theory in Federal Indian Law, a Theory that Has No Place in the Realm of Environmental Law.” Great Plains Natural Resources Journal 7 (Fall 2002): 90–168. Despite the scholarly condemnation of plenary power over tribal affairs, there is one bright spot, environmental law. “Congress regards this as a subject in which tribes generally do retain inherent sovereignty.” Tribal stewardship in environmental issues might be a way to stop the courts from continually stepping on tribal sovereignty. 4494. Suagee, Dean B. “Tribal Self-Determination and Environmental Federalism: Cultural Values as a Force for Sustainability.” Widener Law Symposium Journal 3 (1998): 229–45. If Congress would return to the foundation of federal Indian law wherein tribes have inherent sovereignty, costly litigation would be avoided, thus freeing up more resources for environmental protection. 4495. Suagee, Dean B. “Turtle’s War Party: An Indian Allegory on Environmental Justice.” Journal of Environmental Law and Litigation 9, no. 2 (1994): 461–97. Examines the reasons for tribal suspicion of environmental groups. The main reason is these organizations do not understand tribal sovereignty nor do they accept the notion of tribal sovereignty. These organizations often do not understand the complexities of federal Indian law. Even when they appreciate hu-

4497. Suagee, Dean B. and John P. Lowndes. “Due Process and Public Participation in Tribal Environmental Programs.” Tulane Environmental Law Journal 13 (Winter 1999): 1–43. Over the past years, more tribes have become involved in environmental federalism. This is a format designed to reduce tensions between states and tribes over reservation environmental issues. Since due process requirements already exist, it only supports public participation. The authors discuss a means to insure that tribal cultural issues and public issues are brought together in decision-making. 4498. Suagee, Dean B. and Patrick A. Parenteau. “Fashioning a Comprehensive Environmental Review Code for Tribal Governments: Institutions and Processes.” American Indian Law Review 21, no. 2 (1997): 297–328. Inherent sovereignty is a tool that tribes can employ to write tribal environmental review processes for reservation lands. Using NEPA as a model, each tribal government could write its own environmental regulations that govern reservation environmental quality known as “TEPA.” 4499. Sutton, Imre. “Indian Cultural, Historical, and Sacred Resources: How Tribes, Trustees, and the Citizenry have Invoked Conservation.” In Trusteeship in Change: Toward Tribal Autonomy in Resource Management, edited by Richmond L. Clow and Imre Sutton, 165–93. Boulder: University of Colorado Press, 2001. Since tribal cultural locations are often found on private, tribal, and public lands, land tenure and jurisdiction are keys in determining a tribes’ ability to manage cultural resources. As a result, tribal cultural resources are often managed by outside entities. 4500. Sutton, Imre. “Tribes and States: A Political Geography of Indian Environmental Jurisdiction.” In Trusteeship in Change: Toward Tribal Autonomy in Resource Management, edited by Richmond L. Clow and Imre Sutton, 239–63. Boulder: University of Colorado Press, 2001. Tribal communities are found inside and outside of Indian Country. This reality makes it difficult for tribes to manage their resources. The courts have at-

Environmental Protection and Natural Resource Management

tempted to sort through the maze that this reality has created only to compound the problems, especially where state, federal, and tribal jurisdictions overlap. To overcome many of these problems, tribes must develop rational environmental planning that includes tribal as well as non-tribal lands. 4501. Tarlock, A. Dan. “Environmental Law and Land Use Control.” In Seminar on Indian Natural Resource Law and Finance, edited by the American Indian Lawyer Training Program, 291–307. Oakland, CA: American Indian Lawyer Training Program, Inc., 1980. Tribes should assume as much responsibility as possible in the area of environmental law and regulation on reservations. Even though P.L. 280 and other local governments may have authority in some areas of reservation land use, tribes must be the authorities. 4502. Thorpe, Grace. “Our Homes Are Not Dumps: Creating Nuclear-Free Zones.” Natural Resources Journal 36 (Fall 1996): 955–63. An emotional explanation for her opposition to the Apache defeated site and other nuclear facilities near tribal communities. 4503. Topper, Martin D. “Environmental Protection in Indian Country: Equity or Self-Determination.” St. John’s Journal of Legal Commentary 9 (Spring 1994): 693–702. Responding to Nixon’s call to strengthen government-to-government relations with tribes, the EPA, in November 1974, adopted regulations that stated the agency’s support for tribal selfdetermination. The best example of government-togovernment cooperation is in the area of reservation commercial waste disposal. Since tribes are sovereign it is imperative that this government-togovernment relationship continue. 4504. “Toward a New System for the Resolution of Indian Resource Claims.” New York University Law Review 47 (December 1972): 1107–49. Tribal improvements depend on tribes’ abilities to maintain and use their reservation resources, but often these resources have not been protected, nor has there been adequate redress in the courts. For tribes to gain relief, the existing structures available to them must be changed, including the courts and the Department of Interior. 4505. VanDevelder, Paul. “A Native Sense of Earth: Treaty Rights and Environmental Standards.” Native America 18 (Spring 2001): 42–49. Tribal communities are linking their treaties’ right to water, the Clean Air Act, and other environmental legislation to their First Amendment Right to practice their religious freedom. They need their landscapes

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free of pollutants to implement their beliefs. One way tribes are doing this is by enacting tough environmental standards for their reservations to preserve their quality of air and water. 4506. Van Zomeren, Barbara R. “Federal Government Liability under CERCLA for Hazardous Substance Disposal in Indian Country.” Hamline Law Review 17 (Spring 1994): 589–623. In 1980, Congress passed the Comprehensive Environmental Response, Compensation, and Liability Act to fund waste cleanup. Because the federal government waived sovereign immunity in this act, and also has a trust relationship with tribal nations, it might be liable for waste cleanups on reservations. 4507. Walker, Jana L., Jennifer L. Bradley, and Timothy J. Humphrey. “A Closer Look at Environmental Injustice in Indian Country.” Seattle Journal for Social Justice 1 (Fall/Winter 2002): 379–401. Letting tribes use their tribal sovereignty is key if tribes are going to achieve environmental justice. 4508. Weaver, Jace, ed. Defending Mother Earth: Native American Perspectives on Environmental Justice. Maryknoll, NY: Orbis Books, 1996. Collection of essays by various authors dealing with traditional ecological knowledge, a theological response to environmental injustice, land values, and mining. 4509. Weaver, Jace. “Triangulated Power and the Environment: Tribes, the Federal Government, and the States.” In Defending Mother Earth: Native American Perspectives on Environmental Justice, edited by Jace Weaver, 107–21. Maryknoll, NY: Orbis Books, 1996. The energy crisis of the 1970s brought an end to the moderately good relationships among state, federal, and tribal governments. This opened the door to the degradation of tribal lands forcing reservation communities to fight for control over their natural resources. 4510. West, W. Richard, Jr. “Environmental Law: Introductory Comments.” In Seminar on Indian Natural Resource Law and Finance, 283–89. Oakland, CA: American Indian Lawyer Training Program, 1980. Discusses the regulatory authority that federal, state, and tribal governments possess and what responsibilities fall under which specific governments. Tribes are urged to develop natural resources and administer those development plans. The more tribes do, the greater their strength under the Williams infringement test. 4511. Wilkinson, Charles. “The Role of Bilateralism in Fulfilling the Federal–Tribal Relationship: The Tribal

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Rights-Endangered Species Secretarial Order.” Washington Law Review 72 (October 1997): 1063–1107. This secretarial order was published in 1997, and represents the work of tribal and federal officials who collectively drafted the measure. This work began at Endangered Species Workshops where members from both the federal agencies and tribal governments gathered to draft the order as a government-togovernment venture that puts forth five principles noting that Indian lands are not public lands and that all federal departments must be sensitive to tribal cultures. 4512. Will, J. Kemper. “Indian Lands Environment—Who Should Protect It.” Natural Resources Journal 18 (July 1978): 465–504. During the flurry of environmental legislation and the creation of EPA, tribes were rarely mentioned, but who can better regulate reservation environmental issues? Tribal authority, even though it has not been discussed in case or statutory law, is in the position to best develop reservation environmental regulations. 4513. Will, J. Kemper. “Supplement B—Comment.” In Seminar on Indian Natural Resource Law and Finance, 309–11. Oakland, CA: American Indian Lawyer Training Program, Inc., 1980. The most serious problem is a non-reservation resident polluting on the reservation given the Supreme Court’s recent Oliphant decision that would take that authority to regulate and prosecute a non-Indian violator. 4514. Williams, John L. “The Effect of EPA’s Designation of Tribes as States on the Five Civilized Tribes in Oklahoma.” Tulsa Law Journal 29 (Winter 1993): 345–59. Within Indian Country, the Five Civilized Tribes have the authority to pass environmental ordinances. A cooperative approach would benefit all, enabling the tribes to act as states. 4515. Williams, Teresa A. “Pollution and Hazardous Waste on Indian Lands: Do Federal Laws Apply and Who May Enforce Them?” American Indian Law Review 17, no. 1 (1992): 269–90. Tribes should control environmental and pollution regulation on their lands. Congress could promote

tribal sovereignty by favoring a move in this direction as legislation comes up for renewal. 4516. Wilson, Patrick Impero. “Wolves, Politics, and the Nez Percé: Wolf Recovery in Central Idaho and the Role of Native Tribes.” Natural Resources Journal 39 (Summer 1993): 543–64. The successful wolf re-introduction in Yellowstone National Park is symbolic of the struggle over western resources pitting federal agencies against state governments for control. The tribe’s role in wolf recovery is an example of the expanding role of tribal governments in tribal and regional resource planning and illustrates the tribes’ ability to manage difficult resources projects. 4517. Wood, Mary Christina. “Fulfilling the Executive’s Trust Responsibility toward the Native Nations on Environmental Issues: A Partial Critique of the Clinton Administration’s Promises and Performances.” Environmental Law 25 (Summer 1995): 733–800. Using the Columbia River Basin and the Endangered Species Act as background, discusses President Clinton’s record in conducting the nation’s trust obligation to tribes. The good work with the Endangered Species Act was a start, but the administration’s attempt to curb tribal fishing activities in favor of conservation was a major flaw. 4518. Wood, Mary Christina. “The Politics of Abundance: Toward a Future of Tribal–State Relations.” Oregon Law Review 83, no. 4 (2004): 1331–47. Text of a lecture given at the University of Oregon stressing the importance of negotiating natural resources between tribes and states. 4519. Zellmer, Sandi B. “Indian Lands as Critical Habitat for Indian Nations and Endangered Species: Tribal Survival and Sovereignty Comes First.” South Dakota Law Review 43, no. 2 (1998): 381–437. In 1997, a Secretary of the Interior order on Tribal Rights, Trust Responsibilities, and Endangered Species instructed agencies to conduct their business in a manner that does not place too great a burden on tribal governments for endangered species management. This order took into account tribal selfdetermination. Endangered species discussions will include tribal consultation.

Chapter 45 Gaming

4520. Adams, Jim. “Gaming’s Flush: High Stakes in Indian Country.” Native Americas 18 (Fall/Winter 2001): 18–27. Only twenty-two tribes account for 56 percent of all gaming revenues. Indian Country is not unanimous in its support of gaming, but all support the reason behind the development of gaming—tribal sovereignty. As they ride the flush time now, they have to prepare for the future by diversifying.

Native Americans are still called “savages” and “uncivilized” and this language is used to deny tribal sovereignty and gaming revenues. 4524. Arnold, Kevin D. “The Indian Gaming Regulatory Act and the Constitution: The Eleventh Amendment’s Impact on Indian Gaming and Entrepreneurship.” Thurgood Marshall Law Review 21 (Fall 1995): 205–27. Surveys background cases preceding IGRA’s passage. After Seminole, the Supreme Court reduced the law’s authority by denying the tribe the right to sue a state for failing to bargain in good faith. So tribes can continue developing gaming, Congress needs to use the Indian Commerce Clause to abrogate the state’s Eleventh Amendment sovereign immunity, amend the act, or eliminate the act and return to the pre-IGRA era.

4521. Ahola, Amber J. “‘Call It the Revenge of the Pequots,’ or How American Indian Tribes Can Sue States under the Indian Gaming Regulatory Act without Violating the Eleventh Amendment.” University of San Francisco Law Review 27 (Summer 1993): 905–58. When a state refuses to negotiate with a tribe over a gaming compact, IGRA provides that the tribes can sue the state. If the suit comes under an Eleventh Amendment exception, there is no violation of state sovereign immunity. The Indian Commerce Clause is a good place to find this exception.

4525. Ashton, Sandra J. “The Role of the National Indian Gaming Commission in the Regulation of Tribal Gaming.” New England Law Review 37, no. 3 (2002–2003): 545–51. A brief descriptive essay.

4522. Anders, Gary C. “Indian Gaming: Financial and Regulatory Issues.” Annals of the American Academy of Political and Social Science 556 (March 1998): 98–108. IGRA requires all gaming revenues to be used for tribal operations such as economic development and assistance. Gaming brings greater revenue and increases tribal power, but may also raise disputes over tribal membership and crime.

4526. Barnes, Richard L. “Indian Gaming: Congress Sends the Tribes into a Constitutional Fray, but Did It Intend To?” Mississippi Law Journal 64 (Winter 1995): 591–633. Congress intended to abrogate state sovereign immunity in IGRA. The courts have not examined Congress’s intent in doing so. Tribes must possess the sovereignty IGRA intended for them.

4523. Andrade, Ronald. “True Lies: Governor Schwarzenegger and other Political Leaders’ Response to Tribal Issues.” American Behavioral Scientist 50 (November 2006): 410–20. California Governor Schwarzenegger puts forth the stereotypical and hypocritical views that nonIndians use to describe California Indian gaming.

4527. Barone, Jackie. “Report of the National Gambling Impact Study Commission.” American Indian Law Review 24, no. 2 (1999–2000): 493–501. Analyzes “some of the more troubling or suspicious” recommendations the commission made regarding tribal gaming. Barone strongly supports tribal gaming. 479

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4528. Bedortha, Christian C. “The House Always Wins: A Look at the Federal Government’s Role in Indian Gaming and the Long Search for Autonomy.” St. Mary’s Law Review on Minority Issues 6 (Spring 2004): 261–86. The tribal gaming industry will enable some tribes to become self-sufficient. One aspect of IGRA that tribes have opposed is the provision providing for compacting because that process undermines tribal sovereignty. 4529. Begay, Manley A., Jr. and Wai-Shan Leung. One Tribe Beats the Odds: The Experience of the Fort McDowell Indian Gaming Center. Harvard Project on American Indian Economic Development, John F. Kennedy School of Government, Cambridge, MA: Harvard University, November 1994. After the 1992 federal gaming regulations went into operation, the FBI closed the Fort McDowell Gaming Center. The confrontation brought pressure on the state to negotiate with the tribe, and that strengthened tribal sovereignty. 4530. Belliveau, James J. “Casino Gambling under the Indian Gaming Regulatory Act: Narragansett Tribal Sovereignty Versus Rhode Island Gambling Laws.” Suffolk University Law Review 27, no. 2 (1993): 389–424. The Narragansett have recently exercised their inherent sovereign right to build a high stakes gaming operation and, in the process, the tribe will circumvent state civil regulations and follow IGRA guidelines. 4531. Bender, Albert. The Native American Gaming War: Federal and State Assault on Native American Sovereignty and Existence. Tucson, AZ: David Yrigoyen Publications, 1994. Analyzes U.S. Indian gaming law and stresses the tribal sovereign right to, and economic benefits of, gaming. The 1992 federal confiscation of tribal slot machines in Arizona is discussed. 4532. Benedict, Jeff. Without Reservation: The Making of America’s Most Powerful Indian Tribe and Foxwoods, the World’s Largest Casino. New York: HarperCollins Publishers, 2000. In 1973, a tribal woman died, leaving behind a trailer and 200 acres. From this ending emerged the Mashantucket Pequot tribe, with a two thousand acre reservation, and the largest casino in the world. The rags-to-riches story involved outside investors, questionable identity, and the price of power. 4533. Berger, Jana M. “Narragansett Tribal Gaming vs. ‘The Indian Giver’: An Alternative Argument to In-

validating the Chafee Amendment.” Gaming Law Review 3 (February 1999): 25–37. The Rhode Island Indian Claims Settlement Act provided the foundation for Narragansett trust lands serving as a door to tribal gaming. The tribe requested gaming negotiations with the governor in 1992 under IGRA. The state wanted to exclude the tribe from any gaming and used senators in Congress to assist the state. Senator John Chafee’s Amendment has given the state gaming jurisdiction over the Narragansett’s lands, thus eliminating their efforts to establish tribal gaming operations. 4534. “Big Valley Band of Pomo Indians v. Superior Court, 2005 Cal. App. LEXIS 1700 (Ct. App. 2005).” Gaming Law Review 9 (December 2005): 648–54. Five tribal casino employees were terminated and they sued for severance pay for being dismissed without cause. The court argued that permitting “a breach of contract action against the Tribe on the basis of the arbitrary clause would enlarge the waiver beyond the language of the clause itself.” As a result, the lower court lacked jurisdiction to hear this case. 4535. Bisset, William T. “Tribal–State Gaming Compact: The Constitutionality of the Indian Gaming Regulatory Act.” Hastings Constitutional Law Quarterly 21 (Fall 1993): 71–93. Tribal leaders opposed the federal government’s decision to make states a party to tribal gaming compacts. At the same time Congress intended IGRA to prevent states from using either the Tenth or Eleventh Amendment protections if cases arose involving IGRA. If states claim protections, they are misinterpreting both the act and the Constitution. 4536. Boger, Carl A., Jr., Daniel Spears, Kara Wolfe, and Li-Chun Lin. “Economic Impacts of Native American Casino Gaming.” In Legalized Casino Gaming in the United States: The Economic and Social Impact, edited by Cathy H. C. Hsu, 135–54. New York: Haworth Hospitality Press, 1999. Offers statistics from various regions to provide a nationwide overview of gaming’s effects. Gaming offers a degree of economic freedom otherwise impossible in many Native communities. 4537. Bolinski, Dorissa. “Mediation Brings Peace to Community.” Dispute Resolution Journal 49 (March 1994): 46, 78. The Mohawk Reservation community was divided over the gambling issue and mediation was important in warding off potential community strife. 4538. Bolton, John J. “Indian Gaming—The First Circuit Interprets the Indian Gaming Regulatory Act: Rhode

Gaming

Island v. Narragansett Indian Tribe.” New Mexico Law Review 25 (Winter 1995): 109–28. The battle over reservation gaming began with the Rhode Island Indian Claims Settlement Act of 1978 in which the tribe gained a money settlement. They purchased land and the Secretary of the Interior, in 1983, recognized them as a tribe. The tribe wanted to open a casino and the state sued and lost. This case did not address the Tenth or Eleventh Amendments in rejecting Rhode Island’s request to be exempt from IGRA. 4539. Boylan, Virginia W. “Indian Gaming—Where Is the Trustee?” Gaming Law Review 1 (September 1997): 341–42. If states failed to negotiate in good faith under IGRA, federal courts could intervene until the Supreme Court ruled in Seminole that IGRA violated the state’s Eleventh Amendment sovereign immunity. Boylan questions why more federal agencies do not examine IGRA as a serious tool for economic development. 4540. Brietzhe, Paul H. and Teresa L. Kline. “The Law and Economics of Native American Casinos.” Nebraska Law Review 78, no. 2 (1999): 263–347. The three sovereigns are tribes, states, and the federal government—and all have a stake in tribal gaming, but winners gain at the expense of losers. The biggest losers are tribal self-determination and sovereignty due to inconsistent court decisions.

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Court. The Secretary of the Interior did not approve the compact within the specific time frame, thus depriving the Kickapoos of a tribal casino. 4543. Burris, Tracy. “How Tribal Gaming Commissions Are Evolving.” Gaming Law Review 8 (August 2004): 243–46. No two states have identical laws that affect tribal–state gaming compacts. Based on IGRA, tribal governments created tribal gaming commissions that have regulatory functions. These commissions are seeking to avoid negative situations and build upon positive experiences. 4544. “Campo Band of Mission Indians v. Superior Court, 137 App. 4th 175 (Cal. Ct. App. 2006).” Gaming Law Review 10 (June 2006): 295–303. In the tribe–state gaming compact, there was a provision for the tribe’s waiver of sovereign immunity for patron negligent claims. The court’s majority claimed that the tribe, by having a $5 million insurance, had waived its sovereign immunity, but the dissenting judge wrote a strong opinion that the tribe had not. 4545. Capers, Tankia Michelle. “The Curtailment of Federal Court Jurisdiction: Seminole Tribe of Florida v. Florida.” Thurgood Marshall Law Review 24 (Fall 1998): 109–47. Politics have historically given the Eleventh Amendment both its force and form. Over time, changing interpretations have prevented the courts from making a sharp division between the Indian Commerce Clause and the Eleventh Amendment. The Supreme Court in Seminole has given the states more power to using the Eleventh Amendment to curtail both federal and tribal authority.

4541. Brosnan, Dolores. “Indian Policy, Indian Gaming, and the Future of Tribal Economic Development.” American Review of Public Administration 26 (June 1996): 213–30. In response to federal cuts in tribal programs, some tribes began gaming operations, notably the Florida Seminoles in 1979, with high stakes bingo, and the Ponca in Oklahoma in 1980. Successful litigation encouraged more tribes to enter gaming and this prompted Congress to pass IGRA in 1988, setting up a conflict between tribal sovereignty and state rights. The success of gaming has encouraged some tribes to create economic enterprise zones.

4546. Carlson, Tim. Untitled article. In Indian Gaming and the Law, edited by William R. Eadington. Reno, NV: Institute for the Study of Gambling and Commercial Gambling, University of Reno, 2004; first printing, 1990, 91–96. The president of the MoVada Group, which has worked with the Fort Mojave tribe, comments on tribal gaming and the proposed Fort Mojave project.

4542. Burr, Lance W. “Broken Promises Revisited: A Story of the Kickapoo Nation—Kansas Gaming Compact.” Washburn Law Journal 32 (Fall 1992): 16–34. IGRA does not spell out whether the governor or the legislature will negotiate and bid in a gaming compact. The governor did the negotiation with the tribe, but the Kansas Attorney General informed the Secretary of the Interior that the governor could not do so. This issue went to the Kansas State Supreme

4547. Carpenter, Kristen A. and Ray Halbritter. “Beyond the Ethnic Umbrella and the Buffalo: Some Thoughts on American Indian Tribes and Gaming.” Gaming Law Review 5 (August 2001): 311–27. Stereotypes about tribal gaming, including its ill effects on tribal identity, can be used to hold tribes economically subordinate. Only as tribes chart their own socioeconomic courses will these gaming stereotypes vanish.

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4548. Carr-Howard, Maxwell. “Tribal–State Relations: Time for Constitutional Stature?” New Mexico Law Review 26 (Spring 1996): 293–321. States often lack the proper mechanisms to implement the tribal–state interactions that IGRA mandates. States should address this dilemma by drafting changes to their constitutions. States without other forms of gaming most need to act. 4549. Cattelino, Jessica R. “Casino Roots: The Cultural Production of Twentieth-Century Seminole Economic Development.” In Native Pathways: American Indian Culture and Economic Development in the Twentieth Century, edited by Brian Hosmer and Colleen O’Neill, 66–90. Boulder: University Press of Colorado, 2004. Seminoles have pursued economic development in ways that reinforce their culture and identity. Casinos did not descend upon them from out of the blue. With cattle, crafts, and alligator wrestling, the Seminoles pursued profits in ways that became essential components of their cultural identity. With cigarettes and casinos, they found ways to gain revenue that helped promote self-determination. 4550. “Century Consultants, Inc. v. Choctaw Racing Services, 2005 U.S. Dist. Lexis 25455 (E.D. Wis. 2005).” Gaming Law Review 9 (December 2005): 645–47. Century Consultants signed a contract with Choctaw Racing Services to provide live visual broadcasts of horse racing throughout Canada and the U.S. This broadcast was to be provided to other tribal casinos in the country. The vender was from Illinois and the Choctaw were in Oklahoma and the issue was the court venue. The court ruled that the proper location was Oklahoma. 4551. Chamblin, Anthony. Untitled article. In Indian Gaming and the Law, edited by William R. Eadington, 79–84. Reno, NV: Institute for the Study of Gambling and Commercial Gambling, University of Reno, 2004; first printing, 1990. The Executive Vice President of the Association of Racing Commissioners International expresses support for IGRA. 4552. Chase, Douglas. “The Indian Gaming Regulatory Act and State Income Taxation of Indian Casinos: Cabazon Band of Mission Indians v. Wilson and County of Yakima v. Yakima Indian Nation.” Tax Lawyer 49 (Fall 1995): 275–84. Reviewing two Ninth Circuit Court of Appeals decisions, the court prevented California from taxing off-reservation racetrack betting on tribal lands, but ruled that IGRA did not prohibit the imposition of such a tax. In the second decision, the court permit-

ted the county to apply its ad valorem fee lands inside the reservation. To protect tribes, Congress should amend IGRA to permit tribes to work toward selfdetermination. 4553. Coleman, Steve J. “Lottery Logistics: The Potential Impact of a State Lottery on Indian Gaming in Oklahoma.” American Indian Law Review 27 (2002– 2003): 515–38. Should the State institute a lottery, it would be compelled to negotiate compacts with local tribes allowing them to conduct their own lotteries. Tribes however will not be in a strong enough economic and organizational position to make such lotteries likely. Both tribes and the State stand to benefit if tribes expanded their gaming operations. 4554. “Colorado River Indian Tribes v. National Indian Gaming Commission et al.” Gaming Law Review 9 (October 2005): 493–513. The tribe has a class-III gaming operation and stopped a National Indian Gaming Commission audit by claiming the agency exceeded its authority, and the agency fined the tribes for ending the audit. The lower federal court issued a summary judgment for the tribe and denied a summary judgment to the NIGC. 4555. “Comanche Indian Tribe of Oklahoma v. L.L.C., U.S. Court of Appeals Tenth Circuit, December 9, 2004.” Gaming Law Review 9 (April 2005): 177–80. The parties agreed to several contractual conditions, including gaming machine leases, and both parties claimed the other violated the contract. The tribe sued, claiming sovereign immunity. The district court ruled that the tribe waived its sovereign immunity. The district court sought arbitration to settle the dispute and, on appeal, the higher court noted that the lower court erred. 4556. “Confederated Tribes of Siletz Indians v. State of Oregon.” Gaming Law Review 2 (August 1998): 439–53. The lower district court ruled that Oregon could not release a state investigative report on the Chinook Winds Casino. The Siletz Tribe appealed and the higher court reversed the lower court decision, refusing to apply the White Mountain preemption rule. 4557. Contreras, Kate Spilde. “Cultivating New Opportunities: Tribal Government Gaming on the Pechanga Reservation.” American Behavioral Scientist 50 (November 2006): 315–54. Gaming has improved the Pechange quality of life and eliminated their dependence upon outside governments. This success has reached beyond the reservation and has created positive relationships with the outside community.

Gaming

4558. Cooper, William Bennett, III. “What’s In the Cards for the Future of Indian Gaming Law?” Villanova Sports & Entertainment Law Journal 5, no. 1 (1998): 129–64. Either the states will gain more power over Indian gaming within their borders or Congress will provide the tribes with more power to manage their gaming operations. The former path seems most likely based on recent case law. If there is less state interference, tribal gaming will prosper. 4559. Cordeiro, Eduardo E. “The Economics of Bingo: Factors Influencing the Success of Bingo Operations on American Indian Reservations.” In What Can Tribes Do? Strategies and Institutions in American Indian Economic Development, edited by Stephen Cornell and Joseph P. Kalt, 207–38. Los Angeles: UCLA American Indian Studies Center, 1992. Statistical analysis drawn from 1986–1987 BIA survey data shows that the density of the nearby gambling population, distance to nearest bingo competitor, and popularity of gaming in the region are the key factors to success, more so than are organizational or internal tribal issues. 4560. Cornell, George. “Indian Gaming: New Impact on Tribal Cultures.” Akwe:kon Journal 11 (Fall and Winter 1994): 151–53. Gaming has already been a part of tribal cultures. The new casinos fit into those traditions and may provide an important component of tribal economic development. 4561. Cox, Amy L. “The New Buffalo: Tribal Gaming as a Means of Subsistence under Attack.” Boston College Environmental Affairs Law Review 25 (Summer 1998): 863–911. The Supreme Court ruling in Seminole Tribe declared that states are immune from tribal suit for failing to negotiate in good faith. One way for tribes to circumvent a state’s refusal to negotiate a gaming compact is “to bring a regulatory taking challenge against the state” and force it to negotiate due to the hardship it has created. 4562. Cox, Michael D. “The Indian Gaming Regulatory Act: An Overview.” St. Thomas Law Review 7 (Summer 1997): 769–89. Describes the background, passage, and current opposition to the act. 4563. Cramer, Renee Ann. “Perceptions of the Process: Indian Gaming as It Affects Federal Tribal Acknowledgement Law and Practices.” Law & Policy 27 (October 2005): 578–605. The federal recognition process has become more political with the advent of high stakes gambling.

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The Branch of Acknowledgement and Research was created in 1978 to provide agency certification of a tribe’s past trust relationship. This has always been a controversial decision. 4564. Crum, Stephen B. “Indian Bingo: Federal Protection of Indian Autonomy.” Loyola of Los Angeles Entertainment Law Journal 8, no. 2 (1988): 391–409. In California v. Cabazon Band of Mission Indians, the court supported congressional efforts to encourage tribal self-determination by prohibiting California from regulating the tribe’s bingo operation despite the state’s argument that P.L. 280 and the Organized Crime Control Act gave it sufficient authority. 4565. Currie, David P. “Response: Ex Parte Young after Seminole Tribe.” New York University Law Review 72 (June 1997): 547–51. Seminole Tribe has not removed Ex Parte Young’s protections, but that truth does not help tribes when states back out of state–tribal gaming compacts. 4566. Darian-Smith, Eve. New Capitalists: Law, Politics, and Identity Surrounding Casino Gaming on Native American Land. Belmont, CA: Wadsworth/Thomson Learning, 2004. Case study intended for classrooms focusing on non-Indian prejudices and perspectives regarding Indian gaming and “rich Indians.” White attitudes regarding the Chumash Indian Casino Expansion Project in California serve as an example. 4567. Darian-Smith, Eve. “Savage Capitalists: Law and Politics Surrounding Indian Casino Operations in California.” Studies in Law, Politics, and Society 26 (2002): 109–37. California voters passed Proposition 5 that approved Las Vegas–style gambling on reservations. This move challenges images of tribal people as “primitive,” while opening casinos on reservations to high stakes gaming, which is contrary to California law, evoking questions of law and sovereignty. 4568. Dempsey, Jeffrey A. “Surfing for Wampum: Federal Regulation of Internet Gambling and Native American Sovereignty.” American Indian Law Review 25, no. 1 (2000–2001): 133–52. A federal Internet gaming ban would be a blow to tribal sovereignty and limit tribal economic growth. A partial ban exempting states and tribes, accompanied by joint regulation between these governments, would be a better option. 4569. Donohue, Gary W. “The Eleventh Amendment: The Supreme Court’s Frustrating Impediment to Sensible Regulation of Indian Gaming.” Wayne Law Review 45 (Spring 1999): 295–326.

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The Supreme Court made an illogical decision in Seminole Tribe v. Florida, 1996, declaring that Congress lacked the authority to abrogate a state’s Eleventh Amendment sovereign immunity. Congress must now appeal or amend IGRA. 4570. Dunstan, Roger. “The Evolution and Impact of Indian Gaming in California.” Gaming Law Review 5 (August 2001): 373–82. California tribes passed through three gaming phases. First were the bingo operations. The second was the post-IGRA act phase when the State refused to negotiate Class-III gaming. The third phase began after the defeat of Proposition 5 and the beginning of large scale Class-III gaming by California tribes. The rise in California tribal gaming produced a drop in Nevada gaming revenues. 4571. Eadington, William R. ed. Indian Gaming and the Law. Reno, NV: Institute for the Study of Gambling and Commercial Gambling, University of Reno, 2004; first printing, 1990. Essays by various authors originally given as papers relating to IGRA at the North American Conference on the Status of Indian Gaming in 1989. Sections include supporters of Indian gaming, alternatives, Canadian observations, and tribal leaders’ observations. 4572. Eadington, William R. Untitled article. In Indian Gaming and the Law, edited by William R. Eadington, 147–60. Reno, NV: Institute for the Study of Gambling and Commercial Gambling, University of Reno, 2004; first printing, 1990. Stresses the value of an economist’s long-term predictions concerning IGRA’s effects. Tribes should view gaming as a short-term window of opportunity that may close by the beginning of the twenty-first century. 4573. “Economic Plans of the Great White Father: A Dismal Failure.” Wassaja/The Indian Historian 13 (September 1980): 21–22. The Seminoles realized that federal programs and assistance would not help their economic plight, so the tribe opened a bingo hall in December 1979 with a daily take of $24,000 to $30,000. Florida wants the tribe to pay gambling taxes, but the tribe has protested, claiming it is a sovereign nation. 4574. Eisler, Kim Issac. Revenge of the Pequots: How a Small Native American Tribe Created the World’s Most Profitable Casino. New York: Simon and Schuster, 2001. History of the Foxwoods casino and the transformation of a landless and dispersed tribe into an economic and political national power.

4575. Eklund, Allsion Fabyanske. “When Winning Is Losing: American Indian Tribal Sovereignty versus State Sovereignty after Seminole Tribe v. Florida.” Hamline Law Review 20 (Fall 1996): 125–66. State and tribal sovereignty exist in natural tension that produced court disputes. Congress should create an alternative forum to litigate between tribes and states so that both can remain strong and sovereign. Trust responsibilities would not be diminished and it might relieve Congress of the burden of passing legislation. 4576. Ewen, Alex. “A Supreme Question of Power: High Court Paves Legal Road to States’ Supremacy.” Native Americans 13 (Summer 1996): 26–29. The Supreme Court ruled in a 5-4 decision that the Seminole Nation cannot sue the state of Florida because the Eleventh Amendment provides states with sovereign immunity. Now the tribe cannot force the state to comply with the federal law. The decision reduced the federal role in tribal gaming and increased the state’s power. 4577. Feinstein, Marc S. “Cheyenne River Sioux Tribe v. Bourland, Indian Gaming, and the State’s Eleventh Amendment Immunity: Where Will the Conflict in the Circuits Fuse?” South Dakota Law Review 39, no. 3 (1994): 604–34. The Eighth Circuit decided in this case that IGRA eliminated a state’s Eleventh Amendment sovereign immunity from tribal suits. On the other hand, the Eleventh Circuit Court of Appeals ruled for the state, necessitating a Supreme Court ruling. 4578. Fenelon, James V. “Indian Gaming: Traditional Perspectives and Cultural Sovereignty.” American Behavioral Scientist 50 (November 2006): 381–410. Examines tribal sovereignty and tribal gaming in the Dakota and Lakota communities. Modernization contributes to change, including economic development. Despite the fast pace of change, gaming’s effects are more positive than negative. 4579. Fenelon, James V. “Traditional and Modern Perspectives on Indian Gaming: The Struggle for Sovereignty.” In Indian Gaming: Who Wins?, edited by Angela Mullis and David Kamper, 108–28. Los Angeles: UCLA American Indian Studies Center, 2000. Tribal conservatives often agree that gaming “was historically condoned and currently acceptable,” but disagree about its modern effects. Gaming has destabilized traditional identities on the Standing Rock, Rosebud, and Pine Ridge reservations and has had both positive and negative consequences. 4580. Firkus, Angela and Donald L. Parman. “Indian Reservation Gaming: Much at Stake.” Organization

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of American Historians: Magazine of History 9 (Summer 1995): 22–27. Briefly surveys litigation, legislation, and tribal concerns. The rise of gaming operations is the “most important development in Indian affairs during the past two decades.” 4581. Fitzpatrick, Brian Casey. “Finding a Fair Forum: Federal Jurisdiction for IGRA Compact Enforcement Actions in Cabazon Band of Mission Indians v. Wilson.” Idaho Law Review 35, no. 1 (1998): 159–78. Cabazon III involves tribes who want to enforce tribal–state gaming compacts. The tribes’ action was proper, but the best forum is a federal court. 4582. French, T. Barton, Jr. “The Indian Gaming Regulatory Act and the Eleventh Amendment: States Assert Sovereign Immunity Defense to Slow the Growth of Indian Gaming.” Washington University Law Quarterly 71 (Fall 1993): 735–72. IGRA’s compacting provision has created tribal–state conflicts when the states invoke their Eleventh Amendment sovereign immunity rights. Most of the federal circuit courts have ruled that Congress abrogated this state right when enacting legislation pursuant to the Indian Commerce Clause. Higher courts should follow the lower court decisions. 4583. Froelich, Cezar M., Michael J. Schaller, and Kristin A. Klaczek. “Invest in Tribal Gaming.” Gaming Law Review 9 (February 2005): 19–25. Management companies that develop casino operations invest in tribal casinos, but new investors are examining the potential to invest in tribal gaming. Both individual investors and venture capital companies are finding the higher risk–higher reward from casino investments attractive. 4584. Fromson, Brett Duval. Hitting the Jackpot: The Inside Story of the Richest Tribe in History. New York: Atlantic Monthly Press, 2003. Narrative account in a journalistic style of how a small group of Pequots, led by Skip Hayward, successfully gained federal recognition and lands and opened the lucrative Foxwoods casino, making them the richest tribe in American. 4585. Garcia, Nora. Untitled article. In Indian Gaming and the Law, edited by William R. Eadington, 87–90. Reno, NV: Institute for the Study of Gambling and Commercial Gambling, University of Reno, 2004; first printing, 1990. The Chairperson of the Fort Mojave tribe in California comments on the process of negotiating gaming compacts with states.

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4586. Garitty, Michael. “California Gaming: Las Vegas Lines Up against Tribes on November Initiative.” Native Americas 15 (Fall 1998): 22–31. California governor Pete Wilson and the Pala Tribal Council signed a gaming compact. This compact represents another tribe participating in the growing California gaming industry, but Las Vegas interests have placed an initiative on the ballot to stop tribal casinos. To protect their interests, California casino tribes have given political contributions to select California candidates. 4587. Gede, Thomas. “Indian Gaming: The State’s View.” In Indian Gaming: Who Wins?, edited by Angela Mullis and David Kamper, 72–79. Los Angeles: American Indian Studies Center, UCLA, 2000. Comments in defense of California’s relations with tribe relative to gaming. Meaningful dialogue with tribes should be maintained. 4588. George, Wendell. Untitled article. In Indian Gaming and the Law, edited by William R. Eadington, 105–10. Reno, NV: Institute for the Study of Gambling and Commercial Gambling, University of Reno, 2004; first printing, 1990. The Chairman of the Colville Confederated Tribes Planning Committee comments on IGRA and its potential effects on tribal sovereignty. He stresses the need for inter-tribal cooperation. 4589. Gerdes, Karen, Maria Napoli, Clinton M. Pattea, and Elizabeth A. Segal. “The Impact of Indian Gaming on Economic Development.” In Pressing Issues of Inequality and American Indian Communities, edited by Elizabeth A. Segal and Keith M. Kilty, 17–30. New York: Haworth Press, 1998. Examples from the Fort McDowell Yavapai Reservations illustrate gaming’s role in enhancing tribal economic opportunities and sovereignty. 4590. Goldberg, Carole E. and Duane Champagne. “Ramona Redeemed? The Rise of Tribal Political Power in California.” Wicazo Sa Review 17 (Spring 2002): 43–63. After more than a century of non-Indian assaults on tribal sovereignty and life (as exemplified in Jackson’s Ramona) in California, and in spite of powerful opposition, tribes in the state prevailed in a difficult struggle to establish casino gaming as an effective means of economic development. As a result of this struggle, tribes have gained a stronger political position in the state. 4591. Goldberg, Carole E. and Indian Law Professors. “Amici Curiae Brief of Indian Law Professors in the Case of Hotel Employees and Restaurant Employees International Union v. Wilson.” In Indian Gaming: Who

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Wins?, edited by Angela Mullis and David Kamper, 54–66. Los Angeles: American Indian Studies Center, UCLA, 2000. Thirteen law professors filed this brief focusing on law issues the court did not address in this California case. IGRA should be interpreted to allow Proposition 5. 4592. Goldin, Nicholas S. “Casting a New Light on Tribal Casino Gaming: Why Congress Should Curtail the Scope of High Stakes Indian Gaming.” Cornell Law Review 84 (March 1999): 798–854. Because gamblers at tribal casinos are day-trippers and reservations are not tourist destinations, gambling is a black hole. To prevent such ongoing tribal problems as poverty, Congress should use its plenary power to reduce tribal Class-III gaming by using a flexible plan that would protect all interests. 4593. Gordon, Chad M. “From Hope to Realization of Dreams: Proposition 5 and California Indian Gaming.” In Indian Gaming: Who Wins?, edited by Angela Mullis and David Kamper, 3–13. Los Angeles: American Indian Studies Center, UCLA, 2000. Arguing that Governor Wilson had negotiated in bad faith, tribes drafted this 1998 ballot initiative aimed at giving federally recognized tribes rights to operate limited Class-III gaming. The initiative passed but its constitutionality was tested in the State Supreme Court, which decided against the tribes. Gordon also considers subsequent tribal relations with Governor Davis. 4594. Grant, Michael. “Seminole Tribe v. Florida—Extinction of the ‘New Buffalo.’” American Indian Law Review 22, no. 1 (1997–98): 171–89. The Supreme Court smashed IGRA’s good faith effort in Seminole Tribe, invoking state sovereign immunity. The court distorted the Constitution and the Founding Fathers’ intents. 4595. Green, Jess. “Economic Development and Gaming.” St. Thomas Law Review 9 (Fall 1996): 149–56. Advocates the monetary benefits that gaming has provided tribal America, in part because tribal governments have to rely on their sovereignty to accomplish what they do. Even as tribal sovereignty is diminished by the courts, gaming remains viable. 4596. Greene, Brian M. “The Reservation Gambling Fury: Modern Indian Uprising or Unfair Restraint on Tribal Sovereignty.” BYU Journal of Public Law 10, no. 1 (1996): 93–116. The opening of the Seminole large stakes bingo parlors in 1979 led to the construction of casinos and the passage of IGRA. To stop the tribes, states have

invoked Eleventh Amendment sovereign immunity defense to any IGRA negotiations. The courts have sided with the states on this issue. IGRA was intended to foster cooperation between states and tribes, but the courts’ adverse decisions have created adversarial relations. 4597. Guzman, Christine. “Indian Gambling on Reservations: Organized Crime or Assimilative Crime.” Arizona Law Review 24, no. 1 (1982): 209–22. In 1970, Congress enacted section 1955, declaring it “a federal crime to operate a large scale gambling business in violation of state law.” In 1978, four Puyallups and five whites were convicted of operating casinos on the reservation without state approval. On appeal in United States v. Farris, the defendants claimed they were not guilty of violating Section 1955. They should have been prosecuted under the Assimilative Crimes Act. 4598. Hadwiger, Don F. “State Governors and American Indian Casino Gaming: Defining State–Tribal Relationships.” Spectrum: Journal of State Government 69 (Fall 1969): 16–25. In 1993, the National Governors Conference asked Congress to amend IGRA. The rise of tribal casinos has increased tensions between states and tribes because tribes threaten to open them in states that outlaw casinos. This conflict also raises sovereignty issues pertaining to the Tenth and Eleventh Amendments. 4599. Harvey, Sioux. “Winning the Sovereignty Jackpot: The Indian Gaming Regulatory Act and the Struggle for Sovereignty.” In Indian Gaming: Who Wins?, edited by Angela Mullis and David Kamper, 14–34. Los Angeles: American Indian Studies Center, UCLA, 2000. Tribes have gained greater self-determination through incorporation into the American political economy. They have done so through increased involvement in the federal policy-making process and forays into entertainment and business by-way-of gaming. The history of Indian gaming, passage of IGRA, and current issues are discussed. 4600. Haslam, Connie K. “Indian Sovereignty: Confusion Prevails.” Washington Law Review 63 (January 1988): 169–93. After years of conflicting sovereignty decisions, the Supreme Court, in California v. Cabazon Band of Mission Indians, ruled that California had no authority to regulate tribal reservation gambling, but never provided clear boundaries or provided a path toward understanding the scope of tribal sovereignty. 4601. Haugen, David M., ed. Legalized Gambling. Detroit, MI: Greenhaven Press, 2006.

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Reference work offering overviews of gaming issues and gaming law and includes a chronology, biographical listings, glossary, and a research guide. Indian gaming is included, with appendices reprinting key cases and including statistical information on tribal operations. 4602. Head, Amy. “The Death of the New Buffalo: The Fifth Circuit Slays Indian Gaming in Texas.” Texas Tech Law Review 34, no. 2 (2003): 377–424. Alabama–Coushatta efforts to open a casino led to Texas litigation that reached the Fifth Circuit Court of Appeals. The court made many errors in the Yeslta decision, including reading the resolution for restoration rather than the actual restoration act itself. This led to a faulty decision used to close the gaming operations. The tribes will have to seek other remedies, including the completion of an agreement with Texas. 4603. Henderson, Eric and Scott Russell. “The Navajo Gaming Referendum: Reservations about Casinos Lead to Popular Rejection of Legalized Gambling.” Human Organization 56 (Fall 1997): 294–301. Navajos are not completely against gambling; there are even traditional rites involving gambling. In the 1994 elections, tribal members voted 54.5 percent against casino style gambling. Voters’ comments ranged from “not needed” to “we need jobs.” The moral group opposing casino gambling’s social costs were the victors. 4604. Hick, Carter W. “The Indian Gaming Regulatory Act: Why Tribes Can Build Casinos off the Reservation.” Gaming Law Review 10 (April 2006): 110–23. Gaming is a profitable tribal venture that also provides economic benefits to states. IGRA, however, limits the tribes’ abilities to operate casinos offreservation. It is crucial that the extent of “Indian lands” is understood by all involved parties. 4605. Hill, Richard. “Rattling the Rafters: High Stakes Gambling Threatens the Peace of the Longhouse.” Northeast Indian Quarterly 5 (Fall 1989): 4–11. The Iroquois introduction of gaming, smoke shops, and bingo increased the numbers of outsiders on the reservations. The issue is that tribal supporters favor these activities for economic development, while the leaders claim that these ventures are inappropriate ways to build an economy. Even though many of the participants are non-Indian, these ventures still take their toll on tribal members. 4606. Horgan, Daniel E. “New York State’s Invitation to Expand Indian Gaming: A Perspective on Gaming in

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the Catskills.” Gaming Law Review 6 (February 2002): 15–19. New York Governor Pataki asked tribes to develop two casinos in the Catskills, one for Senecas based on a prior agreement and the second for the counties of Sullivan and Ulster to restore the area as a destination resort. The Catskill area differs from western New York due to the lack of tribal land claims, and the Catskill invitation is open to several different tribal groups within the state. 4607. Horwitz, William E. “Scope of Gaming under the Indian Gaming Regulatory Act of 1988 after Rumsey v. Wilson: White Buffalo or Brown Cow?” Cardozo Arts and Entertainment Law Journal 14, no. 1 (1996): 153–213. This case began when the Rumsey Indian Rancheria of Wintun Indians joined other bands and sued California Governor Pete Wilson for refusing to negotiate a state–tribal gaming compact. The case reached the Ninth Circuit where the decision between Class-II and Class-III gaming was less than clear, opening the door for Congress to initiate amendments that did not pass. The Ninth Circuit and the Second Circuit had deeply divided opinions regarding Class-III gaming. 4608. Hsu, Cathy H. C. “Social Impacts of Native American Casino Gaming.” In Legalized Casino Gaming in the United States: The Economic and Social Impact, edited by Cathy H. C. Hsu, 221–32. New York: Haworth Hospitality Press, 1999. Little objective research has been conducted to determine the social effect of gaming. Longitudinal studies focusing on long-term effects are needed. 4609. Hyde, George W., III. “The Indian Gaming Regulatory Act of 1988: Did Congress Forget about the Other Commerce Clause.” Thomas M. Cooley Law Review 10, no. 3 (1993): 665–96. Discusses litigation that preceded and followed IGRA. The “most pressing and controversial issue” is whether Congress had the constitutional authority to pass IGRA and violate states’ sovereign immunity. Congress did intend to limit state sovereign immunity, and amending IGRA to exclude the states could eliminate the problem. 4610. Jackson, George, III. “Chickasaw Nation v. United States and the Potential Demise of the Indian Canon of Construction.” American Indian Law Review 27 (2002–2003): 399–420. The Supreme Court decided the case in 2001, ruling that tribes must pay federal wagering excise and occupational taxes on pull-tab gaming revenues. Some tribes fear that the decision indicates that the

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federal government will cease interpreting ambiguous statutes and treaties in favor of tribes. The court misinterpreted the statute in question and failed to apply the Indian canon of construction. 4611. Jackson, Vicki C. “Seminole Tribe, the Eleventh Amendment, and the Potential Evisceration of Ex Parte Young.” New York University Law Review 72 (June 1997): 495–546. Seminole Tribe is “part of a broader canvass on which the Court is redrawing lines of federalism” and since tribes are tied to this federal system via treaties, the case has far-reaching ramifications for tribal– state relations and tribal sovereignty. 4612. Janisch, Roy F. “Sovereignty, Indian Gaming, and Economic Development on the Lake Traverse Reservation of the Sisseton–Wahpeton Sioux Tribe (Oyate).” American Behavioral Scientist 50 (November 2006): 353–73. Their gaming operation allows the tribe to play a role in both on- and off-reservation economic development. The tribe must actively recruit outside enterprises and develop the necessary institutions for development. 4613. Johansen, Bruce E. “Betting on Gaming: New York State Turns to Indian Sovereignty as Economic Rotor.” Native Americas 18 (Fall/Winter 2001): 28–31. Governor Pataki of New York is hoping that tribal gaming will promote New York’s economy that suffered a deep blow following 9–11. The state–Seneca compact has come under attack from many different persons. The Seneca, like their neighbors, are divided on the results, but many Seneca opponents fear loss of sovereignty. 4614. Johansen, Bruce E. “The New York Oneidas: A Business Called a Nation.” In Enduring Legacies, Native American Treaties and Contemporary Controversies, by Bruce E. Johansen, 95–133. Westport, CT: Praeger, 2004. A group of dissident Oneida’s claim that Ray Halbritter and his government “established a business, called it a nation, and acquired the requisite approvals from New York State and the U.S. federal government to open the Turning Stone” casino. Johansen asks whether the financial gains possible from tribal gaming outweigh the costs for those communities. Economic development strategies must take into account traditionalists’ rights. 4615. Johansen, Bruce E. “The New York Oneidas: A Case Study in the Mismatch of Cultural Tradition and Economic Development.” American Indian Culture and Research Journal 26, no. 3 (2002): 25–43.

Documents the New York Oneida’s long debate over gaming and its political consequences. Johansen asks whether gaming is a powerful tool for the promotion of tribal sovereignty, or a threat to tradition and a source of internal totalitarian tribal politics. Oneida tribal dissidents argued that Ray Halbritter’s leadership exemplified the latter. 4616. Johansen, Bruce E. “Open Season on Sovereignty— Again.” Native Americas 20 (Spring 2003): 60–62. Recent news stories claim that tribal gaming is out of control and that Native Americans are super citizens. These represent ongoing attacks on tribal sovereignty. 4617. Johnson, Ronald N. “Indian Casinos: Another Tragedy of the Commons.” In Self-Determination: The Other Path for Native Americans, edited by Terry Lee Anderson, Bruce L. Benson, and Thomas E. Flanagan, 214–41. Palo Alto, CA: Stanford University Press, 2006. In regard to gaming, rather than acting as “a strong sovereign state that protects individual property rights, Indian tribes are more like a commons, subject to internal forces that can lead to dissension and challenge the accumulation and productive use of wealth.” Indian gaming will likely experience continued success, but how well tribes will apply profits for long-term tribal benefit remains in question. 4618. Johnson, Tim. “The Dealer’s Edge: Gaming in the Path of Native America.” Native Americas 12 (Summer 1995): 16–25. Where successful, reservation gaming has been a tremendous tiger for the tribal economy, providing jobs to tribal members and most of the dollars that the tribes receive to operate their reservation programs. The Oneida gaming program serves as an example. 4619. Johnson, Wendy J. “Tribal Gaming Expansion in Oregon.” Willamette Law Review 37 (Spring 2001): 399–432. Describes the historical developments and contemporary standing of tribal gaming in Oregon and the state–tribal relations as both entities participate in the IGRA compacting process. Tribal gaming requires an examination of traditional games, federal and state statues, and court cases. 4620. Jones, Eric D. “The Indian Gaming Regulatory Act: A Forum for Conflict among the Plenary Power of Congress, Tribal Sovereignty, and the Eleventh Amendment.” Vermont Law Review 18 (Fall 1993): 127–72. Congress wanted IGRA to serve as a regulatory mechanism among state, federal, and tribal govern-

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ments. Instead of an amenable forum, the courts have created conflict by deciding adverse tribal sovereignty issues and allowing states to stop tribal casino development. Tribes have few options for redress. 4621. Jordan, David B. “Rolling the Dice on the CyberReservation: The Confluence of Internet Gaming and Federal Indian Law.” American Indian Law Review 24, no. 2 (1999–2000): 455–70. Internet gaming is a new option for tribes seeking economic development and self-determination. Questions still need to be answered about its legal status, including whether people are gambling off- or on-reservation when they are on the internet. The U.S. government needs to clear up this problem. 4622. Jorgensen, Joseph G. “Gaming and Recent American Indian Economic Development.” American Indian Culture and Research Journal 22, no. 3 (1998): 157–72. Gaming is the “most likely source of sustained economic success” and provides revenues that can help tribes take advantage of the Self-Determination Act. 4623. Kading, Linda King. “State Authority to Regulate Gaming within Indian Lands: The Effect of the Indian Gaming Regulatory Act.” Drake Law Review 41, no. 2 (1992): 317–38. Cabazon became the basis for IGRA. State–tribal compacts will not answer all of the questions that will stem from the act’s requirements. Revenues will also be a future issue as both tribal and state officials seek them. 4624. Kalish, Jason. “Do the States Have an Ace in the Hole or Should the Indians Call Their Bluff? Tribes Caught in the Power Struggle between the Federal Government and States.” Arizona Law Review 38, no. 3 (1996): 1345–71. IGRA’s history and operation illustrate the federal government’s authority over tribal nations, but states are trying to usurp federal power for themselves. With gaming compacts, states have tried to control that potential source of economic development. As states continue to make inroads into tribal gaming, Congress should amend IGRA to insure that the law’s intent is realized.

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sion. Harvard Project on American Indian Economic Development, John F. Kennedy School of Government, Cambridge, MA: Harvard University, March 1998. A handful of tribes have earned the bulk of gaming moneys. In 1996, eight tribes received more than one half of the Type III gaming revenues out of 112 tribes with Type III operations. Despite the lack of revenues, these dollars go to tribal governments to meet their operational needs. 4627. Kelly, Joseph M. “Native American Gaming Developments in New York State.” Gaming Law Review 5 (August 2001): 341–50. The Oneidas and Mohawks have casinos in New York and the former is successful. In 1999, the Mohawks, with state approval, amended their compact and installed video lottery terminals. The amendment created concern among many New York residents that the Oneida would use it to extend tribal gaming to the Catskills. The idea of land in trust created great concern and a court restricted Governor Pataki’s decision because it was done without legislative approval. 4628. Kelly, Meghan. “Indian Gaming: Trail of Tears II.” Gaming Law Review 1 (March 1997): 41–48. Tribes have used gaming to enforce economic sovereignty and tribal sovereignty. Despite the success of tribal gaming, there is always the potential backlash. 4629. Kickingbird, Kirke. “American Indians, Bingo and the Law.” American Indian Journal of the Institute for the Development of Indian Law 9 (Spring 1986): 14–19. Reservation bingo operations increased their stakes to attract more outside players. In this way, tribes hoped to raise more revenue and become selfsufficient. This raised the question of whether state laws apply to tribal bingo operations, especially in P.L. 280 states. In their haste to start bingo operations, many tribes do not have bingo laws in place or tribal regulations forcing Congress to consider enacting legislation.

4625. Kallen, Stuart, ed. At Issue: Indian Gaming. Farmington Hills, MI: Greenhaven Press, 2006. Sixteen short essays by various authors debate gaming’s effects on poverty, sovereignty, race relations, and society. Some essays focus on specific tribes, including the Choctaw and California Chumash.

4630. Koenig, K. Alexa. “Gambling on Proposition 1-A: The California Indian Self-Reliance Amendment.” University of San Francisco Law Review 36 (Summer 2002): 1033–65. In the 2000 election, California voters amended the state constitution, Proposition 1-A, removing the antigambling provisions against Las Vegas style gaming, thus opening the door to the state’s 109 federally recognized tribes to enter into gaming compacts.

4626. Kalt, Joseph P. Statement of Professor Joseph P. Kalt before the National Gambling Impact Study Commis-

4631. Kolkema, Jason D. “Federal Policy of Gaming on Newly Acquired Lands and the Threat to State

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Sovereignty: Retaining Gubernatorial Authority over the Federal Approval of Gaming on Off-Reservation Sites.” University of Detroit Mercy Law Review 73 (Winter 1996): 361–90. Tribes must have the right to establish gaming operations on newly acquired lands, but these actions must not be taken at state expense. To preserve tribal autonomy and protect state interests, Congress should not amend section 2719 (b) (1) (A). 4632. Kramer, Kelly B. “Current Issues in Indian Gaming: Casino Lands and Gaming Compacts.” Gaming Law Review 7 (October 2003): 329–34. A tribal casino’s location is important, but most are located on reservations and only three were located on after-acquired lands. To locate a casino on afteracquired lands requires state consent. An exception is on tribal lands obtained from claims. States now look at tribal gaming as a means to bolster sinking state budgets. To receive revenue sharing, the state must provide a benefit to the tribe. Despite congressional intent and department approval, tribal gaming still faces great uncertainties. 4633. Lane, Ambrose I., Sr. Return of the Buffalo: The Story behind America’s Indian Gaming Explosion. Westport, CT: Bergin and Garvey, 1995. Account of the Cabazon Band of Mission Indian’s successful effort to deal with poverty by winning the right to open a casino after the Supreme Court’s 1987 Cabazon decision. 4634. Lent, Eric S. “Are States Beating the House? Validity of Tribal–State Revenue Sharing under the Indian Gaming Regulatory Act.” Georgetown Law Journal 91 (January 2003): 451–76. Examines tribal–state gaming compacts on a stateby-state basis. As more compacts expire, the long arm of the Seminole case will reach into tribal gaming revenues, which is not consistent with IGRA given that it specifically states how tribes are to spend the casino revenues. There are remedies such as amending IGRA and removing the compact language. 4635. Levin, Stephanie A. “Betting on the Land: Indian Gambling and Sovereignty Symposium.” Stanford Law & Policy Review 8 (Winter 1997): 125–39. The rise of reservation casino and high stakes gaming has created conflicts among tribal, state, and federal governments. 4636. Levy, Guy. “Weston Telcon v. California State Lottery: Will Native America Lose Again?” Thomas Jefferson Law Review 19 (Summer 1997): 361–79. California voters passed Proposition 37 in 1984, creating the California State Lottery. Keno is de-

clared illegal under the act since the operator has a stake in the outcome. The casino tribes used Keno since the state lottery used the game. The court ruled that Keno was illegal under the California State Lottery Act and, by extension, to the tribes forcing them to seek further litigation or pursue tribal–state compact negotiations. 4637. Lew, Alan A. and George A. Van Otten, eds. Tourism and Gaming on American Indian Lands. Elmsford, NY: Cognizant Communication, 1998. Surveys the effects of gaming on tribes and nonIndian locals and cautions that it cannot solve all problems and does not benefit all tribes equally. 4638. Lieux, L. Reneé. “Split, Double Down, or Hit Me: An Analysis of the 1993 and 1997 Class III Michigan Gaming Compacts.” University of Detroit Mercy Law Review 76 (Spring 1999): 853–74. Congress has alternated between attempts to encourage and to diminish tribal sovereignty. IGRA illustrates the former while achieving the latter because federal courts have decided that tribes cannot sue states for failing to negotiate in good faith. 4639. Light, Steven A. and Kathryn R. L. Rand. “Are All Bets Off? Off-Reservation Indian Gaming in Wisconsin.” Gaming Law Review 5 (August 2001): 351–63. The Menominees, in 1998, offered $45 million for 89 acres within Kenosha, pending approval from federal and state authorities, but the next year city voters defeated the tribal casino proposal. The tribe offered to abrogate some sovereignty and pay annual monetary installments to the city. The tribe also agreed to close its on-reservation casino and transfer payments electronically to the outsiders. 4640. Light, Steven Andrew and Kathryn R. L. Rand. Indian Gaming & Tribal Sovereignty: The Casino Compromise. Lawrence: University Press of Kansas, 2005. Traces the history of casino gaming on reservations in the context of tribal sovereignty. Negotiations of legal and political compromises to maintain gaming operations are considered. 4641. Light, Steven Andrew and Kathryn R. L. Rand. “The ‘Tribal Loophole’: Federal Campaign Finance Law and Tribal Participation after Jack Abramoff.” Gaming Law Review 10 (June 2006): 230–39. The Abramoff scandal created fears that outsiders were taking advantage of tribes or that tribes were corrupt. The resurrection of these stereotypes has obscured the “tribes’ unique political status and the role of Indian gaming in building effective and responsible tribal governments.”

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4642. Linder-Cornelius, Rebecca S. “The Secretary of the Interior as Referee: The States, The Indian Nations, and How Gambling Led to the Illegality of the Secretary of the Interior’s Regulations in 25 C.F.R. §ß 291.” Marquette Law Review 84 (Spring 2001): 685–99. Discusses the aftermath of the Seminole Tribe case where the Supreme Court upheld the Eleventh Amendment protecting state sovereign immunity against a tribal gaming lawsuit. In the absence of a tribal–state compact, the Secretary of the Interior wrote Class-III gaming regulations. The secretary over-stepped constitutional boundaries in doing so. 4643. Littman, Jonathon. “And the Dealer Stays: Indian Gaming Is a 1990s Gold Rush with Lawyers Leading the Charge.” California Lawyer 131 (January 1993): 44–52. Since the beginning of high stakes gaming, the El Cajon Tribe has not taken a government dollar. They run their own fire and police departments, employ 800 people in their casino, and built a day care center. For those Native communities that can make gaming pay, it can break the cycle of dependency, but it can also increase crime. 4644. Lombardi, Michael and Dave Palermo. “An Emergent Protagonism: The Promise and the Peril of Indian Gaming.” Native Americas 20 (Winter 2003): 34–43. Tribal gaming in California is helping the tribes obtain self-sufficiency. The tribes help local governments pay for costs associated with a casino in their communities, have diversified their economies, and have created a revenue sharing fund to assist tribes without casinos. 4645. Longwitz, Tobi Edwards. “Indian Gaming: Making a New Bet on the Legislative and Executive Branches after IGRA’s Judicial Bust.” Gaming Law Review 7 (June 2003): 197–204. The $10.6 billion in revenue for 2000 forces the 200 tribes operating casinos to protect their economic gaming interests. They have to participate in national politics. Longwitz discusses issues that divide and bring together tribal and non-tribal gaming interests. Only one-third of the tribes are involved in gaming and they do not speak for all tribal nations. 4646. Lonsdale, Linda S. “Indian Law—Economic Development, Gambling on Continued Federal Interest: California v. Cabazon Band of Mission Indians.” New Mexico Law Review 18 (Winter 1988): 623–36. The Supreme Court ruled that California bingo and card games law had no authority over tribal gaming operations despite the application of P.L. 280 and the Organized Crime Act. The court recognized the tie between economic development and federal pol-

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icy and the importance of protecting tribal sovereignty through economic development. 4647. Lorber, Leah L. “State’s Rights, Tribal Sovereignty, and the ‘White’s Firewater’: State Prohibition of Gambling on New Indian Lands.” Indiana Law Journal 69 (Winter 1993): 255–74. The success of casinos near urban centers has forced some tribes to purchase lands off the reservation and place them in trust for the purpose of building a casino. Two bills were introduced in the 100th Congress, one granting governors the right to veto tribal gaming on newly purchased lands. Tribes complained these proposals were attempts to diminish tribal sovereignty. This became a reality when the Department of Interior permitted a state governor to veto a casino on newly acquire trust lands under a 1988 federal statute. 4648. Lorbiecki, Stefanie A. “Indian Sovereignty versus Oklahoma’s Gambling Laws.” Tulsa Law Journal 20 (Summer 1985): 605–33. Oklahoma tribes were fighting for their inherent rights to operate bingo halls and the State contested their claim. Based on Oklahoma’s successful attack on reservation cigarette sales, tribes had to demonstrate that the State’s tax collections were unreasonable and that same logic had to be followed to prevent State inroads into tribal bingo. 4649. Luthey, Graydon Dean, Jr. “Chickasaw Nation v. United States: The Beginning of the End of the Indian-Law Canons in Statutory Cases and the Start of the Judicial Assault on the Trust Relationship.” American Indian Law Review 27, no. 2 (2002–2003): 553–65. The Court in this case dealing with federal taxation of tribal pull-tab gaming “in a clever assault on the primacy of the Indian canons of construction, through an unprecedented reading out of statutory text to avoid ambiguity” advanced an assimilation agenda. 4650. Lyons, Maurice and Anthony Miranda. “A Record of Accomplishment: Native Economies a Boon to California.” Native Americas 20 (Winter 2003): 52–53. Discusses the Morongo Casino, which is located in one of the fastest growing regions in California. With a population to draw on and gaming revenue to fund businesses, the tribe has moved into non-gaming industries. 4651. Lyons, Oren. “Sovereignty and Sacred Land.” St. Thomas Law Review 13 (Fall 2000): 19–28. IGRA diminishes tribal sovereignty by subjecting them to state compacts and federal oversight.

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4652. McClatchey, Brian P. “A Whole New Game: Recognizing the Changing Complexion of Indian Gaming by Removing the ‘Governor’s Veto’ for Gaming on ‘After-Acquired Lands.’” University of Michigan Journal of Law Reform 37 (Summer 2004): 1227–74. With the explosion of Indian gaming enterprises following the passage of IGRA, tribes began to purchase off-reservation lands to place casinos near populations. The act requires that the governor of the state concur. Congress should amend the act to place these newly acquired lands on the same negotiation plane with the states, as are on-reservation casino compacts. 4653. McCulloch, Anne Merline. “The Politics of Indian Gaming: Tribe/State Relations and American Federalism.” Publius, Journal of Federalism 24 (Summer 1994): 99–112. Some tribal operations near urban areas have been large revenue producers. Tribal gaming has created conflicts with states, which have lost power, while tribes and the federal government have gained power in this battle. 4654. McDonnell, Dale L. “Federal and State Regulation of Gambling and Liquor Sales within Indian Country.” Hamline Law Review 8 (October 1985): 599–609. States have limited authority over reservation liquor and gambling operations, but the latter is more complex than the former because Congress has not “delegated authority to the states to regulate gambling activities within Indian Country.” 4655. McFadden, Karen S. “The Stakes Are Too High to Gamble Away Tribal Self-Government, Self-Sufficiency, and Economic Development When Amending the Indian Gaming Act.” Journal of Corporation Law 21 (Summer 1996): 807–26. After Congress passed IGRA, deficiencies were discovered and amendments proposed in 1995. The intent of the original law and amendments was to end conflicts between tribes and states over reservation gaming, but the amendments might erode tribal sovereignty. Most damaging to tribal sovereignty is an amendment limiting a tribe’s right to sue a state in federal court for failing to negotiate a gambling compact in good faith following Seminole Tribe v. Florida. 4656. McKay, Nancy. “The Meaning of Good Faith in the Indian Gaming Regulatory Act.” Gonzaga Law Review 27 (1991/1992): 471–86. In 1991, the Spokane Nation filed suit against the state of Washington for failing to practice good faith. If the state court considers good faith in this conflict

and makes a strong analysis of what good faith means, this case will have great importance. 4657. Mallory, Jeffrey B. “Congress’ Authority to Abrogate a State’s Eleventh Amendment Immunity from Suit: Will Seminole Tribe v. Florida be Seminal?” St. Thomas Law Review 7 (Summer 1997): 791–813. Seminole Tribe v. Florida stopped tribes from suing states for failing to negotiate gaming compacts in good faith. The Commerce Clause of the U.S. Constitution provides Congress with the authority to eliminate state sovereign immunity. Since IGRA was passed to increase tribal autonomy, the Seminole Tribe decision needs to be reconsidered. 4658. Maloney, John. “California’s Tribal–State Gaming Compacts.” Gaming Law Review 3 (August 1999): 311–16. Overview of the tribal gaming compact process in California and the procedures that must be followed to obtain financial backing for the operation of a casino, including the issuance of a Tribal Gaming Agency license. Individuals working for the casino must also obtain gaming licenses. To keep unwanted individuals out of tribal gaming, the tribal, state, and federal agencies must maintain a strong presence. 4659. Maloney, John. “Tribal Gaming in California: How to Negotiate the Regulatory Process.” Gaming Law Review 10 (February 2006): 14–19. Nevada, New Jersey, and Mississippi have traditional state regulatory control over non-Indian gaming, but tribal gaming in California creates an opportunity for domestic and international gaming venders to gain entry into a profitable venture. Many vendors use the tribal compact as a tool to test their products before placing them in other venues. 4660. Marks, Anthony J. “A House of Cards: Has the Federal Government Succeeded in Regulating Indian Gaming?” Loyola of Los Angles Entertainment Law Journal 17, no. 1 (1996): 157–99. Florida’s successful challenge to IGRA based on the Eleventh Amendment protection of state sovereign immunity has prevented tribes from bringing suit against states for not bargaining a tribal–state compact in good faith. If changes are not made, the federal government and states will have once more committed a great injustice against tribal people by revoking one of their economic development programs. 4661. Mason, W. Dale. Indian Gaming: Tribal Sovereignty and American Politics. Norman: University of Oklahoma Press, 2000. Studies gaming in a larger effort to explain the status of tribes in the American political system. Tribes

Gaming

are shown to act as both sovereign political entities and interest groups, as New Mexico tribes have done in their pursuit of gaming rights. The obstacles faced and methods employed by tribes in New Mexico and Oklahoma are shown to be quite different. Tribes are gaining a key source of economic development and, by engaging in the effort to win these rights, are asserting their sovereignty. 4662. Mason, W. Dale. “Tribes, Casinos, and Hardball Politics: Indian Gaming and Its Impact on American Politics.” Gaming Law Review 5 (August 2001): 365–72. Tribal populations were on the margins of the American political system until gaming provided some tribes with funds. From the Pequot to Sandia Pueblo, tribes began to contribute campaign dollars to candidates who would support tribal causes. The National Gambling Impact Study Commission made recommendations that would restrict tribal contributions, but legislation is unlikely to change the current status quo. 4663. Meister, Alan. “Tribal–State Gaming Compacts and Revenue Sharing: A California Case Study.” Gaming Law Review 7 (October 2003): 347–51. In 2003, Governor Gray Davis negotiated one revenue sharing state–tribal gaming compact. The revenue was placed in a Revenue-Sharing Trust Fund as a fixed fee fund and the proceeds were distributed to non-gaming tribes. The State uses the Special Distribution Fund where tribes contribute 13 percent of their nets profits. Despite the profitability of tribal gaming, California has overestimated tribal gaming revenues. 4664. Meltzer, Daniel. “The Seminole Decision and State Sovereign Immunity.” Supreme Court Review (1996): 1–65. It will be regrettable if Seminole is not strongly enforced by the court. 4665. Mezey, Nanomi. “The Distribution of Wealth, Sovereignty and Culture through Indian Gaming.” Stanford Law Review 48 (February 1996): 711–37. IGRA has created wealth for some tribes, but the act’s provisions for reallocating the wealth to the tribal community depend on the reservation’s cultural boundaries. The act did not consider the different cultural models on various reservations and did not strengthen tribal sovereignty. The act forced tribes to surrender sovereignty by entering into compacts that allow states to monitor reservation gaming. 4666. Miller, Jeffery S. “Native American Athletes: Why Gambling on the Future Is a Sure Bet.” Virginia Sport and Entertainment Law Journal 4 (Spring 2005): 239–74.

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If only 1 percent of gaming funds were used to fund tribal athletics, the moneys would provide an opportunity for tribal athletes to better compete with others. These moneys would improve sports facilities that are obstacle themselves. 4667. Mills, John R. Untitled article. In Indian Gaming and the Law, edited by William R. Eadington, 119–32. Reno, NV: Institute for the Study of Gambling and Commercial Gambling, University of Reno, 2004; first printing, 1990. The creation of a “standardized set of minimal internal and external controls such as that now existing in the State of Nevada can go a long way toward providing the solid economic foundation that commercial gaming could bring to the Indian community.” 4668. Mohawk, John C. “Contradictions of the New Buffalo: The Promise and Paradoxes of Indian Economic Development.” Native Americas 18 (Fall/Winter 2001): 56–59. Casinos gave some tribes economic power and now they have to learn how to use it. The rise in casino dollars should stimulate the big question of how a tribe should foster the tie between culture and economic development. 4669. Monsivais, Jose J. “The Return of the White Buffalo: Taxation Issues Facing American Indian Tribes Conducting Gambling Enterprises on Tribal Land.” American Indian Law Review 20 (1995–1996): 399–421. Taxing tribal gambling operations is complex depending on the situation, the individual, the funding source, and the individual’s domicile. Some states may tax a tribal member’s income from casino employment if he or she lives off the reservation. States and the federal government have a more difficult time taxing a tribal enterprise. As long as gaming is successful on reservations, tribes and states should cooperate on taxation issues. 4670. Monteau, Harold A. Untitled article. In Indian Gaming and the Law, edited by William R. Eadington, 111–16. Reno, NV: Institute for the Study of Gambling and Commercial Gambling, University of Reno, 2004; first printing, 1990. The Chippewa–Cree tribal attorney is critical of the conflicts caused by IGRA’s tribal–state compacting requirement. 4671. Moore, Christopher J. “What Is Good for the Goose Is Good for the Gambler: How the Indian Gaming Regulatory Act Fails to Abrogate State Immunity and Protects Tribal Immunity.” Ohio Northern University Law Review 21, no. 4 (1995): 1203–26. The Eighth and Eleventh Circuit Courts of Appeals reached different decisions relative to state

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sovereign immunity from tribal suits related to reservation gambling. This split will be resolved by the Supreme Court. Moore is pessimistic, believing that it will be difficult for tribes to circumvent a state’s Eleventh Amendment sovereign immunity. 4672. Mullis, Angela and David Kamper, eds. Indian Gaming: Who Wins? Los Angeles: American Indian Studies Center, UCLA, 2000. In the introduction to essays by various authors, Kamper points out the irony of tribes having to forfeit some legal sovereignty to gain economic independence. The volume concludes with brief tribal perspectives by Ron Andrade (La Jolla), Mary Ann Andreas (Morongo), Priscilla Hunter (Pomo), Ernie L. Stevens, Jr. (Oneida), and Erma J. Vizenor (Chippewa). 4673. Nelson, Joseph G. “California High Court Strikes Down Indian Gaming in Hotel Employees and Restaurant Employees International Union v. Davis.” In Indian Gaming: Who Wins?, edited by Angela Mullis and David Kamper, 35–53. Los Angeles: American Indian Studies Center, UCLA, 2000. In this case, the court improperly sided with Nevada gaming interests and struck down Proposition 5. The court properly identified the key issue, but rendered an incorrect decision. The State and its gaming tribes subsequently amended the California Constitution in 2000. 4674. Newcomb, Steven. “Fair Share: An Historical Sketch of What Is Owed the Native Peoples of California.” Native Americas 20 (Winter 2004): 22–33. During the 2003 gubernatorial campaign, Arnold Schwarzenegger stated that he wanted tribes to pay more money to the states in the form of revenue sharing. California tribes have given the state so many of their lands and resources that the state owes them instead of the other way around. 4675. Newman, Gregory J. “The Seminole Decision’s Effect on Title IX Claims: Blockading the Path of Least Resistance.” Emory Law Review 46 (Fall 1997): 1739–79. In 1996, the Supreme Court stopped the tribe from suing Florida, claiming Eleventh Amendment state sovereign immunity. The court would not force Florida to negotiate in good faith with the tribe. This ruling has an even broader ramification affecting claims stemming from Title IX of the 1972 Education Act that prohibits discrimination in any education programs. 4676. “Northern Arapaho Tribe v. State of Wyoming, U.S. Court of Appeals Tenth Circuit, November 23, 2004.” Gaming Law Review 9 (April 2005): 172–75.

The tribe believed that the state did not negotiate a gaming compact in good faith. The appellate court agreed that Wyoming did not negotiate in good faith because state officials would not negotiate any game of chance beyond what the state approved for state gaming operations. 4677. Oakley, Christopher Arris. “Indian Gaming and the Eastern Band of Cherokee Indians.” North Carolina Historical Review 78 (April 2001): 133–55. The band opened Harrah’s Cherokee Casino in 1997, after the tribal government entered into an agreement with North Carolina. They had engaged in a bitter struggle against federal, state, and local county government, as well as a struggle within the tribe. 4678. O’Sullivan, Kathleen M. “What Would John Marshall Say? Does the Federal Trust Responsibility Protect Tribal Gambling Revenue?” Georgetown Law Journal 84 (November 1995): 123–50. As long as a tribe can demonstrate under the rules of Mitchell II that federal trust responsibility was violated, the tribe can claim that the federal government did not live up to its trust responsibility. 4679. Pasquaretta, Paul. “On the ‘Indianness’ of Bingo: Gambling and the Native American Community.” Critical Inquiry 20 (Summer 1994): 694–714. IGRA either represents a colonial act or supports tribal identity and tradition. The internal politics of each tribal community in facing external forces determines which statement is true. Gambling has created internal tribal conflicts and has created new unelected tribal leaders who head tribal gaming operations. The gaming issue has created new questions of inherent sovereignty and “Indianness.” 4680. Pavis-Weil, Theta. “Land Links: Native American Land Claims in New York and Casino Gambling.” Gaming Law Review 1 (March 1997): 79–80. The New York Oneida have established a casino, but want to build one off the reservation in Sullivan County. Since there are three Oneida groups in two different states and Canada, the New York Oneida off-reservation casino project may hinge on the settlement of Oneida land claims based on the Trade and Intercourse Acts. 4681. Peacock, Thomas D., Priscilla A. Day and Robert B. Peacock. “At What Cost? The Social Impact of American Indian Gaming.” In Health and the American Indian, edited by Priscilla A. Day and Hilary N. Weaver, 23–34. New York: Haworth Press, Inc., 1999. Studies an unspecified reservation in northern Minnesota and details tribal members’ concerns

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about gaming’s social consequences, including addictions and materialism’s clash with traditional values. Others stress its positive influences, including increased employment opportunities. 4682. Peroff, Nicholas C. “Indian Gaming and the American Indian Criminal Justice System.” In Native Americans and the Criminal Justice System, edited by Jeffrey Ian Ross and Larry Gold, 179–86. Boulder, CO: Paradigm Publishers, 2006. Reviews existing research and finds a direct relationship between Indian casinos and increased crime. Gaming can lead to both positive and negative consequences for tribes. 4683. Peroff, Nicholas C. “Indian Gaming, Tribal Sovereignty, and American Indian Tribes as Complex Adaptive Systems.” American Indian Culture and Research Journal 25, no. 3 (2001): 143–60. Applies complexity theory to demonstrate that Indian gaming can both advance and retard tribal sovereignty. Peroff considers the potential consequences of gaming from a long-term social, environmental, cultural and economic perspective. 4684. Pisca, Jeremy P. “Betting on the Future: The Debate over the Status of Indian Gaming in the State of Idaho.” Idaho Law Review 34, no. 3 (1998): 651–77. Gaming has been a strong economic stimulus for reservation communities in Idaho. There are several conflicts with the state because some tribal casino games are contrary to Idaho’s constitution and it is still debated whether video pull tabs should be considered Class III. 4685. Porter, Robert B. “Indian Gaming Regulation: A Case Study in Neo-Colonialism.” Gaming Law Review 5 (August 2001): 299–309. Contemporary gaming is an inherent tribal sovereign right that began nearly three decades ago with high stakes bingo. IGRA created a new brand of colonialism, placing the federal and states in positions to control tribal gaming. 4686. “Prairie Band of Potawatomi Nation v. Stephen S. Richard, U.S. Court of Appeals Tenth Circuit, December 9, 2004.” Gaming Law Review 9 (April 2005): 181–86. The Potawatomi declared that federal law prohibits Kansas from collecting a state fuel tax on tribal land when a non-Indian supplied the fuel. The appeals court reversed the lower court ruling, claiming that the Kansas Motor Fuel Tax Amendment of 1995 but Kansas’s interest in tax collecting interferes with tribal and federal interest. 4687. Rand, Kathryn R. L. and Steven A. Light. “Do ‘Fish and Chips’ Mix? The Politics of Indian Gaming in

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Wisconsin.” Gaming Law Review 2 (March 1998) 129–42. The Wisconsin conflict should be a warning to tribes that IGRA’s compromise between tribal and state sovereignty failed. After the first compacts were signed, with a seven-year termination date, compact renewal became ugly as the state charged that tribes were growing gaming too fast and there was corruption. The state threw in tribal fishing rights as a bargaining chip to renew reservation gaming casino compacts. 4688. Rand, Kathryn R. L. and Steven A. Light. Indian Gaming Law and Policy. Durham, NC: Carolina Academic Press, 2006. Describes history of, and current legal and political issues surrounding, Indian gaming. Indian gaming, founded in tribal sovereignty and federal law, is complicated and policy-makers must seek the necessary information and respect tribal sovereignty when dealing with this issue. IGRA and subsequent legal developments have led to increased state power over tribal gaming. Other chapters focus on politics and policy-making related to gaming. Extensive appendices reproduce IGRA, include federal regulations, and list Indian gaming regulatory authorities by state and tribe. 4689. Rand, Kathryn R. L. and Steven A. Light. “Raising the Stakes: Tribal Sovereignty and Indian Gaming in North Dakota.” Gaming Law Review 5 (August 2001): 329–40. Critics argue that reservations with casinos are either wealthy or poor. The North Dakota tribes’ casino experiences refute this generalization due to their “modest economic success” because they have “preserved tribal sovereignty and strengthened tribal governments.” The authors describe this as the “Plains Model” where sovereignty comes before monetary wealth. 4690. Rand, Kathryn R. L. and Steven A. Light. “Virtue or Vice: How IGRA Shapes the Politics of Native American Gaming, Sovereignty, and Identity.” Virginia Journal of Social Policy and Law 4 (Winter 1997): 381–437. Indian gaming is becoming an important economic boon for many tribes. Gaming also has cultural ramifications and there is a tradeoff for tribes who must accept greater federal and state control. 4691. Reid, Harry. Untitled article. In Indian Gaming and the Law, edited by William R. Eadington, 15–20. Reno, NV: Institute for the Study of Gambling and Commercial Gambling, University of Reno, 2004; first printing, 1990.

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Predicts that the social ills resulting from expanded Indian gaming after IGRA will outweigh the economic benefits. If the new law is to work as intended, all involved parties must cooperate and respect the compromises it enacts. 4692. Ridgeway, Michael. “The Potawatomi/Oklahoma Gaming Compact of 1992: Have Two Sovereigns Achieved a Meeting of the Minds?” American Indian Law Review 18, no. 1 (1993): 515–37. Oklahoma is circumventing IGRA by claiming that video lottery terminals violate the Johnson Act. Litigation began and the lower courts protected the state’s Eleventh Amendment sovereign immunity claims, thus placing tribal gaming on shaky ground. 4693. Riga, Joseph F. “State Immunity in Bankruptcy after Seminole Tribe v. Florida.” Seton Hall Law Review 28, no. 1 (1997): 29–74. The Supreme Court’s decision went beyond denying the tribe’s ability to sue Florida. The decision has ramifications for bankruptcy proceedings as well. 4694. Ritchie, James E. Untitled article. In Indian Gaming and the Law, edited by William R. Eadington, 69–72. Reno, NV: Institute for the Study of Gambling and Commercial Gambling, University of Reno, 2004; first printing, 1990. Is optimistic about IGRA and comments on the necessary regulatory systems that will be required by the legislation. 4695. Rose, I. Nelson. “Gambling and the Law: The Threat of Reservation Shopping.” Gaming Law Review 9 (December 2005): 567–69. The idea of tribes shopping for better casino locations concerns antigaming groups. The reality is that there are many steps that a tribal government must satisfy before it can build a reservation casino within a large city. 4696. Rose, I. Nelson. “Gambling and the Law: Will California Tribes Get (Legal) Slots?” Gaming Law Review 1 (December 1997): 473–74. Tribal gaming in California has been operating during Governor Wilson’s administration without a state compact, and the U.S. Attorney General in 1994 ordered all non-compact Class III machines removed from tribal casinos. Several U.S. attorneys demonstrated their independence and did not pursue that order and three years later there are between 12,000 and 14,000 non-compacted Class-III gaming machines operating in California. 4697. Rose, I. Nelson. Untitled article. In Indian Gaming and the Law, edited by William R. Eadington, 3–14. Reno, NV: Institute for the Study of Gambling and

Commercial Gambling, University of Reno, 2004; first printing, 1990. Originally a speech given in 1989 predicting that IGRA will “revolutionize” gaming in the United States, especially because it will bring about three new federal criminal statutes. Rose also predicts that enforcement of these statutes will be difficult. 4698. Rose, I. Nelson. “Wisconsin’s Compacts—Bad Law and Politics.” Gaming Law Review 8 (December 2004): 331–32. Governor Doyle, in 2003, encountered the end of the original seven-year compacts and automatic fiveyear extensions. The state needed the tribal revenue sharing dollars and tribes had to keep their investments open so the governor extended the tribes’ gaming operations and waived the state’s sovereign immunity. The legislature began this problem by authorizing former Governor Thompson to negotiate for the state and the legislature removed itself from the approval process. A federal court should declare these compacts illegal because neither voters nor the legislature approved them. 4699. Rosenthal, Nicolas G. “The Dawn of a New Day? Notes on Indian Gaming in Southern California.” In Native Pathways: American Indian Culture and Economic Development in the Twentieth Century, edited by Brian Hosmer and Colleen O’Neill, 91–111. Boulder: University of Colorado Press, 2004. Gaming has paid off economically for tribes in this region and trends indicate that it has also encouraged retribalization, cultural revitalization, and increased tribal roles in American popular culture. 4700. Ryan, Kevin. “Municipal and State Impact on Gaming.” New England Law Review 37, no. 3 (2002– 2003): 553–57. A state representative discusses tribal gambling’s impact on local non-Indian communities. The loss of tax base is one issue. The tribe wants to increase its land base, crime has increased, and there is a migration of workers to these communities. 4701. “Sac & Fox Tribe of the Mississippi in Iowa v. Bureau of Indian Affairs, 439 F. 3d 832 (8th Cir. 2006).”Gaming Law Review 10 (June 2006): 272–75. In 2002, the people became upset with Alex Walker’s administration and asked for a recall. Charlie Old Bear appointed Homer Bear, Jr. as council leader and they seized the casino. Now a federally recognized council was out of power and an appointed council controlled the casino assets. The court ruled that it did not have jurisdiction to hear this dispute.

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4702. “Salt River Pima–Maricopa Indian Community vs. Arizona.” Gaming Law Review 3 (April 1999): 197–98. The Tenth Circuit Court of Appeals ruled that “When [Governor] Symington refused to either negotiate or enter into a gaming compact” he fulfilled Arizona’s state legislative power to decide the extent of tribal gaming within the state. 4703. Sandoval, Nicolasa I. “California’s Cultural Renaissance: Reclaiming the Past for the Future.” Native Americas 20 (Winter 2003): 54–59. Gaming has changed the California landscape economically. Casinos have boosted the region’s tribal cultures, enabling them to live on small pieces of land and still retain or revive their cultures. 4704. Santoni, Roland. “The Indian Gaming Regulatory Act: How Did We Get Here? Where Are We Going?” Creighton Law Review 26, no. 2 (1992–1993): 387–447. After IGRA’s passage, new conflicts emerged between tribes and states that refused to negotiate in good faith for establishment of Class-III gambling operations. Courts have struck down tribal suits against states on the basis of Eleventh Amendment sovereign immunity. Several amendments to the 1988 act are recommended to eliminate these problems and to bring the power balance back in favor of the tribes. 4705. Saucedo, Everett. “Curses of the New Buffalo: A Critique of Tribal Sovereignty in the Post-IGRA World.” St. Mary’s Law Review on Minority Issues 3 (Fall 2000): 71–113. The large inflow of casino dollars, coupled with tribal autonomy, may permit tribes to violate individual tribal rights. The Tigua tribe sued Marty Silvas for alleged misappropriation of moneys and a battle ensued to reduce the blood quantum membership requirement. Silvas won the case, but the tribe fired his supporters. As American citizens, tribal members are owed the constitutional right of due process. 4706. “Seminole Tribe of Florida v. Angela McCor.” Gaming Law Review 9 (August 2005): 430–36. A woman was injured at the tribe’s Tampa gaming facility in 2002, and the tribe asserted its sovereign immunity. The court dismissed the case, citing the tribe’s right to sovereign immunity and the fact that the trial court has no subject matter to hear the claim. 4707. Skibine, Alexander Tallchief. “Cabazon and Its Implications for Indian Gaming.” In Indian Gaming: Who Wins?, edited by Angela Mullis and David Kam-

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per, 67–71. Los Angeles: American Indian Studies Center, UCLA, 2000. The balance of interest went in the tribe’s favor in this case, but the Supreme Court has been slowly eroding tribal sovereignty relative to state jurisdiction. 4708. Skibine, Alexander Tallchief. “Scope of Gaming, Good Faith Negotiations and the Secretary of Interior’s Class III Gaming Procedures: Is I.G.R.A. Still a Workable Framework after Seminole?” Gaming Law Review 5 (August 2001): 401–13. Congress passed IGRA as a compromise measure and it pleased no one. One issue involves the extent of the Secretary of the Interior’s power to draft gaming regulations. The second involves determining what games must comply with state regulations. For the Secretary of the Interior to make these decisions would be closer to Congress’s intent, despite the Supreme Court’s ruling in Seminole. 4709. Skolnick Jerome H. Untitled article. In Indian Gaming and the Law, edited by William R. Eadington, 133–46. Reno, NV: Institute for the Study of Gambling and Commercial Gambling, University of Reno, 2004; first printing, 1990. Comments on IGRA’s passage and considers America’s ambivalence about gambling. He concludes by urging tribes not to “push your luck too far.” 4710. Smith, Laura Hansen. “The Struggle over the Geographic Expansion of Indian Gaming.” In The Tribes and the States: Geographies of Intergovernmental Interaction, edited by Brad A. Bays and Erin Hogan Fouberg, 101–17. Lanham, MD: Rowman and Littlefield, 2002. A section of IGRA gives states a powerful tool to limit the geographic expansion of Indian gaming. IGRA specifies the process through which a tribe can acquire trust status for lands intended for gaming through exceptions listed in section 20, including one in which a governor must concur. 4711. Sokolow, Gary. “The Future of Gambling in Indian Country.” American Indian Law Review, 15, no. 1 (1989): 151–83. Cabazon was the first step in softening tribal sovereignty in the gaming area and that pattern will continue. Since Indian law is often fact driven, the future may be different. States continue to seek greater erosion of tribal sovereignty. 4712. Spilde, Katherine A. “Educating Local Non-Indian Communities about Indian Nation Governmental Gaming: Messages and Methods.” In Indian Gaming: Who Wins?, edited by Angela Mullis and David

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Kamper, 83–95. Los Angeles: American Indian Studies Center, UCLA, 2000. Offers an outline of information useful to explaining issues to the public, contending that increased education leads to increased public acceptance. Tribal gaming can be shown to benefit the broader community, not just enrolled tribal members. 4713. Stabile, Mark E. “The Effect of the Federally Imposed Mediation Requirement of the Indian Gaming Regulatory Act on the Tribal–State Compacting Process.” Seton Hall Journal of Sports Law 7, no. 1 (1997): 315–46. Despite the completion of many tribal–state gaming compacts, twenty states have resisted compacting with tribal governments, often citing the Tenth and Eleventh Amendments to the Constitution as their defense. The most famous case was the 5-4 vote by the Supreme Court in Seminole Tribe that defended a state’s Eleventh Amendment sovereign immunity from a tribal law suit for failing to negotiate in good faith. Alternative dispute resolution is the best means to bypass the court’s decision. 4714. “The State of Minnesota vs. Prairie Island Indian Community.”Gaming Law Review 1 (December 1997): 599–603. Sally A. Matsch was a former employee of the Prairie Island Sioux. There is concurrent jurisdiction between the tribal court and the federal district court and the federal court dismissed the case. Matsch re-filed with the tribal court, forcing the issue of a district court error on the absence of subject matter jurisdiction and her failure “to exhaust her tribal court remedies.” The court ruled that once she filed her case in tribal court, the district court had no jurisdiction, thus forcing Matsch to use all tribal court remedies. 4715. Staudenmaier, Heidi McNeil. “Proposed Johnson Act Amendments Seek to ‘Clarify’ Distinction between Class II and Class III Gaming.” Gaming Law Review 10 (February 2006): 4–8. The Department of Justice claims that as tribal gaming operations escalate, the 1962 amended Johnson Act, which makes it illegal to transport, use, or possess a gaming device outside and inside Indian country, has to be clarified for Class-II gaming machines. 4716. Staudenmaier, Heidi McNeil. “Tribal Sovereign Immunity: Will These Rights Survive Judicial Review?” Gaming Law Review 7 (August 2003): 245–49. Federal law has established that tribes are immune from suit “without congressional authorization.” Recently, the Supreme Court threatened tribal sovereign

immunity by taking cases from appellate courts that have upheld it. 4717. Staudenmaier, Heidi McNeil and Andrew D. Lynch. “The Class II Gaming Debate: The Johnson Act vs. The Indian Gaming Regulatory Act.” Gaming Law Review 8 (August 2004): 227–37. Class-II gaming is important to tribes because the revenues are often not shared with states and states do not have jurisdiction over Class II. Classifying games of chance is essential to tribal sovereignty and to eliminating state interference. The Supreme Court aided the tribes by providing the tribes some leverage in lobbying states for slot machines. 4718. Steinman, Erich. “(Mixed) Perceptions of Tribal Nations’ Status: Implications for Indian Gaming.” American Behavioral Scientist 50 (November 2006): 296–315. Without coherent congressional corrective legislation, conflict will be a major feature of tribal gaming, but if tribes gain more acceptance as sovereigns this may reduce the conflict. 4719. Stocker, Robert W., II. “Taxation of Class III Tribal Gaming: Is It on the Horizon?” Gaming Law Review 7 (December 2003): 451–53. IGRA provides protection from taxation of ClassIII gaming. As tribal gaming becomes more profitable, Congress may take that tax exemption away by invoking the Indian Commerce Clause. 4720. Straus, Jerry C. “Florida’s War on Indian Gaming: An Attack on Tribal Sovereignty.” St. Thomas Law Review 13 (Fall 2000): 259–68. The war for control of reservation gaming can only be understood within a historical context. Current attacks on tribal gaming stem from the inability to examine tribal sovereignty properly. Hopefully IGRA will be used to protect tribal sovereignty, not destroy it. 4721. Sullivan, Edward P. “Reshuffling the Deck: Proposed Amendments to the Indian Gaming Regulatory Act.” Syracuse Law Review 45, no. 3 (1995): 1107–67. Congress’s intent in passing IGRA was to forge a balance among tribes, states, and the federal government in the development and regulation of tribal gaming operations. In amending the law, Congress needs to return to the balance of the past. 4722. “Supreme Court of the United States: Inyo County, California, et al. v. Paiute–Shoshone Indians of the Bishop Community of the Bishop Colony et al.” Gaming Law Review 7 (August 2003): 297–303. The Ninth Circuit Court of Appeals heard this case that stemmed from the failure of three trial casino employees who failed to report their casino earnings

Gaming

when they applied for welfare. The Ninth Circuit reversed the lower court’s decision that the county had the right to obtain a search warrant and search the casino for these records. 4723. Swanson, Eric J. “The Indian Gaming Craze: Casino Gambling under the Indian Gaming and Regulatory Act of 1988.” Hamline Law Review 15 (Spring 1992): 471–96. After favorable rulings in Seminole Tribe v. Butterworth and California v. Cabazon Band of Mission Indians, tribes established gambling operations. The conflict between states and tribes is over authority and if it continues, Congress may have to intervene again. 4724. Switzer, Justin W. “Did They Really Think This Was Over? Seminole Tribe v. Florida and the Bankruptcy Code.” Houston Law Review 34 (Winter 1997): 1243–78. The Seminole Nation sued the state of Florida to force it to bargain fairly during IGRA compact negotiations. The Supreme Court ruled that the Eleventh Amendment protected the state’s sovereign immunity. The ruling “gives states license to violate federal bankruptcy law.” 4725. Taylor, Scott A. “Federal and State Income Taxation on Indian Gaming Revenues.” Gaming Law Review 5 (August 2001): 383–99. Tribal income is exempt from federal and state taxation unless the tribe organizes a corporation under state law. This can be an issue of contention for tribes that take gaming revenues and invest them in off-reservation businesses. For individuals, income taxes do not apply to per capita gaming payments, but these per capita payments can affect federal benefits, such as health and education. 4726. Thompson, William N. “History, Development, and Legislation of Native American Casino Gaming.” In Legalized Casino Gaming in the United States: The Economic and Social Impact, edited by Cathy H. C. Hsu, 41–61. New York: Haworth Hospitality Press, 1999. Overview essay concluding with comments on the positive and negative effects of gaming as a form of economic development for tribal communities. 4727. Thompson, William N. Untitled article. In Indian Gaming and the Law, edited by William R. Eadington, 29–66. Reno, NV: Institute for the Study of Gambling and Commercial Gambling, University of Reno, 2004; first printing, 1990. Highly critical of IGRA and suggests amendments to make it a better piece of legislation. 4728. Tongate, B. W. Untitled article. In Indian Gaming and the Law, edited by William R. Eadington, 73–78.

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Reno, NV: Institute for the Study of Gambling and Commercial Gambling, University of Reno, 2004; first printing, 1990. There are a wide variety of conflicting interpretations of what IGRA intends. Tongate offers advice to the incoming National Indian Gaming Commission. 4729. Tullis, Eddie. Untitled article. In Indian Gaming and the Law, edited by William R. Eadington, 99–104. Reno, NV: Institute for the Study of Gambling and Commercial Gambling, University of Reno, 2004; first printing, 1990. The Chairman of the Poarch Band of Creek Indians in Alabama is critical of the new gaming legislation as an attack on tribal sovereignty. 4730. Turner, Allen C. “Evolution, Assimilation, and State Control of Gambling in Indian Country: Is Cabazon v. California an Assimilationist Wolf in Preemption Clothing?” Idaho Law Review 24, no. 2 (1987–1988): 317–38. Preemption is an outdated legal theory because its foundation is tribal assimilation and it is judicially weak. 4731. Twetten, Daniel. “Public Law 280 and the Indian Gaming Regulatory Act: Could Two Wrongs Ever Be Made Into a Right?” Journal of Criminal Law and Criminology 90 (Summer 2000): 1317–51. IGRA has increased revenues for some tribes, especially those near urban centers. At the same time, crime has increased and in P.L. 280 states there has not been an increase in state enforcement. To correct this imbalance, Congress should order gaming revenues to bolster tribal law and order, and amend P.L. 280 so that reservation criminal and civil jurisdiction is returned to the tribes. 4732. Udall, Stewart L. Untitled article. In Indian Gaming and the Law, edited by William R. Eadington, 21–28. Reno: Institute for the Study of Gambling and Commercial Gambling, University of Reno, 2004; first printing, 1990. Admits his ambivalence about Indian gaming, and says that states pushed for the new IGRA legislation to impede tribal operations. There are some positive aspects of the act from tribal perspectives. Udall offers advice to tribes interested in gaming. 4733. “United States Court of Appeals, Eighth Circuit: Casino Resource Corporation v. Harrah’s Entertainment, Inc.” 6 (August 2002): 349–58. Harrah’s terminated a gaming contract with the Potawatomi’s Casino Resource Corporation and the tribe sued Harrah’s. The district court ruled for Harrah’s, but the Eighth Circuit reversed the decision by claiming that no preemption of state law existed.

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4734. “United States Court of Appeals, Eighth Circuit: Missouri River Services, Inc. v. Omaha Tribe of Nebraska.” Gaming Law Review 6 (April 2002): 165–75. Missouri River Services built an unsuccessful casino on tribal lands and the tribe refused to agree to an arbitration award, claiming sovereign immunity, and asked the court to reverse the judgment. Also, the tribe argued that it should not pay an award from Omaha tribe’s Iowa casino and the court agreed. 4735. “United States Court of Appeals, Eighth Circuit: Turn Key Gaming, Inc. v. Oglala Sioux Tribe.” Gaming Law Review 7 (April 2003): 161–65. Turn Key Casino entered into a contract to build a casino for the Pine Ridge people, but went over budget. The lower federal court granted the tribe principle compensation plus a prejudgment award upholding the lower court’s decision. 4736. “United States Court of Appeals for the Ninth Circuit: Chemehuevi Indian Tribe et al. and Coyote Valley Band of Pomo Indians v. The State of California.” Gaming Law Review 7 (December 2003): 455–75. The Coyote Valley Band of Pomo claimed California did not negotiate in good faith during gaming compact negotiations. Because California is a P. L. 280 state, the negotiations hinged on that law. The appeals court ruled that many of the compact’s provisions that they opposed were negotiated in good faith and that a lower court decision upholding the state’s position stands. 4737. United States Court of Appeals for the Ninth Circuit: Steven Sharber v. Spirit Mountain Gaming Inc.” Gaming Law Review 8 (February 2004): 57–58. The appellate court ruled that the lower court erred by granting Spirit Mountain a motion to dismiss for lack of jurisdiction. This error was caused by the lack of exhaustion that is required for comity. 4738. “United States Court of Appeals, Sixth Circuit: Lac Vieux Desert Band of Lake Superior Chippewa Indians v. Michigan.” Gaming Law Review 6 (June 2002): 261–67. The opening of gaming in Detroit initiated this suit in which the tribe claimed the action violated First and Fourteen Amendment protections. The violations took place when two casino companies were awarded two of the three Detroit casino licenses and the court agreed that action hurt tribal efforts to obtain an offreservation casino license in the city. 4739. “United States District Court, District of Connecticut: Jeff Worrall v. Mashantucket Pequot Gaming Enterprise.” Gaming Law Review 5 (August 2001): 417–23.

A patron’s chair broke and the patron sued the tribe. The court ruled that subject matter jurisdiction barred the federal court from hearing the case, as well as tribal sovereign immunity. 4740. Valley, David J. and Diana Lindsay. Jackpot Trail: Indian Gaming in Southern California. El Cajon, CA: Sunbelt, 2003. Informational guide regarding the gaming tribes and discussing the role tribal gaming has played in the state economy. 4741. Viarrial, Jacob. “Remarks of Pojoaque Pueblo Governor Jacob Viarrial.” Thomas M. Cooley Law Review 14, no. 3 (1997): 533–40. The Pojoaque–State of New Mexico gaming negotiations finally culminated in a gaming compact. Viarrial discusses its affect on the tribal community and those individual involved in the negotiations. 4742. Wacker, R. Fred. “Michigan Gambling: The Interactions of Native American, Detroit, and Canadian Casinos.” American Behavioral Scientist 50 (November 2006): 373–81. Since the mid-1990s, Ontario, Detroit, and tribal casinos have competed for gambling dollars. Collectively, gaming has created development. 4743. Waddell, David D., Michael L. Brady, and Scott D. Stoner. “The Indian Gaming Regulatory Act’s Dual Process for Tribal Casinos on After-Acquired Land.” Gaming Law Review 3 (February 1999): 39–48. Twenty-six states now have tribal gaming. One dispute involves the opening of a tribal casino that was placed in trust after 1988. The Sixth Circuit Court of Appeals ruled that on these “afteracquired” properties, the tribe must have both secretarial and state approval for gaming. 4744. Washburn, Kevin K. “The Mechanics of Indian Gaming Management Contract Approval.” Gaming Law Review 8 (December 2004): 333–46. Describes the process that the National Indian Gaming Commission encounters when signing a tribal gaming management contract. There are background investigations and environmental reviews. In creating the review process, the NIGC defined collateral agreement broadly to insure that it had oversight of reservation gaming. 4745. Wenzel, Mark C. “Let the Chips Fall Where They May: The Spokane Indian Tribe’s Decision to Proceed with Casino Gambling without a State Compact.” Gonzaga Law Review 30, no. 2 (1994/95): 467–86. Washington State opposed Colville gambling and stopped the negotiations under IGRA. The tribe sued for failing to negotiate in good faith and the state ar-

Gaming

gued that the Eleventh Amendment shielded it from suit by claiming sovereign immunity. Without a state compact, the tribe opened a casino while the case was in court. Since Washington had entered into other gaming compacts, the court rejected sovereign immunity, eliminating the state’s defense. 4746. Wetzel, Christopher. “Intratribal Contention Concerning Indian Gaming: Implications for Syncretic Tribalism.” American Behavioral Scientist 50 (November 2006): 283–96. Examines an intratribal contest between factions of the Keweenaw Bay Indian Community and the Kickapoo Traditional Tribe of Texas. After half a century of contentious politics, four questions were raised concerning casino gaming and its place on the reservation: who manages the social and economic effects of casino gaming, who is eligible to share in the benefits, who is “a traditional Indian,” and what does that mean? 4747. Williams, Robert T. “An Overview of Indian Gaming in New York State.” Gaming Law Review 3 (August 1999): 289–310. The four tribal casinos in New York State all operate Class-II games of chance while only the St. Regis Mohawk and Oneida have Class-III gaming and have signed compacts with the state of New York. The two compacts are under litigation because the legislature did not approve either.

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the Indian casinos are 100 percent tribally owned. In 1983, the Saginaw Chippewa Tribal Council enacted Ordinance No. 7 to regulate tribal card games. 4750. Wolf, Sidney M. “Killing the New Buffalo: State Eleventh Amendment Defense to Enforcement of IGRA Indian Gaming Compacts.” Washington University Journal of Urban and Contemporary Law 47 (Winter 1995): 51–119. The Commerce Clause prevents states from barring tribal suit against them for failing to negotiate tribal gaming compacts as stipulated in IGRA, but courts are permitting states to invoke their Tenth and Eleventh Amendment sovereign immunity rights against suit when tribes push states to negotiate compacts in good faith. 4751. Worthen, Kevin J. and Wayne R. Farnsworth. “‘Who Will Control the Future of Indian Gaming?’ A Few Pages of History Are Worth a Volume of Logic.” Brigham Young University Law Review 1996, no. 2 (1996): 407–48. Instead of being a new battle between states and tribes, the gambling issue is part of a larger and ongoing conflict between states and tribes over who will control reservation gambling. The future does not look promising for tribes.

4748. Wilmer, Franke. “Indian Gaming: Players and Stakes.” Wicazo Sa Review 12 (Spring 1997): 89– 114. Surveys past legislation and litigation, as well as more recent developments. Gaming is beneficial to tribes and the states should not intrude on tribal sovereignty by controlling their operations.

4752. “Wyandotte Nation v. Sebelius, 443 F. 3d 1104 (10th Cir. 2006).” Gaming Law Review 10 (August 2006): 391–99. The Shriner tract in Kansas City has pitted the tribe against the U.S. In 1996, the Wyandotte wanted to place the land in trust and the Kansas governor was concerned that it would become the location of a casino. Kansas and other tribes sued. The appeals court removed the lower court’s injunction against the Wyandotte to build a casino on that property.

4749. Wilson, Thomas L. “Indian Gaming and Economic Development on the Reservation.” Michigan Bar Journal 68 (May 1989): 380–84. Reservation bingo gained popularity in 1974 which helped prompt IGRA’s passage. To protect their interests in gaming, the tribes sought federal legislation to strengthen their position. In Michigan,

4753. Young, Gordon C. “Seminole Tribe v. Florida.” Maryland Law Review 56, no. 4 (1997): 1411–46. In a case involving federalism, the court was divided on state sovereign immunity. This decision brings back “Commerce Clause-based abrogation” and brings to the present Ex parte Young, a centuryold doctrine that places internal limits on a state.

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4754. Alexander, Robert William. “The Collision of Tribal Resource Development and State Taxation: An Economic Analysis.” New Mexico Law Review 27 (Spring 1997): 387–420. Without a clear mandate from Congress, the “Supreme Court has struggled to define proper jurisdictional limits for state and tribal taxation on Indian reservations.” When developing resources, tribes negotiate royalties with developers, but can set their own severance taxes. Arrangements can mitigate the negative results of taxing, but state taxing of tribal resources provides no benefits.

4757. Ansson, Richard J., Jr. “Protecting Tribal Sovereignty: Why States Should Not Be Able to Tax Contractors Hired by the BIA to Construct Reservation Projects for Tribes: Blaze Construction Company v. New Mexico Taxation and Revenue Department: A Case Study.” American Indian Law Review 20 (1995–1996): 459–78. It is best for only one sovereign to tax on a reservation, but the Supreme Court has permitted reservation dual taxation in several instances. In this case, the question was whether tribes and states could tax a contractor doing work for the BIA in Indian Country, and which government had the most compelling interest.

4755. Ames, Marilyn. “Tribal Taxation of Non-Indian Mineral Lessees: An Undefined Inherent Power.” Journal of Contemporary Law 6 (Winter 1979): 55–73. Since Worcester, tribes have had authority over their resources and the inherent power to tax nonIndians “as a condition of being within Indian boundaries.” State taxation, when permitted, does not limit tribal governments in this area, but both may tax the lessee, hindering tribal economic development.

4758. Ansson, Richard J., Jr. “State Taxation of NonIndians Who Do Business with Indian Tribes: Why Several Recent Ninth Circuit Holdings Reemphasize the Need for Indian Tribes to Enter Into Taxation Compacts with Their Respective State.” Oregon Law Review 78 (Summer 1999): 501–50. Tribes and states are seeking more tax dollars from inside reservation boundaries. Recent court decisions have enabled states “to concurrently tax nonmembers” doing business on a reservation. Economics dictate that if both the tribe and state tax the same service or product, the revenues for both will drop. To protect their competitiveness, it tribes must enter into tax compacts with states.

4756. Ansson, Richard J., Jr. “Protecting Profits Derived from Tribal Resources: Why the State of Utah Should Not Have the Power to Tax Non-Indian Oil and Gas Lessees on the Navajo Nation’s Aneth Extension: Texaco, Exxon, and Union Oil v. San Juan County School District—A Case Study.” American Indian Law Review 21, no. 2 (1997): 329–50. This case reflects the contrary decisions courts make creating a rough edged judicial doctrine that is hard to follow. In Cotton Petroleum, the Supreme Court decided that states and tribes have concurrent authority to tax non-Indian lessees without burdening the tribe. The state of Utah taxed non-Indian and even Indian allottees and provided no services, demonstrating the negative consequences of concurrent taxing authority.

4759. Aprill, Ellen P. “Tribal Bonds: Indian Sovereignty and the Tax Legislative Process.” Administrative Law Review 46 (Spring 1994): 333–68. The 1982 Indian Tribal Government Tax Status treated tribal governments like states for specific tax purposes including the authority to issue tax-exempt tribal bonds. The law’s limitations forced tribes to enter into risky ventures and prevented the creation of meaningful partnerships.

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4760. Arrow, Dennis W. “Federal Question Doctrines and American Indian Law.” Oklahoma City University Law Review 14 (Summer 1989): 263–389. The Supreme Court, in 1989, heard the case Oklahoma Tax Commission v. Graham. The Chickasaw Nation had failed to pay state taxes on products sold at the tribally owned motel. The court missed the opportunity to strengthen several areas of tribal sovereignty, such as sovereign immunity, when ruling on this case. 4761. Babbitt, Hattie. “State Taxation of Indian Income.” Law and the Social Order, Arizona State University Law Journal 1971, no. 2 (1971): 355–69. Minnesota, Arizona, and New Mexico decided to tax reservation tribal income. Only the Minnesota Supreme Court denied that power, beginning a power play between states and tribes to exercise their sovereignty. The best alternative to litigation is for the federal government to provide assistance to states with large reservations. 4762. Barron, Pam Moore. “Limits of Indian Sovereignty: The Tribe Confronts the State in On-Reservation Taxation of Non-Indians.” Houston Law Review 18 (March 1981): 563–83. The Supreme Court in Washington v. Confederated Tribes of the Colville Indian Reservation ruled that federal statutes did not prevent state authorities from collecting a cigarette tax on tobacco sold on the reservation by tribal vendors to non-tribal purchasers. The court used a balancing test between federal–tribal interests in preserving tribal sovereignty and the state’s interest in avoiding tax flight. 4763. Barsh, Russel Lawrence. “Issues in Federal, State, and Tribal Taxation of Reservation Wealth: A Survey and Economic Critique.” Washington Law Review 54 (June 1979): 531–86. A thorough understanding of reservation taxation, payrolls, and moneys available for capital expenditure is necessary to understand tribal business operations and the ways they manipulate these variables at different times for different needs. The courts and Congress must understand tribal taxes before making decisions that affect them. 4764. Bloeser, Charles K. “Hayden-Cartwright: A Ready Remedy for Oklahoma’s Indian Fuel Tax Woes.” Tulsa Law Journal 32 (Fall 1996): 139–61. The Chickasaw Nation sells gasoline purchased from non-Indians to anyone without paying a state tax, forcing the state to lose highway dollars and federal matching funds for highways. The act was intended as a partnership permitting states to gain revenues from federal reservations. Now something

needs to be done by the state and tribe to prevent litigation. 4765. Boyle, Gerald J. “Tax Alternatives.” In Economic Development in American Indian Reservations, Development Series No. 1. Albuquerque: Native American Studies, University of New Mexico, 1979, 119–28. The Navajo Nation must have taxing power, and must be free to adjust rates and bases, if it is to progress toward self-determination. Boyle analyzes internal and external taxation potential and includes numerous statistical tables and charts. 4766. Breer, Charles. “Indian Law–Mineral Taxation—Are State Severance Taxes Preempted When Imposed on Non-Indian Lessees Extracting Oil and Gas from Indian Reservation Land?” Land and Water Law Review 25, no. 1 (1990): 435–45. The Supreme Court in Cotton Petroleum Corporation v. New Mexico, decided in 1989, that the nonIndian lessee was liable to pay both state and tribal severance taxes. The court made a decision without properly understanding the economic ramifications that double taxation would have for tribal economic development by reducing the tribal severance tax collection and impeding tribal self-determination. 4767. Bridgewater, Bradley Scott. “Taxation: Merrion v. Jicarilla Apache Tribe: Wine or Vinegar for Oklahoma Tribes.” Oklahoma Law Review 37 (Summer 1984): 396–96. In 1982, the Supreme Court decided in Merrion that the tribe could impose a severance tax on nonmembers’ natural resource exploration. The thirty-six federally recognized tribes in Oklahoma may benefit. 4768. Brown, Ellen C. “Indian Law—State Jurisdiction on Indian Reservations—Effects of Concurrent State and Tribal Taxation of Indian Smoke Shops.” Western New England Law Review 3 (Spring 1981): 715–38. In 1980, the Supreme Court attempted to define the state and tribal tax boundaries on reservations in Washington v. Confederated Tribes of Colville. The court decided that requiring tribal smoke shop owners to collect state taxes when non-Indians made purchases did not infringe on tribal sovereignty, but placing a state tax on top of a tribal tax will not help the tribe’s economic condition. This double taxation also hurts states. 4769. Brown, Robert C. “The Taxation of Indian Property,” Minnesota Law Review 15 (January 1931): 182–209. The large areas of non-taxable lands embarrass the states that cannot bring their authority to tax on the reservation. This problem needs to be resolved.

Taxation

4770. Brunt, David. “Taxation and the American Indian.” Indian Historian 6 (Spring 1973): 7–10, 42. Tribal nations are facing the loss of revenue because of leasing and the spending of tribal claims moneys. Taxation might provide revenues because the IRS exempts treaty gross revenues, but income, property, and sales taxes are not good options for tribes. Arizona has attempted to collect taxes from the Navajo Reservation and this has resulted in a number of court cases. 4771. Cantor, Raymond E. “Indian Sovereignty—Commerce Clause—Taxation—Merrion v. Jicarilla Apache Tribe.” New York Law School Law Review 28, no. 4 (1984): 1079–1106. In 1982, the Supreme Court upheld the tribe’s right to establish a severance tax on a non-member for extracting natural resources from the reservation based on its sovereign power. 4772. Carleton, Jennifer Nutt. “State Income Taxation of Nonmember Indians in Indian Country.” American Indian Law Review 27, no. 1 (2002–2003): 253–80. What exactly is considered “reservation land” and who should be considered a “reservation Indian” is unclear. In Joan LaRock v. Wisconsin Department of Revenue, the Wisconsin Supreme Court determined that a nonmember Indian living and working on the Oneida reservation was subject to state income tax. Tribes should turn to federal courts, seek explicit state legislation exempting Native Americans from taxation, or otherwise pursue compromise agreements with states. 4773. Carpenter, Charley. “Preempting Indian Preemption: Cotton Petroleum Corp. v. New Mexico.” Catholic University Law Review 39 (Winter 1990): 639–71. The legal question was whether a state could collect taxes from a non-Indian company working on a reservation. After an unsuccessful attempt to prevent the Jicarilla Tribe from collecting severance taxes from Cotton, the petroleum company sued the state seeking relief from state imposed taxes. The Supreme Court ruled that both the tribe and the state have concurrent jurisdiction and that the company had to pay both governments their taxes. If the IRA with its emphasis on home rule is the model for tribal government, then reservation economics can be damaged by this decision. 4774. Carrico, Michael L. “‘Te Pee’ as in Taxpayer: Tribal Severance Taxes—Canvassing the Reservation.” Journal of Mineral Law and Policy 7, no. 1 (1991–92): 73–104. Stresses the importance of the Brendale and Montana decisions when examining tribal severance

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taxes being applied to fee lands. Tribes can argue that they will suffer economic hardship if they are not permitted to tax mineral extraction from these lands. 4775. “The Cases for Exclusive Tribal Power to Tax Mineral Lessees of Indian Lands.” University of Pennsylvania Law Review 124 (December 1975): 491–535. Tribal governments can levy taxes on mineral lessees even if no tax clause is part of the lease because of their sovereign status. On the other hand, state taxation of reservation mineral lessees makes tribal victories hollow because of the extra burden that double or dual taxation of the same activity may have on reservation development. 4776. Chambers, Chad. “Income Derived from Indian Tribal Lands Was Taxable to Tribal Members: Red Lake Band of Chippewa Indians v. United States.” Tax Lawyer 50 (Summer 1997): 849–54. Unless a congressional statute or treaty exempts these tribal members from taxation, the Eighth Circuit Court of Appeals ruled they were liable to pay a gross income tax on the sale of tribal timber; the only exception was timber cut from an allotment. This reasoning stems from the 1931 Supreme Court decision Choteau v. Burnet “that Indians are subject to federal income tax unless a specific exemption can be found in either a treaty or statute.” Neither the 1887 General Allotment Act nor treaties provided for this exception. 4777. Chen, Bess Lee. “What about Colville?” American Indian Law Review 8, no. 1 (1980): 161–73. Analysis of the tribal and state arguments and the Supreme Court’s decision in the Colville tax case permitting the state to tax non-Indian purchasers of cigarettes on the reservation. 4778. Claassen, Sharon E. “Taxation: State Transportation Privilege Tax: An Interference with Tribal SelfGovernment.” American Indian Law Review 7, no. 2 (1979): 319–33. An early legal theory that reservations were federal instrumentalities prohibited state taxation, but the theory slowly lost influence on the courts opening the way for a series of state tax encroachments often in the form of a privilege tax. 4779. Clow, Richmond L. “Taxation and the Preservation of Tribal Political and Geographical Autonomy.” American Indian Culture and Research Journal 15, no. 2 (1991): 37–62. Historically, tribal legislative ability to tax potential reservation revenues has been an inherent power of tribal governments that has escaped state scrutiny and has also enjoyed federal support. Federal, state,

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and tribal tax conflicts escalated during the twentieth century as tribal governments enacted comprehensive tax ordinances. After World War II, tax conflicts increased as states sought gasoline and cigarette taxes from tribal business, spawning a large body of case law. This has forced contemporary tribal governments to find additional sources to tax, making the boundaries of Indian Country less defined. 4780. Clow, Richmond L. “Taxing the Omaha and Winnebago Trust Lands, 1910–1971: An Infringement on the Tax Immune Status of Indian Country.” American Indian Culture and Research Journal 9, no. 4 (1985): 1–22. In 1910 and 1916, Congress assisted the local government of Thurston County, Nebraska, by passing legislation authorizing lessees of Omaha lands, and later Winnebago lands, to pay land taxes from the allottee’s lease payment. Because the tax burden was greater than the lease payments, allottees often sold their lands. 4781. Collins, Richard. “Tax Aspects of Indian Natural Resource Development.” In American Indian Lawyer Training Program, Seminar on Indian Natural Resource Law and Finance 421–41. Oakland, CA: American Indian Lawyer Training Program, 1980. Current tax laws have given tribes and states the authority to tax non-Indian natural resource development on reservations. This creates a situation of dual taxation that hinders tribal resource development. One way to avoid dual taxation is for tribes to form a federal corporation under the IRA and follow the example of Navajo Forest Products. 4782. Colton, David S. “Federal Preemption of State Authority to Tax Non-Indian Mineral Development on Indian Lands.” Brigham Young University Law Review, no. 4 (1982): 919–34. Federal preemption of state authority on tribal reservations prohibits state severance taxes on nonIndian mineral developers working on reservations. Courts should recognize federal involvement in reservation development, through the extensive body of federal regulations affecting reservation activities, and that state imposition would hinder tribal selfdetermination. 4783. Connell, Colleen, “Balancing the Interests in Taxation of Non-Indian Activities on Indian Lands.” Iowa Law Review 64 (July 1979): 1459–1515. Many tribal tax ordinances provide funds for economic goals and regulatory authority. Coupled with the federal government’s reservation poverty program to encourage self-sufficiency, the federal government should take its commitments seriously and

assist tribes in gaining the most benefit from their lands. 4784. “Constitutional Law—Ore Extracted from Indian Lands Not Taxable by State.” Yale Law Journal 36 (November 1926): 142. In Jaybird Mining Company v. Weir, the Oklahoma State Supreme Court ruled that the state could not tax ore taken from the reservation under contract approved by the Secretary of Interior. 4785. Cook, Stacy. “Indian Sovereignty: State Tax Collection on Indian Sales to Nontribal Members—States Have a Right without Remedy.” Washburn Law Journal 31 (Fall 1991): 130–40. The Supreme Court in Oklahoma Tax Commission v. Citizen Band Potawatomi Indian Tribe of Oklahoma decided that non-PL 280 states can collect sales taxes on reservation sales made to non-members, but Cook argues that tribes have not relinquished their sovereign immunity, thus prohibiting the state from suing the tribe to enforce that right. 4786. Craig, Sandra Jo. “The Indian Tax Cases—A Territorial Analysis.” New Mexico Law Review 9 (Summer 1979): 221–62. Tribal tax cases follow two legal arguments, tax exemption or jurisdiction. Through these two lines of reasoning, courts have permitted states to tax nonIndians living on trust lands and Indians living on fee lands within a reservation. These two lines of reasoning, based on the New Mexico experience, should continue to define Indian tax cases. 4787. Cuykendall, Clydia J. “State Taxation of Indians— Federal Preemption of Taxation against the Background of Indian Sovereignty.” Washington Law Review 49 (November 1973): 191–212. The Supreme Court in McClanahan and Mescalero asserted federal preemption over states, prohibiting the state from collecting state income taxes on these reservations. This line of reasoning falls between tribal self-determination and assimilation. 4788. Davies, Glen E. “State Taxation of Indian Reservations.” Utah Law Review, no. 1 (July 1966): 132–51. The most practical solution would for be state assumption of jurisdiction and with it taxing authority. Native Americans would benefit as well. Most state are reluctant to do so despite the opportunity that P.L. 280 provides due to the costs. 4789. Day, Stuart R. “Indian Law—Tribal Authority to Levy a Mineral Severance Tax on Non-Indian Lessees.” Land and Water Law Review 18, no. 2 (1983): 539–52.

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In Merrion v. Jicarilla Apache Tribe, the Supreme Court ruled that the tribe could levy a severance tax on non-members drilling for natural gas. The act of passing a severance tax is a tribal government exercise in self-rule. 4790. Dean, Stephanie. “Getting a Piece of the Action: Should the Federal Government Be Able to Tax Native American Gambling Revenue?” Columbia Journal of Law and Social Problems 32 (Winter 1999): 157–85. Tribal commercial gaming began with small bingo halls and by 1994 produced $4.4 billion. The federal government can tax these revenues and this revenue can be used to stem the increase in social problems that follow high stakes gaming. 4791. Dellwo, Robert D. “From Taunah to Anderson: The Bad News of Indian Tax Law.” South Dakota Law Review 26 (Summer 1981): 529–46. Decided in 1951, Taunah authorized federal taxation of income unless Congress exempted Native Americans, while Anderson ruled that the Indian rancher had to pay income taxes if he grazed cattle on non-Indian lands. The Internal Revenue Code should be revised to exempt all income from Indian lands. 4792. Dockins, William S. “Limitations of State Power to Tax Natural Resource Development on Indian Reservations.” Montana Law Review 43 (Summer 1982): 217–34. Court decisions have made state authority to tax non-Indian resource extraction on reservations more complex. Congressional authority to tax is a clear threat to tribal sovereignty. Federal exemptions for tribes encourage tribal sovereignty. 4793. Echohawk, Larry. “Balancing State and Tribal Power to Tax in Indian Country.” Idaho Law Review 40, no. 3 (2004): 623–56. As states seek more revenues, those containing reservations are looking at tribes to provide more revenue, and that will force the tribes to raise their taxes creating a “tax and litigation war” that will do more harm than good. One way for Idaho to reduce its need for taxes is to shed itself of P.L. 280 law and order expenses. 4794. Ellis, Hal William. “Federal Taxation: Exclusion of Earnings on Allotted Indian Lands from Federal Income Taxation.” American Indian Law Review 2 (Summer 1974): 119–24. Revenue from trust lands is exempt from federal income taxes, but the courts and the IRS have made different decisions. To know what is and what is not taxable, treaties and statutes must be consulted. Squire v. Capoeman is the standard case.

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4795. Faulhaber, Dwight L. “The Power of a State to Impose an Income Tax on Reservation Indians.” Willamette Law Journal 6 (December 1970): 515–24. Barton and Evangeline Ghahate filed suit in New Mexico Supreme Court seeking a state income refund because the moneys they earned were from reservation sources and they were tribal members. The court refused since the state income tax collection did not hurt the Zuni and their right to self-rule. An opposite ruling was Brun where Minnesota did not have authority to tax income earned on the reservation based on the Red Lake’s “unique status,” which was their exemption from P.L. 280. Faulhaber puts forth the infringement test and concludes that state tax collection infringes on tribal self-rule. 4796. Febbraio, Samuel, Jr. “Tribal Severance Taxes: The Uncertain Sovereign Function: Merrion v. Jicarilla Apache Tribe.” University of Bridgeport Law Review 4, no. 1 (1982): 133–51. Tribes do not possess inherent powers of taxation but lessees have accepted taxation as part of their agreement for doing business on the reservation. 4797. Fiske, Terry Noble and Robert F. Wilson. “Federal Taxation of Indian Income from Restricted Indian Lands.” Land and Water Law Review 10, no. 1 (1975): 63–92. Non-restricted tribal or individual lands are subject to federal income taxes under the Internal Revenue Code. The opposite is true for restricted lands, whether tribal or individual. 4798. Fletcher, Matthew L. M. “The Power to Tax, the Power to Destroy, and the Michigan Tribal–State Tax Agreements.” University of Detroit Mercy Law Review 82 (Fall 2004): 1–46. In December 2002, seven of the twelve recognized Michigan tribes signed a tax agreement with the state to avoid conflicts that had taken place in states such as Rhode Island. Generally, states cannot tax tribal persons and their property in Indian Country, but can tax non-Indians. The agreement was complex and each side conceded something to gain something. 4799. Fodor, Martha A. “Montana v. Crow Tribe of Indians.” Duquesne Law Review 37 (Summer 1999): 671–86. This tribal–state–federal tax case began in 1904 when the Crow ceded lands to the U.S. but maintained the mineral rights. When coal mining began in the 1970s, the state passed severance and gross proceeds taxes that Westmoreland Resources paid to the state. The court barred the tribe from collecting those taxes. In subsequent lease renegotiations, the company paid the tribe taxes and Montana sued. After

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several phases and appeals, the Supreme Court ruled that the taxes paid to the tribe were proper.

Choteau was a mistake that followed a new line of thinking using loose construction in interpretation.

4800. Foster, Karen L. “Just Cheap Butts, or an Equal Protection Violation? New York’s Failure to Tax Reservation Sales to Non-Indians.” Albany Law Review 62, no. 2 (1998): 697–735. Non-tribal New York residents purchased gasoline and cigarettes on tribal reservations to avoid state taxes. New York wrote regulations to eliminate this practice but tribal leaders protested. The Supreme Court in Department of Taxation and Finance of New York v. Milhelm Attea and Bros., Inc. (1994) upheld state regulations, but Governor George Pataki stopped the state tax. Non-Indian retailers claimed selective tax enforcement diminished business. This is a constitutional issue that infringes on equal protection claims of the non-Indian business owners.

4805. Hamlin, Thomas. “State Taxation on Sales to Reservation Indians: A Comment on the North Dakota Attorney General’s Position.” North Dakota Law Review 49 (Winter 1973): 343–58. In February 1972, the North Dakota Attorney General decided that state sales tax could be collected from Indians and non-Indians, making the distinction between deeded and trust land unnecessary, but tribal governments were exempt.

4801. Fulwood, S. Leigh. “Of Tribes and Taxes: Limits on Indian Tribal Power to Tax Nonmembers.” Utah Law Review, no. 4 (1986): 729–49. Courts prefer deferring tax issues to Congress creating an unfavorable business climate. 4802. Gainer, Phyllis Wilson. “Taxation—Indian Trust Property—State Inheritance Tax.” St. Mary’s Law Journal 15 (Spring 1973): 161–68. Tribal tax issues are a muddy terrain and the case Mason v. United States confirms this slippery landscape. The estate administrators paid the Oklahoma estate tax and then sued, claiming that the federal representative violated his trust duties. The U.S. countered claiming that a 1948 case approved this payment. The court ruled in favor of the plaintiff declaring that the U.S. violated its trust responsibility by not examining the recent laws pertaining to the payment of a state estate tax by a non-competent Osage. 4803. Goldberg, Carole E. “A Dynamic View of Tribal Jurisdiction to Tax Non-Indians.” Law and Contemporary Problems 40 (Winter 1976): 166–89. Marshall’s Cherokee decisions proclaimed tribes possessed all the powers of any sovereign within their borders and laid the foundation for explaining tribal power to tax non-Indians. Restrictions include secretarial approval clauses in the IRA constitutions and even non-IRA tribes such as the Navajo must gain the Secretary of the Interior’s approval of tribal law and order regulations. 4804. Goodnow, Frank J. “The Nature of Tax Exceptions.” Columbia Law Review 13 (February 1913): 104–20. Discusses the 1912 Choteau v. Trapp case in the context of general tax exemptions. The court exempted specific allotted Indian lands from taxation.

4806. Heath, Joseph J. Esq. “Review of the History of the April 1997 Trade and Commerce Agreement among the Traditional Haudenosaunee Councils of Chiefs and New York State and the Impact Thereof on Haudenosaunee Sovereignty.” Buffalo Law Review 46 (Fall 1998): 1011–40. New York attempted to collect state cigarette and gasoline taxes in Indian Country. To counter this action the Haudenosaunee decided that the historic tactic of diplomatic negotiation was the best course. This created renewed state recognition of tribal sovereignty, but will the tribal businesses that sought their own settlements undermine tribal sovereignty? 4807. Hedger, Jeff. “Indian Law—The Validity of Tribal Severance Taxes without Secretarial Approval.” Land and Water Law Review 20, no. 2 (1985): 121–29. In 1983, the Tenth Circuit Court of Appeals decided in Southland Royalty Co. v. Navajo Tribe that the tribe did not need approval to enact a severance tax. The court found no statute that mandated the secretary of interior to approve tribal severance taxes on reservation producers. Tribal leaders must be careful when drafting taxes for fear of a backlash. 4808. Huemoeller, James L. “Indian Law—State Jurisdiction on Indian Reservations.” Land and Water Law Review 13, no. 4 (1978): 1035–50. In Moe v. Confederated Salish and Kootenai Tribes, the Supreme Court permitted the state to force tribal smoke shops on the Flathead Reservation to collect a state tax when non-Indians purchased cigarettes, but the state could not tax tribal members for the same purchase. This is a dangerous case that opens the door to greater state authority on reservations. 4809. Hynous, Anne-Marie. “Indian Law—Federal Law Preempts State Authority to Tax On-Reservation Transactions.” Wayne Law Review 27 (Spring 1981): 1259–79. In Central Machinery Co. v. Arizona State Tax Commission (1980) the Arizona State Supreme Court

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decided that the plaintiff did not have to pay a state privilege tax because federal law preempted state law over tribal business transactions. 4810. Ihant, Patricia. “Tribal Sovereignty and the States’ Power to Tax Indians.” Arizona Law Review 22 (Summer 1980): 249–61. Though state tax laws are not applicable in Indian Country, increased interaction with tribal members, great sophistication of state tax law, and changing congressional policies have enabled states to impose some taxes on tribal members. 4811. “Indian’s Bonus Income Held Exempt.” Oil and Gas Tax Quarterly 7 (April 1958), 201. After the case Squire v. Horton Capeoman et ux, 351 U.S. 1 (1956), the Internal Revenue ruled in ruling 57-523, “that income (including royalties and proceeds of sales of natural resources) derived from allotted and restricted Indian lands while such lands are held by the U.S. as trustee, are exempt from income and self-employment taxes. This exemption is based on provisions of the General Allotment Act of 1887 (including amendments), as interpreted by the Supreme Court in” the Capeoman decision. 4812. “Indians—Power of Government Agent to Collect Tax Levied by Indian Tribe.” Harvard Law Review 18 (February 1905): 314–15. Acts of Congress and treaties deny a tribe jurisdiction over a non-Indian, but since the defendant, the Indian agent was acting with his powers to enforce a treaty in Buster & Jones v. Wright, he could collect a tax for the tribe. 4813. Israel, Daniel H. and Thomas L. Smithson. “Indian Taxation, Tribal Sovereignty and Economic Development.” North Dakota Law Review 49 (Winter 1973): 267–301. State taxation is a dangerous threat facing tribal nations as aggressive state legislatures seek revenues on tribal lands. Tribes have been seeking revenues through the creation of tribal tax codes escalating their battle with states. 4814. Johnson, David C. “State Taxation of Indians: Impact of the 1973 Supreme Court Decisions.” American Indian Law Review 2 (Summer 1974): 1–27. During the 1973 Supreme Court term, the high court decided four tax cases that opened the door to state governments to extend their tax arm onto reservations and collect taxes on non-Indians residing on the reservations. To prevent state taxation of nontribal business activities, tribes should undertake their own economic development. 4815. Karns, Christopher A. “County of Yakima v. Confederated Tribes & Bands of the Yakima Indian Nation:

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State Taxation as a Means of Diminishing the Tribal Land Base.” American University Law Review 42 (Spring 1993): 1213–44. In 1992, the States Supreme Court permitted Washington State to tax Indian owned fee-patented lands within the boundaries of the Yakama Reservation. The result diminished the tribe’s and individual members’ abilities to make a living from their lands and was inconsistent with contemporary federal Indian policies. Congress should pass legislation overturning this decision. 4816. Kent, Robert A. “Taxation: Limitations of State Authority Over Reservation Indians—the New Mexico Case.” American Indian Law Review 3, no. 2 (1975): 479–88. New Mexico attempted to impose its state income tax on tribal members living on the reservation and deriving all their income from property in trust. The state’s high court in Fox v. Bureau of Revenue denied the state from continuing to tax tribal income. 4817. Kurman, Michael J. “Indian Investment and Employment Tax Incentives: Building a New Highway to Indian Country for Private Sector Businesses and Jobs.” Federal Bar News & Journal 41 (September 1994): 578–86. To attract businesses to the reservations, tribal leaders have argued that the Internal Revenue Code must be amended to establish incentives. Congress responded and passed the Omnibus Budget Reconciliation Act of 1993. 4818. Laurence, Robert. “The Indian Commerce Clause.” Arizona Law Review 23, no. 1 (1981): 203–61. State efforts to tax on reservations create tensions. To stop state regulations and taxation, there should be a return to the interstate Commerce Clause. This would be an appropriate way to settle this ongoing battle since that section of the Constitution not only mentions Indians, but has also been used frequently to stop state encroachment. 4819. Liebmann, Joanne. “Indians—Jurisdiction and Government of Indian Country and Reservations—Tribal Taxation Does Not Preclude States’ Authority to Impose an Otherwise Valid State Tax.” North Dakota Law Review 57, no. 2 (1981): 241–56. The state of Washington wanted to extend a cigarette tax, vehicle tax, and retail sales tax on nonIndians living on the Colville Reservation, as well as assuming civil and criminal jurisdiction. The Supreme Court permitted the sales and cigarette taxes on non-Indians but denied the other state attempts to encroach on the reservation. When future sales tax issues arise, it may be better for tribes to negotiate with the state than try to win in court.

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4820. Lytle, Clifford M. “The Supreme Court, Tribal Sovereignty, and Continuing Problems of State Encroachment into Indian Country.” American Indian Law Review 8, no. 1 (1980): 65–77. The Supreme Court permitted two state tax encroachments on tribal cigarette sales to non-Indians requiring tribal sellers to act as collectors. In both Moe and Colville, the court used the Williams and the McClanahan tests, revealing that the courts are moving away from Worcester. 4821. McCleary, Stephen P. “A Proposed Solution to the Problem of State Jurisdiction to Tax on Reservations.” Gonzaga Law Review 26, no. 3 (1990/1991): 627–59. Creates a hypothetical reservation and state to test a proposed taxing model. The federal government must enact legislation to find a proper direction since “[t]he Supreme Court has time and again expressed an unwillingness to enunciate clear, bright lines in this area.” The proposed legislative solution would rely on the Commerce Clause keeping all economic and tax authority away from the states. 4822. McCullogh, Ann. “Indian Tribal Taxation: A Cornerstone of Sovereignty.” In Native Americans and Public Policy, edited by Fremont J. Lyden and Lyman H. Legters, 165–89. Pittsburgh: University of Pittsburgh Press, 1992. As self-determination policy took shape in the 1970s, tribes viewed the right to tax as part of their right and responsibility for financing services and some began to develop tax codes. A tax code legitimizes a tribe as a sovereign government and promotes self-sufficiency and self-government. 4823. McCurdy, James R. “Federal Income Taxation and the Great Sioux Nation.” South Dakota Law Review 22 (Spring 1977): 296–321. Congress’s trust responsibility extends to individual tribal wards and thus maintains their tax-exempt status from income produced on trust property. Yet the IRS applies its income tax collection policy to tribal members and non-tribal members alike. After Squire v. Capoeman, the tribal member must have his trust land included in a grazing allotment or it will be taxed. 4824. McGee, Robert W. “Property Taxation of Indian Land after County of Yakima v. Confederated Tribes and Bands of the Yakima Nation.” University of Puget Sound Law Review 16 (Spring 1993): 1437–43. The Supreme Court ruled in 1987 “that states have the power to impose ad valorem taxes on reservation land owned in fee by Indians.” The high court used the Burke Act as its authority for defending state taxation on reservation real estate sales.

4825. Martin, Kallen. “Indians Not Taxed: Will Sovereignty Survive?” Native Americas 13 (Summer 1996): 14–25. As states become competing interests against tribal nations, tribal leaders will have to develop new strategies to fight state encroachment. New York State’s battles with the tribal nations over taxes are discussed. 4826. “Merrion v. Jicarilla Apache Tribe—Affirmed,” Denver Law Review 59, no. 2 (1982): 409–14. The Supreme Court affirmed a Tenth Circuit Court of Appeals decision accepting the tribe’s right to impose a severance tax on non-Indians producing oil and gas on executive order reservations. 4827. Minnis, Michael. “Judicially-Suggested Harassment of Indian Tribes: The Potawatomis Revisit Moe and Colville.” American Indian Law Review 16, no. 2 (1991): 289–318. Chief Justice Burger gave Justice Rehnquist Moe v. Confederated Salish and Kootenai Tribes, an Indian case that Rehnquist called insignificant. When he wrote the opinion, tribes lost out to the aggressive taxing authority of states, which were permitted to collect cigarette taxes from sales to non-Indians. The judiciary created this tax war and in Oklahoma Tax Commission v. Citizen Band Potawatomi Indian Tribe the Supreme Court suggested that the only relief was to go to Congress. The court acted as a legislature in this case and neither read the laws pertaining to tribal rights nor followed the Indian Commerce Clause. 4828. Molloy, Donald W. “‘Must the Paleface Pay to Puff?’ Confederated Salish and Kootenai v. Moe.” Montana Law Review 36 (Winter 1975): 93–102. Missoula County Sheriff deputies arrested Joseph Wheeler, an enrolled tribal member, for selling cigarettes to non-Indians on the Flathead Reservation without state stamps on the pack or a state seller’s permit. The three judge panel ruled that no state permit was required and that state excise taxes do not apply to tribal members, but the tribal vender had to collect the state tax from the non-Indians who purchased cigarettes. The dissenting Judge Russell Smith argued that race was involved in this case, setting the stage for the courts to review part of the case. 4829. Morrison, William E. “Taxation of a Possessory Interest in Restricted Indian Lands in Arizona.” Law and the Social Order, Arizona State University Law Journal, no. 3 (1972): 467–75. The Arizona legislature attempted to pass a possessory interest tax on leasehold interests, but both Native American and non-Indian lessees stopped the bill. The state should go forward with legislation

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declaring, “neither the land nor their owners are liable for payment of the tax in case of default by the lessee.”

Overview outlining tribal nations’ inherent sovereignty and authority to tax outsiders doing business on reservations.

4830. Mundell, Thomas C. “Constitutional Limitations on State Taxation of Indian Tribes.” Arizona State Law Journal, no. 2 (1982): 249–75. Tribal sovereignty predates the Constitution, but tax issues create contemporary conflicts between tribal nations and states. As tax conflicts unfold, the doctrine of federal preemption under the supremacy clause has been used to prohibit state taxation of individual tribal members and tribal enterprises. Other sections of the Constitution may play a greater role in future tribal–state taxation litigation, such as the Indian Commerce Clause and the due process and equal protection provisions of the Fourteenth Amendment.

4835. Nordhaus, Robert J., Emlen G. Hall, and Anne Alise Rudio. “Revisiting Merrion v. Jicarilla Apache Tribe: Robert Nordhaus and Sovereign Indian Control over Natural Resources on Reservations.” Natural Resources Journal 43 (Winter 2003): 223–84. Nordhaus was the attorney for the tribe in Merrion v. Jicarilla Apache Tribe wherein the Supreme Court ruled that tribes could tax non-tribal members’ oil and gas leases on the reservation. Based on interviews with Nordhaus twenty years after that seminal case.

4831. Mundell, Thomas C. “The Tribal Sovereignty Limitation on State Taxation of Indians: From Worcester to Confederated Tribes and Beyond.” Loyola of Los Angeles Law Review 15, no. 2 (1982): 195–226. In the realm of reservation taxation, the Supreme Court shifted from Marshall’s sovereignty doctrine to realism, but did not reject tribal sovereignty. Instead, the court established “a simple predicate to the invalidation of state taxation” of non-Indians on the reservations which is that the state tax is invalid if it creates “some actual land substantial interference with the tribal political structure before it will be invalidated.” Despite the seminal Williams case, the court did not follow the infringement test, but instead used principles of territoriality. More recently, federal preemption has become the more favored standard when the court cannot employ tribal sovereignty. 4832. Nayback, Kyle T. “Tax Law—New Mexico Taxes Non-Member Indians Who Work on a Reservation: New Mexico Taxation and Revenue Department v. Greaves.” New Mexico Law Review 25 (Winter 1995): 129–41. In another attack on tribal sovereignty, the New Mexico Court of Appeals extended the state’s taxing arm onto the reservations to tax income earned by Indians working on reservations who are not members of that community. 4833. Nielson, Paul. “Federal Taxation of Private Business of State Educational Institutions.” Iowa Law Review 19 (November 1933): 71–86. Includes a brief section on the Indian-Lease case including Burnet v. Coronado Oil & Gas Co. and a discussion of the special provisions affecting tribal land. 4834. Noble, Jim, Jr. “Tribal Power to Tax Non-Indian Mineral Lessees.” Natural Resources Journal 19 (October 1979): 969–95.

4836. Oringer, Andrew L. “Levies on Utilities for Sales on Reservations: To Tax or Not to Tax.” Gonzaga Law Review 20 (Spring 1984/1985): 375–401. A state collects a gross receipt utility sales tax from the seller of power to reservations. Federal preemption of state authority creates exempt and nonexempt groups. The state should be able to collect utility on sales to non-Indians but not on sales to Indians. 4837. Ott, Dennis G. “State Extension of Cigarette Sales Tax to Indians.” Idaho Law Review 11 (Fall 1974): 101–11. The Idaho State Supreme Court in Mahoney v. State Tax Commission ruled that the state did not have the authority to impose a cigarette tax on either tribal or non-tribal residents living on reservations in Idaho. 4838. Palmer, Michael D. “Taxation: Sales Tax Exemption of the Five Civilized Tribes.” American Indian Law Review 6, no. 2 (1978): 417–27. The Oklahoma Indian Welfare Act provides the authority for the Five Civilized Tribes to purchase lands. The question is whether the tribes will have to collect a two percent Oklahoma sales tax on lands purchased for business development. 4839. Perez, Richard L. “Indian Taxation: Underlying Policies and Present Problems.” California Law Review 59 (September 1971): 1261–98. Land has cultural and economic significance to tribal America and tribal trust land is immune from local or state taxation. The same is true for personal tribal property, and therefore possessory interest taxes violate tribal sovereignty. Since Congress has provided tribes special property tax status, courts should follow the principle that any state tax that infringes on federal Indian policy is void. 4840. Pirtle, Robert L. and Mason D. Morisset. Taxation and the Indian Tribal Governmental Tax Status Act.

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Seattle, WA: Pirtle, Morisset, Schlosser & Ayer, 1987. Includes discussion of tax principles, federal, tribal, and state taxes, the Indian Tribal Governmental Tax Status Act and the importance of tribes developing tax codes. 4841. Powell, Thomas Reed. “State Inheritance Taxes on Indians: A Critique of Oklahoma Tax Commission v. United States.” Columbia Law Review 44 (November 1944): 836–63. Worcester v. Georgia established the principles that restrict state power over Indian lands and people. After years of trying, Oklahoma succeeded in taxing tribal property. In so allowing, the court relied on its own policy and not Congress’s. 4842. Powers, Patrick E., Jr. “Taxation: State Possessory Interest Tax.” American Indian Law Review 6, no. 1 (1978): 231–35. The Fort Mojave Tribe decision ignored the tribal and allotted lands, but declared the tax valid on nonIndian lessees. The Indians suffer because they receive a smaller lease check after the taxes are paid. 4843. Putzi, Paul. “Indians and Federal Taxation.” New Mexico Law Review 2 (July 1972): 200–233. Examines the historical development of federal income taxation on restricted allotted lands and unallotted lands. There is no distinction between the two classes of reservation lands and neither is subject to federal taxes. 4844. Ragsdale, Fred L. Jr., “The Taxation of Natural Resources by Indian Tribes: Merrion, a Comment.” Natural Resources Journal 22 (July 1982): 649–58. The court in Merrion “upheld the tribal tax authority on the broad ground of inherent sovereignty.” The power to tax will not make them wealthy. 4845. Ralphs, Stewart P. “Taxation of Non-Indian Mineral Leases on Tribal Lands: Validity of Both Tribe and State Severance Taxes.” Journal of Energy, Natural Resources & Environmental Law 11, no. 1 (1990): 127–41. The Supreme Court in Cotton Petroleum Corp. v. New Mexico ruled that the tribe and the state could collect severance taxes from the same lessee. This double taxation may hurt both tribes and states in the future as outsider lessees may be reluctant to develop operations on reservations where double taxation occurs. 4846. Redhorse, David and Theodore Reynolds Smith. “American Indian Tribal Taxation of Energy Resources.” Natural Resources Journal 22 (July 1982): 659–71.

Merrion was “a milestone in Indian taxation.” The issue is not if the tribe has the power, but how to use that power when thinking about taxing reservation energy resources. 4847. Robinson, Robyn L. “A Discussion of the Application of FICA and FUTA to Indian Tribes’ onReservation Activities.” American Indian Law Review 25, no. 1 (2000–2001): 37–64. The IRS has asserted that Congress intends for such taxes to apply to tribes but not federal income taxes. But the IRS has not explained why this apparent discrepancy should exist. The Ninth Circuit Bankruptcy Appellate Panel shares the IRS’s position on the matter but neither the U.S. Court of Appeals nor the Supreme Court has addressed the issue. 4848. Rosenthal, Melissa A. “Where There Is Smoke There Is Fire: New York’s Battle to Collect Taxes on Cigarette Sales Made by Indian Retailers to Non-Indians: Mihelm Attea & Bros. v. Department of Taxation and Finance of the State of New York.” Hamline Law Review 17 (Spring 1994): 507–32. In this case, Indian traders claimed they were protected by tribal sovereign immunity and that the state could not force them to collect a state cigarette tax. The Court of Appeals disagreed. Since Congress will not act “courts need to remedy this situation by treating wholesalers and retailers the same when the ultimate taxing burden falls on the non-Indian.” 4849. “Sale of Cigarettes to Non-Indians on Reservations: Washington v. Confederated Tribes of Colville Reservation.” Tax Lawyer 34 (Winter 1981): 454–62. The Supreme Court undercut the Williams infringement test permitting Washington to force tribal sellers to collect a state cigarette tax from non-tribal members. State taxation is a serious threat to tribal self-determination. 4850. “Sale of Goods to Reservation Indians by NonIndians: Central Machinery Co. v. Arizona State Tax Commission and White Mountain Apache Tribe v. Bracker.” Tax Lawyer 34 (Winter 1981): 262–72. In Central Machinery, Arizona created a transaction privilege tax on farm tractors sold to the Gila River Tribe. The machinery company paid under protest and initiated proceedings against the state. In White Mountain Apache, the state enacted a carrier license tax and a fuel tax on the Pinetop Logging Company that operated solely from Fort Apache. In the White Mountain case, the Supreme Court held very close to the facts, providing a sign that state taxation may eventually enter the reservation under another ruling.

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4851. Saunders, Stella. “Tax—Tribal Taxation and Allotted Lands: Mustang Production Company v. Harrison.” New Mexico Law Review 27 (Spring 1997): 455–72. The Cheyenne and Arapaho passed a comprehensive tribal revenue and tax act in 1988 that provided for severance taxes on the reservation. The Tenth Circuit Court of Appeals decided that the tribe had the authority to enact a severance tax for oil and gas development and production on allotted lands because those lands were Indian Country and tribes have civil authority.

4856. Skibine, A. T. “High Court Blows Political Smoke in Cigarette Tax Cases.” American Indian Journal of the Institute for the Development of Indian Law 6 (July 1980): 2–5. Instead of following legal principles, the Supreme Court followed a political trail in Washington v. Confederated Tribes of the Colville Indian Reservation. The court extended their 1976 ruling in Moe permitting state authorities to force tribal venders to collect state cigarette taxes from non-tribal members on the reservation. This ruling hurts reservation economies.

4852. Savage, Mark. “The Great Secret About Federal Indian Law—Two Hundred Years in Violation of the Constitution—And the Opinion the Supreme Court Should Have Written to Reveal It.” New York University Review of Law & Social Change 20, no. 2 (1993): 343–72. Washington State does not have the constitutional authority to tax within the borders of the Yakama Nation as the court ruled in County of Yakima v. Confederated Tribes & Bands of the Yakima.

4857. Smith, Philip J. “The Tax Status Act and the Tax Reform Act of 1986—Current Effect on Indian Tribal Economic Development.” South Dakota Law Review 32, no. 3 (1987): 602–15. The 1982 Tribal Tax Status Act provided tribes with some, but not all of the tools they needed to forge economically ahead. Congress missed an opportunity to correct these problems in the 1986 Tax Reform Act. Congress wanted to place tribes on an equal footing with states, but failed because tribes are still subject to Congressional plenary power.

4853. Sears, Kelley D. “Indian Law—Taxation—Reservation Indian’s Income not Taxable If Derived From Reservation Sources—State Power over Reservation Indians Is Limited.” University of Kansas Law Review 22 (Spring 1974): 470–79. The McClanahan decision expanded the scope of federal authority over a state if that state action infringes on tribal self-rule. This is in contrast to the Williams case where a state was prohibited from entering into tribal actions because of infringement based on the specific case under review. Better definitions of pre-emption in the former and infringement in the latter are needed. 4854. Shagen, Paul. “Indian Country: The Dependent Indian Community Concept and Tribal/Tribal Member Immunity from State Taxation.” New Mexico Law Review 27 (Spring 1997): 421–53. Determining if a “dependent Indian community” status exists is important because it provides residents immunity from state taxation. 4855. Sirois, Jonathan I. “Remote Vender Cigarette Sales, Tribal Sovereignty, and the Jenkins Act: Can I Get a Remedy.” Duquesne Law Review 42 (Fall 2003): 27–111. The Jenkins Act requires cigarette sellers to report proceeds to state tax officials for the collection of the state excise tax, except when cigarettes are sold to enrolled tribal members. Because of tribal sovereignty, Indian vendors have been marketing cigarettes off the reservation to non-Indian buyers and have refused to follow the Jenkins Act.

4858. “State Jurisdiction—Indian Lands.” Gonzaga Law Review 7 (Spring 1972): 396–98. In a reservation cigarette tax case, Tonasket v. State, Washington State argued that when the Colville Reservation accepted state civil and criminal jurisdiction it also permitted the state to tax reservation activities. The Washington State Supreme Court ruled that the state had authority to collect a state cigarette tax from a tribal vendor. 4859. Stewart, Murray B. “Federal Tax Enforcement: Special Rules Applying to American Indians.” Tulsa Law Journal 11, no. 3 (1976): 330–46. Despite the array of laws affecting tribal federal taxes, there is no special unit to process tribal tax returns. This has assisted in creating taxation problems and discrepancies even on the same reservation. 4860. “Taxation-Indian Allotments Exempt from State Inheritance Tax.” Michigan Law Review 24 (June 1926): 865. Deals with the Quapaw in Oklahoma. Even though state law provided procedures for dealing with inheritance, the law did not include a state inheritance tax provision. 4861. “Taxation of Property on Indian Reservations.” Gonzaga Law Review 4 (Fall 1968): 113–14. Discusses efforts by the state of Washington to exercise its tax authority on the Quileute and Makah Reservations. 4862. Taylor, Scott A. “Enforcement of Tribal Court Tax Judgments Outside of Indian Country: The Ways and

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Means.” New Mexico Law Review 34 (Spring 2004): 339–79. Tax issues commonly give rise to emotional cross boundary conflicts between state and tribal courts. The best way to eliminate these disputes is through creation of tribal–state tax agreements. 4863. Taylor, Scott A. “State Property Taxation of Tribal Fee Lands Located Within Reservation Boundaries: Reconsidering County of Yakima v. Confederated Tribes & Bands of the Yakima Indian Nation and Leech Lake Band of Chippewa Indians v. Cass County.” American Indian Law Review 23, no. 1 (1998–99): 55–95. The Supreme Court in County of Yakima v. Yakima Indian Nation decided in 1992 that Congress intended local and state government to tax tribal fee lands inside a reservation’s border citing the General Allotment Act and the Burke Act. Neither act provided that authority, Taylor argues, but using the argument of congressional intent, the county won. 4864. Tixier, Susan. “Tribal Severance Taxes—Outside the Purview of the Commerce Clause.” Natural Resources Journal 21 (April 1981): 405–13. In Merrion v. Jicarilla Apache Tribe, the Tenth Circuit Court of Appeals ruled that a tribe’s power to enact a severance tax was outside the Commerce Clause’s scope. 4865. Trail, Mary Jean. “Federal Preemptions in Indian Law: An Analysis of White Mountain Apache Tribe v. Bracker and Central Machinery v. Arizona State Tax Commission.” Arizona Law Review 24, no. 1 (1982): 194–209. Arising from the supremacy clause, federal law preempts state law when the two authorities are in conflict. Pinetop Logging was a tribal company conducting tribal timber hauling for the Fort Apache Timber Company, a tribal corporation. Arizona wanted to tax the log haulers for damage to state roads. Since the federal government supervised the logging operation, the court dismissed the state’s claim under preemption. In the second case, Arizona sought to impose a transaction tax on farming equipment sold to Gila River farmers and the court held the tax invalid. 4866. Trost, Charles A. and Paul J. Hartman. Federal Limitations on State and Local Taxations, 2nd ed., 2 vols. St. Paul, MN: Thomson-West, 2003. Contains a section on “Federal Tax Immunity and Indians” dealing with reservation taxing authority and the tensions tribal governments and state governments face in seeking on-reservation revenues.

4867. Van Hove, Scott J. “Merrion v. Jicarilla Apache Tribe: Tribal Power to Tax Non-Indian Lessees Who Exploit Reservation Natural Recourses.” South Dakota Law Review 26 (Summer 1981): 595– 606. The Supreme Court decided in Merrion that the tribe may tax a non-member for developing and removing tribal resources from the reservation. 4868. Veeder, William V. “Tribal and State Taxation of Property and Activities within the Exterior Boundaries of Indian Reservations.” South Dakota Law Review 31 (Summer 1986): 602–26. The power to tax is an essential attribute of sovereignty, and as federal policies changed, so did the climate of tribal and state taxing authority on reservations. The most controversial conflict between tribes and states today is the power of the state to reach into the reservation and tax an activity. 4869. Vick, Margaret. “Challenging the Assessment of the California Timber Yield Act against Purchasers of Indian Timber.” Pacific Law Journal 13 (July 1982): 1325–43. Prior to 1976, California had an ad valorem tax system that exempted tribal timber, but in 1976, the California legislature passed a timber yield tax that assessed “timber owners, or, if the owner is an exempt entity, against the first non-exempt purchaser of the timber.” This state tax is an infringement on tribal self-government. 4870. Westbrook, Landon. “Taxation: State Taxation of Indian Transactions: The Test after Colville, White Mountain Apache, and Central Machinery.” American Indian Law Review 8, no. 2 (1980): 419–28. After these cases, the Supreme Court developed a three-prong test for state taxation suits within reservations. The questions involve federal preemption, determining a legitimate state interest, and whether the tax infringes upon tribal self-rule. 4871. White, Jay Vincent. Taxing Those They Found Here: An Examination of the Tax Exempt Status of the American Indian. Albuquerque: Institute for the Development of Indian Law, University of New Mexico, 1972. Taxation involves nearly every legal theory from tribal sovereignty to tribal sovereign immunity. The battles often occur between the tribes and state and local governments, and they escalated after the passage of P.L. 280. 4872. Whiteing, Jeanne S. “Tribal and State Taxation of Natural Resources on Indian Reservations.” Natural Resources & Environment 7 (Spring 1993): 17–19, 58–59.

Taxation

Dual taxation in the form of tribal and state severance taxes on reservation resources has hindered reservation resource development. This situation is the norm on most reservations and needs to be resolved through legislation. 4873. Whitson, Keith E. “State Jurisdiction to Tax Indian Reservation Land and Activities.” Washington University Journal of Urban and Contemporary Law 44 (Summer/Fall 1993): 99–134. Historically, states could not tax activities taking place within reservations. The Burger court changed that view by developing tests to determine when states could tax tribal activities, while the Rehnquist court wandered without a strong tax test. Congress did not legislate any state tax authorization, which would have been contrary to selfdetermination policy. To eliminate these tax conflicts, a test should be used that permits state taxing unless federal law or policy preempts taxing that tribal activity. 4874. Wiles, David B. “Taxation: Tribal Taxation, Secretarial Approval, and State Taxation—Merrion and Beyond.” American Indian Law Review 10, no. 1 (1982): 167–85. Colville opened the door to state taxation of nonIndians doing business on the reservation, and in Merrion, the Court ruled that the Jicarilla Apache can impose a severance tax on a non-Indian removing tribal resources from the reservation. State taxation was not prohibited but it cannot infringe on tribal self-rule.

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4875. William, Robert A., Jr. “Small Steps on the Long Road to Self-Sufficiency for Indian Nations: The Indian Tribal Governmental Tax Status Act of 1982.” Harvard Journal on Legislation 22 (Summer 1985): 335–97. Congress intended to remove some economic barriers to tribal self-sufficiency by opening the door for tribes to issue bonds to raise revenue by tapping into previously restricted funding areas. Congress should amend the act to give tribal nations the same tax status and advantages that other sovereigns enjoy. 4876. Williams, Susan M. “State Taxation on Indian Reservations: The Impact of Cotton Petroleum Corporation v. New Mexico.” Federal Bar News & Journal 36 (November 1989): 431–37. As federal funding decreases and tribes exercise more sovereignty, tribes must have the option of taxing reservation activities. There is a downside to double taxation when business operators complain to states that they are paying too much in tribal and state taxes to do business on the reservation. 4877. Williams, Susan and Kevin Gover. “State and Indian Tribal Taxation on Indian Reservations—Is It Too Taxing.” In 1989 Harvard Indian Symposium, 165–89. Cambridge, MA: President and Fellows of Harvard College, 1990. The 1989 term of the Supreme Court continued to attack tribal inherent sovereignty especially in the area of taxation. Tribal taxation will continue as federal funding diminishes. State taxation creates heavy burdens for Indian reservations, forcing tribes and states to negotiate reasonable tax compacts.

Chapter 47 Family Law and the Indian Child Welfare Act

4878. Aamot-Snapp, E. W. “When Judicial Flexibility becomes Abuse of Discretion: Eliminating the ‘Good Cause’ Exception in Indian Child Welfare Adoptive Placement.” Minnesota Law Review 79 (May 1995): 1167–96. State courts have misused ICWA’s “good exception provision” that provides an exception for the placement of the Native child in a tribal adoptive home contributing “to grossly disproportionate placement rates of Native American children outside their cultures.” Congress must amend ICWA to end this practice.

Overview of ICWA that provides guidelines for tribes to initiate the law’s provisions. 4882. Atwood, Barbara Ann. “Fighting over Indian Children: The Uses and Abuses of Jurisdictional Ambiguity.” UCLA Law Review 36 (August 1989): 1051–1108. As neither a state nor foreign nation, a tribe is “a jurisdictional anomaly” that creates unique legal puzzles, especially when dealing with Indian children and ICWA. Because cultural and tribal sovereignty are at stake, tribal courts are the preferred forums for tribal–state child custody disputes.

4879. Adams, Jill E. “The Indian Child Welfare Act of 1978: Protecting Tribal Interests in a Land of Individual Rights.” American Indian Law Review 19, no. 2 (1994): 301–51. This act is a rare illustration of group protection in a country of individual rights. State courts are the biggest violators, requiring the child to be an enrolled tribal member, refusing to transfer many cases to tribal courts, and limiting tribal court notification of paternal termination.

4883. Atwood, Barbara Ann. “Flashpoints under the Indian Child Welfare Act: Toward a New Understanding of State Court Resistance.” Emory Law Review 51 (Spring 2002): 587–676. ICWA’s ambiguous tribal identification creates problems for state courts. This is especially true if the child is of multiple heritages. State courts also want children to remain with the primary caregivers, often creating hostility with tribes. Still, the act strengthened tribal sovereignty.

4880. Allbaugh, Diane. “Tribal Jurisdiction over Indian Children: Mississippi Band of Choctaw Indians v. Holyfield.” American Indian Law Review 16, no. 2 (1991): 533–58. Both tribal and state courts have a delicate task before them in determining children’s best interests. No case better illustrates this difficulty than Holyfield in which tribal parents wanted a non-Indian couple to adopt their twins. The court ruled contrary to the parents’ wishes that the domicile of the mother determined the children’s domicile.

4884. Atwood, Barbara Ann. “Tribal Jurisprudence and Cultural Meanings of Family.” Nebraska Law Review 79, no. 3 (2000): 577–656. Examines tribal courts, tribal jurisprudence, and how their views on family views from the dominant culture’s understanding of kinship. 4885. Bakeis, Christine D. “The Indian Child Welfare Act of 1978: Violating Personal Rights for the Sake of the Tribe.” Notre Dame Journal of Law, Ethics & Public Policy 10, no. 2 (1996): 543–86. Critiques ICWA, which was intended to aid tribes, parents, and children, but denies tribal parents many rights. Congress should amend the act.

4881. American Indian Lawyer Training Program. Indian Child Welfare Act of 1978: “A Law for Our Children.” American Indian Lawyer Training Program: Oakland, September 1979. I-D-5.

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4886. Baron, Roger M. “The Resurgence of the ‘Tribal Interest’ In Indian Child Custody Proceedings.” Tulsa Law Journal 26 (Spring 1991): 315–46. State courts were slow to bring tribal courts into ICWA’s decision-making process. The key to making the law work is “tribal interest” and courts are moving in that direction. 4887. Barsh, Russel Lawrence. “The Indian Child Welfare Act of 1978: A Critical Analysis.” Hastings Law Journal 31 (July 1980): 1287–1336. Criticizes the act because it does not address reasons for tribal family rifts that Congress cited. Nor are tribal authorities involved in early intervention or case planning. It places tribal courts in an adversarial position. 4888. Barth, R. P., D. Webster, and S. Lee. “Adoption of American Indian Children: Implications for Implementing the Indian Child Welfare and Adoption and Safe Families Acts.” Children and Youth Services Review 24 (March 2002): 139–58. The ASFA stresses greater permanency for the child than does ICWA. Kinship adoption is higher for tribal children than others, but they stay in foster care longer. 4889. Bennett, Michelle K. “Native American Children: Caught in the Web of the Indian Child Welfare Act.” Hamline Law Review 16 (Spring 1993): 953–73. Concludes “cultural identity and best interests are not at cross-purposes but must be considered jointly to address both the development of cultural identity and a continuous stable family relationship.” 4890. Bouvier, Tracey M. “Examining the Interpretation and Application of the Indian Child Welfare Act of 1978.” In Native Americans and the Criminal Justice System, edited by Jeffrey Ian Ross and Larry Gold, 103–16. Boulder, CO: Paradigm Publishers, 2006. This legislation was necessary because of past U.S. efforts to deliberately disrupt Indian families. The act can potentially lead to positive consequences, but researchers have failed to uncover strong evidence of positive effects. Arizona courts have been able to act counter to the spirit of the act. 4891. Broadbent, Suzanne. “Legislation: Cooperation as the Key to Effectuation of the Indian Child Welfare Act.” American Indian Law Review 8, no. 2 (1980): 387–99. ICWA provides tribes with the opportunity to change a system that has ravaged tribal communities—state control of Indian child placement in foster homes outside the reservation. Exercising tribal sovereignty and cooperation between tribes and states will help the law succeed.

4892. Brooks, Catherine M. “The Indian Child Welfare Act in Nebraska: Fifteen Years, A Foundation for the Future.” Creighton Law Review 27 (April 1994): 661–708. Nebraska’s eventual “recognition of and support for the goals of the Indian Child Welfare Act have placed it in the forefront of the reform movement.” Expert witness qualifications need to be improved. 4893. Brooks, Juanita. “Indian Relations on the Mormon Frontier.” Utah Historical Quarterly 12 (January– April 1944): 1–48. Discusses the spiritual, ideological, and legislative bases for the Mormon practice of adopting Native children. Considerable attention is also devoted to describing Mormon–Native social relations, including marriage and child rearing. 4894. Buthod, Therese. “Children: An Analysis of Cases Decided Pursuant to the Indian Child Welfare Act of 1978.” American Indian Law Review 10, no. 2 (1982): 311–31. There was hope after the passage of ICWA that tribes would take the lead in placing Indian children in foster homes, but the large numbers of lower-court cases foretell trouble. 4895. Cohen, Warren H. “Divorce Filing Fees in Indian Tribal Courts: A First Look after Boddie v. Connecticut.” Law and the Social Order, Arizona State University Law Journal (1970): 541–57. The Supreme Court ruled that a state court could not prohibit indigents from getting a divorce even if they could not pay the filing fee. Since ICRA, it is likely that this case will apply to tribal courts in similar divorce actions. 4896. Connelly, Michael E. “Tribal Jurisdiction under Section 1911 (b) of the Indian Child Welfare Act of 1878 [sic]: Are the States Respecting Indian Sovereignty.” New Mexico Law Review 23 (Spring 1993): 479–97. The working relationship between tribal and state courts has had its successes and failures when following this section requiring the transfer of proceedings from state to tribal courts. States respect tribal rights to decline a case and tribal parental veto to tribal court, but state courts often refuse to transfer jurisdiction. 4897. Dale, Michael J. “State Court Jurisdiction under the Indian Child Welfare Act and the Unstated Best Interest of the Child Test.” Gonzaga Law Review 27, no. 3 (1991/1992): 353–91. Congress passed ICWA “to protect Native Americans, their tribes, and their children” without regard to outside parties. The “Best interests of Indian Children” test differs from the test applied in non-Indian

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cases. Despite defining several tests, state courts continue to claim authority to place tribal children outside the tribe based on western concepts of the best interest of the child. Any attempts to circumvent this law are inconsistent with congressional intent. 4898. Daugherty, Danelle J. “Children Are Sacred: Looking Beyond Best Interests of the Child to Establish Effective Tribal–State Cooperative Child Support Advocacy Agreements.” South Dakota Law Review 47, no. 2 (2001–2002): 282–315. Interstate child support laws recognize crossjurisdictional orders from tribal courts, but in reality tribal court orders are not always honored. With state courts on the offensive and tribal courts on the defensive, children’s best interests are not always met. The Pine Ridge tribal government has supported agreements with state courts, but the agreements will not work unless the state will abide by them. 4899. Davis, Toni Hahn. “The Existing Indian Family Exception to the Indian Child Welfare Act.” North Dakota Law Review 69, no. 3 (1993): 465–96. The Holyfield decision illustrates congressional intent to strengthen tribal involvement in Indian children’s futures, but states have evaded congressional intent in specific scenarios where there is an unwed mother or a non-Indian father. 4900. DuMonteir-Pierre, Debra. “The Indian Child Welfare Act of 1978: A Montana Analysis.” Montana Law Review 56 (Summer 1995): 505–37. Despite the law’s intent, the Montana Supreme Court has little faith in tribal courts. The state of Montana needs to follow the broad interpretation of Holyfield when handling ICWA cases. 4901. EchoHawk, Larry and Tessa Meyer Santiago. “Issue Paper: What Indian Tribes Can Do to Combat Child Sexual Abuse.” Tribal Law Journal 4 (2003–2004): online. http://tlj.unm.edu/articles/ Child sexual abuse reports reveal that this is a crucial Indian Country problem. These crimes will increase despite passage of ICWA and the 1990 Indian Child Protection and Family Violence Prevention Act. Other federal initiatives were also put into operation, but the tribes must think multi-jurisdictionally. They should create their own tribal task forces. 4902. Foster, Henry W. “Indian and Common Law Marriages.” American Indian Law Review 3 (Winter 1975): 83–102. Describes the evolution of tribal marriages within the American system. 4903. Gallagher, Brian D. “Indian Child Welfare Act of 1978: The Congressional Foray into the Adoption

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Process.” Northern Illinois University Law Review 15 (Fall 1994): 81–106. ICWA’s effectiveness remains debatable, but unlike other court child placement practices, it “is unique in the manner in which it balances individual and collective rights.” The act is still the best measure for tribal child home placement. 4904. Garner, Suzanne. “The Indian Child Welfare Act: A Review.” Wicazo Sa Review 9 (Spring 1993): 47–51. ICWA reversed previous termination policies. Funding is the only major barrier. 4905. Goldberg-Ambrose, Carole. “Heeding the ‘Voice’ of Tribal Law in Indian Child Welfare Proceedings.” Law & Anthropology 7 (1994): 1–26. ICWA made the reservation the domicile of the child, but many tribal children still live off the reservation and fall under the authority of state courts. The state system does not always meet the child’s or the extended parent’s needs. State judges are often leery of tribal courts for giving preference to tribal interests and not the child’s, but they should listen to the tribal courts. 4906. Goldsmith, Donna. “There Is Only One Child, and Her Name Is Children.” Federal Bar News & Journal 36 (November 1989): 446–51. Caught between disputing sovereigns, 50,000 tribal children are in homes outside their culture. It is apparent that ICWA has not achieved its goals. 4907. Goldsmith, Donna. “Individual vs. Collective Rights: The Indian Child Welfare Act.” Harvard Women’s Law Journal 13 (Spring 1990): 1–12. ICWA is examined in the context of Holyfield where an unwed Choctaw mother and the father wanted to place their twins in an off-reservation home. The tribe sued for custody and the Supreme Court ruled, “the domicile of a child born to a single mother traditionally is that of its mother.” This case illustrates that the tribe had different priorities than the biological parents. 4908. Gorman, Peter W. and Michelle Therese Paquin. “Custody and Ethnicity: Placing Native Children in Minnesota.” Bench and Bar of Minnesota 48 (August 1991): 22–6. Describes the cross-cultural issues and jurisdictional concerns that placement of Indian children creates in Minnesota. 4909. Graham, Lorie M. “‘The Past Never Vanishes’: A Contextual Critique of the Existing Indian Family Doctrine.” American Indian Law Review 23, no. 1 (1998–99): 1–54. ICWA, despite its flaws, has protected tribal families, but still one-fifth of Indian adoptees are placed

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outside tribal homes. State court challenges to the act are often based on the philosophy of the Existing Family Doctrine. 4910. Graham, Lorie M. “Reparations and the Indian Child Welfare Act.” Legal Studies Forum 25, nos. 2–3 (2001): 619–40. Compensation should be paid to tribal victims who were removed from their parents’ homes because that action was a human rights violation. 4911. Green, Jesse D. “Domestic Relations Jurisdiction in Montana: State ex rel. Firecrow v. District Court.” American Indian Law Review 3, no. 2 (1975): 459–67. The Montana Supreme Court ruled that the state had authority to proceed with the adoption, claiming jurisdiction over the proceedings despite tribal court claims. 4912. Guerrero, Manuel. “Indian Child Welfare Act of 1978: A Response to the Threat to Indian Culture Caused by Foster and Adoptive Placements of Indian Children.” American Indian Law Review 7, no. 1 (1979): 51–77. With ICWA, Congress attempted to fulfill one of its trust duties by protecting the cultural and tribal integrity of the tribal community. 4913. Hollinger, Joan Heifetz. “Beyond the Best Interests of the Tribe: The Indian Child Welfare Act and the Adoption of Indian Children.” University of Detroit Law Review 66 (Spring 1989): 451–501. One decade after ICWA’s passage, off-reservation placement of tribal children in non-tribal homes by state courts remains high due to high unemployment, lack of funding for tribal courts, and inadequate tribal facilities. Some tribal governments realize that they cannot handle the financial problems that accompany this responsibility. To make matters worse, “birth mothers, are desperately eager to leave the reservation themselves, or at least place their children with non-Indian couples.” 4914. Howell-Rom, Marcia L. “The State of the Act: The Indian Child Welfare Act in Minnesota after in the Matter of the Welfare of B.W. and in the Matter of the Welfare of M.S.S.” Hamline Law Review 14 (Spring 1991): 427–51. ICWA reduced Minnesota’s placement of Indian child in non-Indian foster homes, but the law still has a provision for terminating the parental–custodial rights of tribal parents. The “continual moral custody” definition should be employed instead of the western idea of “physical custody” when courts hear parental termination cases.

4915. Johnson, Joel. “Courts—Jurisdiction—State Assumption of Jurisdiction over Divorce Action between Enrolled Reservation Indians.” North Dakota Law Review 51 (Fall 1974): 217–23. Bad Horse v. Bad Horse began in 1937 when the Northern Cheyenne tribal council passed a resolution mandating that tribal marriages be done under state law. The Supreme Court of Montana maintained subject matter jurisdiction over the proceedings because the marriage had been in accordance with state laws. The Montana court ruled that a reservation is not a barrier “to state process servers.” 4916. Johnson, Troy R. “The State and the American Indian: Who Gets the Indian Child?” Wicazo Sa Review 14 (Spring 1999): 197–214. Gives history of Indian child placement prior to and since ICWA. The act has failed to resolve clearly who will decide how and where Indian children will be placed, as has been demonstrated in California. 4917. Jones, B. J. “The Indian Child Welfare Act: In Search of a Federal Forum to Vindicate the Rights of Indian Tribes and Children against the Vagaries of State Courts.” North Dakota Law Review 73, no. 3 (1997): 395–457. Congress passed ICWA with specific intent to provide tribal governments control over the placement of enrolled children in safe homes when they were in need of protection; this was essential to keep children near the tribal culture. State courts circumvent congressional intent and tribal sovereignty when state judges find creative ways to maneuver around the law. 4918. Jones, Mack T. “Indian Child Welfare: A Jurisdictional Approach.” Arizona Law Review 21, no. 4 (1979): 1123–45. ICWA included a full faith and credit provision to protect tribal nations’ rights to make child custody decisions. Tribal courts now have jurisdiction over reservation child custody, except when the child is off the reservation or the child is in physical danger. 4919. Keane, Coleen. “Policy Development by the People: The Navajo Child Care Standards Project.” Wassaja/Indian Historian 13 (November 1980): 34–36. In March 1979, the Navajo community and other organizations entered into an agreement with the BIA Social Services Department and designed a child program that focused on increasing parental involvement. This program followed the community approach to child foster care. The goal was to eliminate child out-of-home placement. 4920. Kawamoto, Walter and Tamara Cheshire. “American Indian Families: Resilience in the Face of Legal,

Family Law and the Indian Child Welfare Act

Economic, and Cultural Assault.” Race, Culture, Psychology, and Law, edited by Kimberly Holt Barrett and William H. George, 299–308. Thousand Oaks, CA: Sage Publications, 2005. The boarding schools damaged American Indian parents’ ability to parent, a tragedy ICWA and other recent legislation have attempted to address. Federal policy-makers must stop relying on stereotypes and respect American Indian humanity and sovereignty. 4921. Kerbeshian, Lynn A. “Indians—Domicile: Federal Definition of Domicile Determines Jurisdiction under Indian Child Welfare Act.” North Dakota Law Review 66, no. 3 (1990): 553–77. In 1989, the Supreme Court decided in Mississippi Band of Choctaw Indians v. Holyfield that Congress wanted a uniform and consistent residence in cases involving tribal children and ICWA. The court decided children involved in this suit were domiciled on the reservation. 4922. Kunesh, Patrice. “Transcending Frontiers: Indian Child Welfare in the United States.” Boston College Third World Law Journal 16 (Winter 1996): 17–34. Outside government interference is the first danger to tribal sovereignty and the second is the failure of tribal governments to exercise their self-governing powers fairly. ICWA provides tribal governments the ability to remove the second threat.

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4926. Lehmann, Michelle L. “The Indian Child Welfare Act of 1978: Does It Apply to the Adoption of an Illegitimate Indian Child?” Catholic University Law Review 38 (Winter 1989): 511–41. Examines the New Jersey case In re Adoption of a Child of Indian Heritage that declared ICWA did not apply in this situation. This case represented a split between state courts that placed children in tribal court and state courts that assumed authority over tribal child placement. Congress should pass legislative corrective amendments to end this split. 4927. Levine, Barry L. “The Indian Child Welfare Act: Federal Indian Law in State Probate Court Proceedings.” Michigan Bar Journal 65 (May 1986): 452–57. Highlights the complex act’s important aspects and discusses the problems associated with the nonrecognized tribes in Michigan. 4928. Lewis, Wendy. “The Role of Domicile in Adopting Indian Children: Mississippi Band of Choctaw Indians v. Holyfield.” Utah Law Review, no. 4 (1990): 899–922. This court decision put the tribe’s welfare before that of the adopted children despite the fact the children’s parents opted out of the tribal system.

4923. Kunesh-Hartman, Patrice. “The Indian Child Welfare Act of 1979: Protecting Essential Tribal Interests.” University of Colorado Law Review 60, no. 1 (1989): 131–67. Tribal communities look to the family as the center of tribal existence. Since state courts often fail to comply with ICWA, Congress should amend the act.

4929. Limprecht, Jane. “The Indian Child Welfare Act— Tribal Self-Determination through Participation in Child Custody Proceedings.” Wisconsin Law Review, no. 1 (1979): 1202–27. Congress’s intent in passing ICWA is to foster greater tribal autonomy and protect the child while promoting tribal stability. It is now up to state officials to determine if they will act as barriers to this legislation and tribal court decisions.

4924. Lacey, Linda J. “The White Man’s Law and the American Indian Family in the Assimilation Era.” Arkansas Law Review 40, no. 2 (1986): 325–79. Traces nineteenth and twentieth century assimilation policies and their effects on tribal families, lands, and social customs from the vantage of the law. The assimilation era polices should be clear warning to others of the results of government legal interference with a group’s family structure and values.

4930. Lopez, Antoinette Sedillo. “Evolving Indigenous Law: Navajo Marriage—Cultural Traditions and Modern Challenges.” Arizona Journal of International and Comparative Law 17 (Spring 2000): 283–307. The Means case challenged Navajo martial laws and the tribal courts’ creativity in maintaining law and order. By marrying a Navajo, he consented to Navajo justice. The tribe enacted an excellent Domestic Relations Code in 1993.

4925. “Legal Status of the Indians—Validity of Indian Marriages.” Yale Law Journal 13 (March 1904): 250–52. The Oregon Supreme Court upheld the validity of tribally based marriages based on tribal sovereignty even if the individuals took an allotment and were citizens of the state and nation. Despite the policy of assimilation, the tribal members lived as tribal residents and tribal law would be followed.

4931. McCartney, Gaylene J. “The American Indian ChildWelfare Crisis: Cultural Genocide or First Amendment Preservation.” Columbia Human Rights Law Review 7 (Fall–Winter 1975–76): 529–51. The history of state courts placing Indian children in non-Indian homes denies tribal people the right to raise their children within their communities. To ensure that this right to heritage is preserved, tribal

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governments must become increasingly involved and make the concept of tribal sovereignty meaningful.

initially consented to, but then minds changed and the matter went to court.

4932. McEachron, Ann E., Nora S. Gustavsson, Suzanne Cross, and A. Lewis. “The Effectiveness of the Indian Child Welfare Act of 1987.” Social Service Review 70 (September 1996): 451–63. ICWA has been “tentatively” effective in reducing off reservation and non-Indian adoptions of tribal children and foster care placement.

4938. Metteer, Christine. “Hard Cases Making Bad Law: The Need for Revision of the Indian Child Welfare Act.” Santa Clara Law Review 38, no. 2 (1998): 419–72. Despite the Holyfield ruling, state courts continue to circumvent the law’s intent, forcing Congress to amend the law to rein in “state courts’ independent interpretation of the ICWA.” The amendments are especially needed in the cases involving an Indian child and non-Indian adoptive parents.

4933. Madrigal, Luke. “Indian Child Welfare Act: Partnership for Preservation.” American Behavioral Scientist 44 (May 2001): 1505–11. In southern California, the Indian Child and Family Services was created in 1980 to carry out ICWA on thirty-three reservations. The organization, after twenty years, has served as a licensed foster care facility and adoption organization and also works in other problem areas, including alcoholism and domestic violence. 4934. Maillard, Kevin Noble. “Parental Ratification: Legal Manifestations of Cultural Authenticity in CrossRacial Adoption.” American Indian Law Review 28, no. 1 (2003–2004): 107–40. Looks at trans-racial adoption with special focus on African-Americans and Native Americans. The Existing Indian Family exception to ICWA prevents “demographically qualified parents” from adopting because they do not fit “majoritarian” conceptions of “blackness” or “Indianness.” 4935. Maraousek, Linda A. “The Indian Child Welfare Act of 1978: Provisions and Policy.” South Dakota Law Review 25 (Winter 1980): 98–115. Credits ICWA for being an instrument for changing past problems of Indian child foster care. 4936. Matheson, L. “The Politics of the Indian Child Welfare Act.” Social Work 41 (March 1996): 224–31. After tracing the history and congressional intent of ICWA, discusses the steps that a social worker should follow. These include the importance of identifying the child’s tribal identity and providing the tribe with the opportunity to assume jurisdiction over the child. 4937. Metteer, Christine. “The Existing Indian Family Exception: An Impediment to the Trust Responsibility to Preserve Tribal Existence and Culture as Manifested in the Indian Child Welfare Act.” Loyola of Los Angeles Law Review 30 (January 1997): 647–91. The California Court of Appeals for the Second District ruled that ICWA did not apply to children when their parents were “fully assimilated into nonIndian culture.” An adoption in this case had been

4939. Metteer, Christine. “Pigs in Heaven: A Parable of Native American Adoption under the Indian Child Welfare Act.” Arizona State Law Journal 28 (Summer 1996): 589–628. The California case re Bridget R. brought ICWA’s constitutionality into question. The lawsuit began when reference to tribal ethnicity was removed from a questionnaire. After filling it out, the parents relinquished the children. The father and the Pomo Nation wanted them back. The California appeals court ruled that the law was “not constitutional” when applied to children taken from parents without a sufficient “social, cultural or political relationship with the Tribe.” 4940. Miles, Marilyn Meissner. “Custody Provisions of the Indian Child Welfare Act of 1978: The Effect on California Dependency Law.” University of California, Davis, Law Review 12 (Summer 1979): 647–72. California tribes, for the first time since the passage of Public Law 280, can reassert jurisdiction over child adoption thanks to ICWA. 4941. Miller, Dorothy L., Fred Hoffman, and Denis Turner. “A Perspective on the Indian Child Welfare Act.” Social Casework: The Journal of Contemporary Social Work 61 (October 1980): 468–71. ICWA is intended to keep children in tribal homes where culture and family are found. Caseworkers must understand the spirit of the new law. 4942. Mills, Robert F. “The Indian Child Welfare Act of 1978: The Massachusetts Dilemma.” Boston College Third World Law Journal 4 (January 1984): 205–19. Congress took the first step to place the tribal child’s best interests forward with ICWA, but the law fails to examine the problem of state-recognized Indians who are not federally recognized, as is the case in Massachusetts. To correct this problem, the state legislature should enact a bill modeled after the federal statute. 4943. Monsivais, Jose. “A Glimmer of Hope: A Proposal To Keep the Indian Child Welfare Act of 1978 Intact.”

Family Law and the Indian Child Welfare Act

American Indian Law Review 22, no. 1 (1997–1998): 1–36. ICWA has been controversial, particularly at the state level where courts are not aware of all the act’s ramifications or are hostile toward it. Awareness may encourage more states to support the act, but Congress has to amend the act to close gaps that fail to take all parties’ interests into account. 4944. Murray, Jeffery. “Recent Decisions.” Duquesne Law Review 28 (Spring 1990): 589–617. Placement of Indian children in non-Indian foster homes has created child adjustment problems and endangered tribal culture. The first major case involving off-reservation placement reached the Supreme Court in Mississippi Band of Choctaw Indians v. Holyfield, wherein the court ruled in 1989 that a child’s domicile was on the reservation even if born off the reservation. 4945. Myers, Joseph A. They Are Young Once but Indian Forever: A Summary and Analysis of Investigative Hearings on Indian Child Welfare, April 1980. Oakland, CA: American Indian Lawyer Training Program 1980. Provides information for tribes and their attorneys on how to implement ICWA, enter into state–tribal agreements, and handle constitutional challenges. The transcript of a training program is also included. 4946. Null, David. “In Re Junious M.: The California Application of the Indian Child Welfare Act.” Journal of Juvenile Law 8, no. 1 (1984): 74–86. In 1983, the California Court of Appeals in in re Junious M. v. Diana L. established the first state procedure to implement ICWA. Since a large number of tribal members are urbanized, this case demonstrates a weakness in the law. The trial court discovered that the mother was eligible for membership, but that decision was overturned on appeal. 4947. Opland, David V. “Marriage and Divorce for the Devils Lake Indian Reservation.” North Dakota Law Review 47 (Winter 1971): 317–34. Discusses domestic law and the Devils Lake tribal government’s decision to include marital law in the tribal code. This is part of the regulatory aspect of tribal self-rule that is essential to increasing a tribal government’s independence. 4948. Phillips, Sloan. “The Indian Child Welfare Act in the Face of Extinction.” American Indian Law Review 21, no. 2 (1997): 351–64. After some very high profile Indian child adoption cases, Congress amended ICWA in 1996. Many tribal leaders who opposed the amendments were unjustifiably forced to support them or face the full force of

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the Adoption Promotion and Stability Act to shorten the time for approving inter-racial adoptions. 4949. Rank, Nancy. “Beyond Jursidpudential Midrash: Toward a Human Solution to Title IV-D Child Support Enforcement Problems across Indian Country Borders.” Arizona Law Review 33, no. 2 (1991): 337–82. The Social Security Act’s Title IV-D legislated that a parent seeking assistance from the Aid to Families with Dependent Children program is required to give any child support payments to the state. This must be done before pursuing legal action against the other parent. Collection sometimes requires the state to cross state lines and reservation lines. When that occurs, it must be decided if the tribal court is the proper forum, and also if tribal court jurisdiction is exclusive. 4950. Renner, John Robert. “The Indian Child Welfare Act and Equal Protection Limitations on the Federal Power over Indian Affairs.” American Indian Law Review 17, no. 1 (1992): 129–74. The original act was proper and appropriate for the time and its purpose, but the proposed 1988 amendments go too far beyond tribal communities and include Native Americans and “that violates the equal protection component to the Fifth Amendment.” 4951. Ruffin, Sandra C. “Postmodernism, Spirit Healing, and the Proposed Amendments to the Indian Child Welfare Act.” McGeorge Law Review 30 (Summer 1999): 1221–68. ICWA has spurred the creation of tribal juvenile codes and agreements that permit state courts to enforce tribal court orders when a deadbeat parent is off the reservation. 4952. Saffouri, Hasan. “Comment—The Good Cause Exception to the Indian Child Welfare Act’s Placement Preferences: The Minnesota Supreme Court Sets a Difficult (Impossible) Standard.” William Mitchell Law Review 21 (Summer 1996): 1191–1224. ICWA defends tribal sovereignty and integrity and seeks to determine the best interests of the Indian child, but sometimes the interests of the child and tribe may be at odds. This was true in S.E.G. where the children were in an abusive home and required special needs justifying the implementation of the “good cause” provision permitting the child to be place in a non-Indian foster home. Minnesota Supreme Court sets a very high standard making it nearly impossible for a non-Indian family to take in an Indian child. 4953. Schnuelle, Kim Laree. “When the Bough Breaks: Federal and Washington State Indian Child Welfare

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Law and Its Application.” University of Puget Sound Law Review 17 (Fall 1993): 101–38. The Washington Indian Child Welfare Action Consortium was created in 1976 to oversee Indian child welfare and published the Washington State Indian Child Welfare Manual to clarify procedures. 4954. Simson, Helene. “Domestic Relations.” New Mexico Law Review 14 (Winter 1984): 135–51. During the past year, the New Mexico Supreme Court decided two cases pertaining to tribal domestic relations, Lonewolf v. Lonewolf and State ex rel. Department of Human Services v. Jojola. The former involved property division and the latter concerned paternity and child support. 4955. Snyder, Michael C. “An Overview of the Indian Child Welfare Act.” St. Thomas Law Review 7 (Summer 1997): 815–43. Describes ICWA’s purpose, related court actions, and various sections of the legislation. 4956. Stetson, Catherine Baker. “Conflict of Laws: The Plurality of Legal Systems: An Analysis of 25 U.S.C. §1901–63, The Indian Child Welfare Act.” American Indian Law Review 8, no. 2 (1980): 333–60. Tribes had to follow state adoption laws, but ICWA codified federal and state law to reduce the tension in the current system. The act is important, but its goals could have been reached other ways. 4957. Stiffarm, Denise L. “The Indian Child Welfare Act: Guiding the Determination of Good Cause to Depart from the Statutory Placement Preferences.” Washington Law Review 70 (October 1995): 1151–74. ICWA has a good clause provision that permits the placement of an Indian child outside of a tribal foster home. This section of the act’s language is vague as it does not define good cause which state courts therefore differ in defining. To correct this shortfall, guidelines need to be developed. 4958. “The Supreme Court of Indiana, November Term, 1862, John Roche vs. Francis Washington.” American Law Register 11 (January 1863): 170–76. The Miami were removed from Indiana in 1840 by treaty. Two members of the tribe stayed behind and married according to Miami custom, but the marriage was invalidated by the Indiana courts for being contrary to state law. 4959. Taylor, Richard B. “Curbing the Erosion of the Rights of Native Americans: Was the Supreme Court Successful in Mississippi Band of Choctaw Indians v. Holyfield?” Journal of Family Law 29, no. 1 (1990–1991): 171–89. The Supreme Court’s 1989 decision in Holyfield addressed domicile, which ICWA had not. To prevent

troubles, states should pass legislation placing state courts under ICWA and federal courts should review these proceedings. 4960. Thompson, Edward L. “Protecting Abused Children: A Judge’s Perspective on Public Law Deprived Child Proceedings and the Impact of the Indian Child Welfare Act.” American Indian Law Review 15, no. 1 (1989): 1–114. Informs the reader of the dos and don’ts when dealing with abused tribal children. Pretrial issues, pleadings, shelter care, and emergency actions are discussed, as well as hearings ending parental rights. Parents still have rights, as do tribes. Related legislation is also detailed and explained including the Holyfield decision. 4961. Trentadue, Jesse C. and Myra A. DeMontigny. “The Indian Child Welfare Act of 1978: A Practitioner’s Perspective.” North Dakota Law Review 62, no. 4 (1986): 487–537. Congress passed this act to protect tribal identities and families, but state courts often do not follow its provisions. State decisions are vulnerable to disclosure when lawyers and social workers are subject to civil redress. 4962. Turcotte, Cindy. “Indian Child Welfare Act—Domicile of an Illegitimate Child—A Step toward State and Tribal Cooperation in Indian Child Custody Proceedings: Adoption of Baby Child, Pino v. Natural Mother.” New Mexico Law Review 16 (Spring 1986): 377–93. In this case, the mother was from Laguna Pueblo and the New Mexico Court of Appeals ruled that the illegitimate child assumes the domicile of her mother at the time of birth. This decision gave the tribal court authority over the child’s future. 4963. Twomey, Joseph G. “Considering a Native American Child’s Needs for Permanent Placement under the Indian Child Welfare Act: In re S.E.G., A.L.W., & V.M.G.” Hamline Law Review 18 (Winter 1994): 281–304. The Minnesota Supreme Court heard a non-Indian family’s plea for their three tribal children because of continual parental abandonment. The court ruled that this situation did not force the good clause issue. 4964. Uthe, Lynn Klicker. “Best Interests of Indian Children in Minnesota.” American Indian Law Review 17, no. 1 (1992): 237–68. ICWA mandates that the child’s best interest is the most important concept that a court must consider in a tribal child placement case. This act furthers the federal interest in protecting tribal culture and sovereignty.

Family Law and the Indian Child Welfare Act

4965. Voss, Ivy N. “In the Best Interest: The Adoption of F. H., an Indian Child.” BYU Journal of Public Law 8, no. 1 (1993): 151–71. ICWA was intended to prevent further tribal family destruction, but has brought tribal and non-tribal values into conflict. The non-Indian social systems have placed the individual child and parental preference first, but tribes consider that too rigid and outside of tribal values as tribal courts put forth their best interests for tribal children and families. 4966. Walters, Jennifer L. “In Re Elliott: Michigan’s Interpretation and Rejection of the Existing Indian Family Exception to the Indian Child Welfare Act.” Thomas M. Cooley Law Review 14, no. 3 (1997): 633–52. State courts have expounded on family exception to continue placing Native children in non-Indian foster care, depriving them of their heritage. The Supreme Court or Congress must strike the current state court exception practice. 4967. Wamser, Garry. “Child Welfare under the Indian Child Welfare Act of 1978: A New Mexico Focus.” New Mexico Law Review 10 (Summer 1980): 413–29. Explains ICWA’s purpose. There will be problems between the states and the tribes when the law is implemented. Wamser suggests five actions to make the transition smoother. 4968. Watts, Stan. “Voluntary Adoptions under the Indian Child Welfare Act of 1978: Balancing the Interests of Children, Families, and Tribes.” Southern California Law Review 63 (November 1989): 213–56. The Supreme Court’s Holyfield decision dealt with problems that voluntary adoptions create under ICWA. Regarding voluntary adoptions, “Congress did intend state courts to apply a uniform federal definition of” home residence, contrary to Holyfield. The domicile of the child, not that of the parents, is what matters. 4969. Weaver, Hilary N. and Barry J. White. “Protecting the Future of Indigenous Children and Nations: An Examination of the Indian Child Welfare Act.” In Health and the American Indian, edited by Priscilla A. Day and Hilary N. Weaver, 35–50. New York: Haworth Press, 1999. Many social workers and other affected parties are not aware of the act’s existence or of its particulars. This fact, coupled with inadequate funding, limit its potential utility. The authors provide background information about the act and make recommendations to those responsible for implementing it. 4970. Westphal, Amanda B. “An Argument in Favor of Abrogating the use of the Best Interests of the Child

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Standard to Circumvent the Jurisdictional Provisions of the Indian Child Welfare Act in South Dakota.” South Dakota Law Review 49, no. 1 (2003–2004): 107–40. Challenges this provision. Since the test that is applied is a western concept and ICWA wanted tribal courts to take a lead role in placing tribal children in foster homes, the tribal court is the best forum to make such decisions. 4971. Wexler, Lesley M. “Tribal Court Jurisdiction in Dissolution-Based Custody Proceedings.” University of Chicago Legal Forum (2001): 613–52. More than 50 percent of tribal children have a nonIndian parent, creating legal issues for the entire family when a divorce occurs and the non-tribal parent seeks state ordered custody and the tribal parent seeks a tribal court ordered custody. Uniform child custody statutes are failing. Dissolution-based custody should be instituted so that states will respect ICWA and tribal sovereignty. 4972. Wilson, Alissa. “The Best Interests of Children in the Cultural Context of the Indian Child Welfare Act in in re S.S. and R.S.” Loyola University Chicago Law Journal 28 (Summer 1997): 839–94. ICWA gave greater authority to tribal courts, exclusive and concurrent, in the area of tribal child placement, forums that have greater understanding of tribal protocol. The only Supreme Court ruling on this act is the Mississippi Band of Choctaw Indians v. Holyfield, forcing the Illinois Supreme Court to decide on the placement of two Indian children living in the state, far from their Montana reservation. The state’s high court sent the case back to trial court to determine if the mother had abandoned the children, and if not, their domicile was the reservation and the tribal court would make decisions for the children’s welfare. This case focused on cultural welfare, not child well-being and the Illinois court created more troubles by applying state child abandonment to a federal statute. 4973. Woods, Karen M. “A ‘Wicked and Mischievous Connection’: Origins and Development of Indian–White Miscegenation Law.” Legal Studies Form 23, nos. 1–2 (1999): 37–70. Explores the colonial and early federalist period of American history during which bans prohibited Indian–English and Indian–American marriages. 4974. Woodward, David. “The Rights of Reservation Parents and Children: Cultural Survival or the Final Termination?” American Indian Law Review 3, no. 1 (1975): 21–50. The Association on American Indian Affairs determined in 1974 that over one fourth of all tribal children were removed from homes and placed in

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white communities. This cultural destruction represents the final termination of tribal America. 4975. Zehnder, Michelle. “Who Should Protect the Native American Child: A Philosophical Debate between the Rights of the Individual Versus the Rights of the Indian Tribe.” William Mitchell Law Review 22, no. 3 (1996): 903–51. There is a pecking order on reservations regarding child protection. Non-Indian children are the most

protected, and Indian children abused by adult Indians the least. In 1994, Congress amended the Major Crimes Act by providing federal authority to prosecute tribal parents who abuse their children since the tribe would often not intervene in these situations. This change creates tension between supporters of tribal sovereignty and children’s rights. Zehnder prefers to err on the side of children because they deserve protection.

Chapter 48 Poverty, Housing, Welfare, and other Social Services

4976. Berman, Tressa. “‘All We Needed was Our Gardens’: Women’s Work and Welfare Reform in the Reservation Economy.” In Native Pathways: American Indian Culture and Economic Development in the Twentieth Century, edited by Brian Hosmer and Colleen O’Neill, 133–55. Boulder: University of Colorado Press, 2004. Federal welfare reform may violate the federal–tribal trust relationship, and the resulting effects can by observed in the daily lives of women on the Fort Berthold reservation. Welfare reform has threatened the reservation economy, but women there have found ways to weather economic difficulties. Informal Native economies can adapt and “intertwine” with formal ones.

4979. Cortelyou, George H. “An Attempted Revolution in Native American Housing: The Native American Housing Assistance and Self-Determination Act.” Seton Hall Legislative Journal 25, no. 2 (2001): 429–67. HUD was not always applicable to reservations and poor housing conditions resulted. This act is meant to open private credit and join it with federal funding programs, creating one flexible grant that tribal housing authorities can use as they see fit. 4980. Dillsaver, Joe D. “Indian Rights: Eligibility of Indians for State Assistance.” American Indian Law Review 4, no. 2 (1976): 289–94. As citizens, but wards, states began opposing tribal requests for state relief as early as 1938 in Montana. After the war, the battle spread to other states with large tribal populations and reached some closure in Morton v. Ruiz, when the court ruled that tribal members were eligible to receive state assistance.

4977. Blue, Martha and Sarah W. Barlow. “An Analysis of the Bureau of Indian Affairs General Assistance Program.” North Dakota Law Review 51 (Fall 1974): 31–51. The BIA operates a welfare program for needy tribal people who are ineligible for Social Security benefits or whose applications are in review. Morton v. Ruiz has been the only case to reach the Supreme Court regarding the rules of that assistance. The Bureau is revising its assistance manual, thus opening the door for tribal input to change the current regulations.

4981. Duin, Virginia Nolan. “The Problems of Indian Poverty: The Shrinking Land Base and Ineffective Education.” Albany Law Review 36, no. 1 (1971): 143–81. The best way to end tribal poverty, education failures, and cultural assimilation is to settle outstanding tribal claims that are still before the ICC. Congress must also pass Senate bill 835 (ANCSA), which will provide more lands to Alaskan Natives.

4978. Cobb, Daniel M. “‘Us Indians Understand the Basics’: Oklahoma Indians and the Politics of Community Action, 1964–1970.” Western Historical Quarterly 33 (Spring 2002): 41–66. Studying Oklahoma Indian involvement in the OEO Community Action Programs of the War on Poverty era, Cobb offers an example of how ethnohistorical approaches can improve histories of Indian policy.

4982. Ferrell, Susan J. “Indian Housing: The Fourth Decade.” St. Thomas Law Review 7 (Summer 1997): 445–60. Historical overview of tribal housing noting that it has taken a great stride forward from the days when one-house design was all that was available on any reservation. The legal counsel for the Public Housing

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Administration decided that the 1937 Housing Act provided the authority to develop the Mutual Help Ownership Opportunity Program that replaced the BIA housing program, and the first Mutual Help Housing Project was started at San Carlos in 1964. Today, HUD attempts to meet the two goals of economic efficiency and cultural sensitivity. 4983. Hargreaves, Margaret Barnwell and Hedy Nai-Li Chang. Evaluating the Impact of Federal Welfare Reform Legislation in Indian Country: A Case Study of the Rosebud Sioux Reservation. Harvard Project on American Indian Economic Development, John F. Kennedy School of Government, Cambridge, MA: Harvard University, April 1989. The Family Support Act of 1988 is designed to move AFDC recipients to permanent employment. Tribal officials must understand the act to resolve welfare dependency. To make the act succeed, tribal governments have to deal with outside forces beyond the Family Support Act that focuses on women and children and neglects male unemployment. 4984. Ingram, John McGee. “Home Ownership Opportunities in Indian Country.” Journal of Affordable Housing & Community Development Law 7 (Winter 1998): 164–86. The 1996 Native American Housing Assistance and Self-Determination Act is one of the most significant pieces of housing legislation enacted for tribal America since the first HUD programs. The law collected all the housing programs into one program that consists of a block grant given to tribes for their housing needs. This act reaffirms the government-togovernment relationship between tribal nations and the U.S. 4985. Keller, George. “Housing Hurdles: Experiences of the Oneida Indian Nation.” St. Thomas Law Review 7 (Summer 1997): 461–63. The Oneidas, in 1991, created their own tribal Housing Authority. The tribe’s plan was to use federal seed money to begin the project and then supplement those funds with tribal dollars. 4986. Kenison, Robert S. “Implementing NAHASDA: Brave New Word?” Journal of Affordable Housing & Community Development Law 8 (Spring 1999): 253–63. In 1996, Congress passed the Native American Housing Assistance and Self-Determination Act. Based on tribal custom and the importance of cultural norms, this law received a “less comprehensive regulatory” procedure than other HUD legislation. This law also provides new tribal discretionary program grants to tribes outside of existing programs.

4987. Lam, James. Evaluating the Impact of Federal Welfare Reform Legislation in Indian Country, Harvard Project on American Indian Economic Development, John F. Kennedy School of Government, Cambridge, MA: Harvard University, May 1997. The 1996 Personality Responsibility and Work Reconciliation Act replaced the Aid to Families with Dependent Children section of the Social Security Act with the Temporary Assistance for Needy Families program. Tribes will have the option of operating their own program. The Standing Rock Reservation should not implement its own program due to lack of matching state funds. 4988. Levitan, Sar A. and William B. Johnston. Indian Giving: Federal Programs for Native Americans. Baltimore. MD: Johns Hopkins University Press, 1975. Describes conditions on reservations and the need to reduce reservation poverty. It examines the federal programs that tribal members may participate in and has chapters that discuss education programs, health, forest resources, mineral development, and industrial opportunities. 4989. Lewis, Bernard L. “State and Local Governments: Relief: Right of Indians to Indigent County Relief While Living on a Federal Reservation.” UCLA Law Review 2 (December 1954): 143–45. In Acosta v. San Diego County, a tribal member sought county relief while living on trust land on a reservation. The District Court of Appeals ruled that she was a resident and therefore eligible for assistance. The bigger picture is that there is only so much aid, it is unevenly distributed, and federal authorities should be involved in assisting tribal members. 4990. Meyer, Alison Joan. “Modern Problems in HUD Indian Housing Authorities.” Oklahoma City University Law Review 16 (Summer 1991): 441–64. In 1962, HUD made housing authorities available to dependent Indian communities and, in turn, tribal governments created housing authorities that follow HUD regulations and ICRA. Meyer discusses “the unconstitutionality of forcible entry and detainer actions,” and stresses that tribal HUD provides the correct forum for dispute resolution. 4991. Nguyen, Mariah Nhu and Derrick H. Robinson. The Elder Multicultural Care Project: Feasibility Study. Harvard Project on American Indian Economic Development, John F. Kennedy School of Government, Cambridge, MA: Harvard University, April 1998. The Bay Area Native American Ministries planned for an elder health care program due to the poverty of elderly tribal members and the lack of services for this population. Due to the small population of

Poverty, Housing, Welfare, and other Social Services

elderly Natives in the area, the study supports a multigenerational housing program or an elderly transportation and social program. 4992. Segal, Elizabeth A. and Keith M. Kilty, eds. Pressing Issues of Inequality and American Indian Communities. New York: Haworth Press, 1998. Essays by various authors stress Native inequality of opportunity and poverty, and consider the effects of welfare reform and increasing tribal economic independence. 4993. Shepard, Dustan. “The Native American Housing Market.” Journal of Lending & Credit Risk Management 80 (October 1997): 36–39. When negotiating a lending arrangement with tribal America, it must be remembered that tribes are sovereigns that have social and economic responsibilities. Shepard’s First Mortgage Corp. has worked with members of ten tribes to provide housing loans. Indian Country is a vast underdeveloped residential real estate market. Includes a discussion of Section 184 lien rules. 4994. Sorkin, Alan L. American Indians and Federal Aid. Washington, DC: Brookings Institution, 1971. No two reservations are alike, but poverty is a common denominator. Despite the removal of nearly all restrictions on tribal people, except oversight of their trust property, tribal people will be denied full citizenship rights. Also analyzes federal programs enacted for tribal people and their successes and failures. 4995. Sternberg, Arnold C. and Catherine M. Bishop. “Indian Housing: 1961–1971, A Decade of Continuing Crisis.” North Dakota Law Review 48 (Summer 1974): 593–616. Examines the current status of tribal housing, defining the categories of tribal housing, the role of the BIA, OEO, and HUD. The tribal housing crisis was recognized in a 1961 Task Force on Indian Af-

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fairs report. Ensuing reports revealed that housing for Indians was worse than for any other group. 4996. Stromwall, Layne K., Stephanie Brzuzy, Polly Sharp, and Celina Anderson. “The Implications of ‘Welfare Reform’ for American Indian Families and Communities.” In Pressing Issues of Inequality and American Indian Communities, edited by Elizabeth A. Segal and Keith M. Kilty, 1–15. New York: Haworth Press, 1998. Studies the effects of the Temporary Assistance for Needy Families block grant and modifications to it through the Balanced Budget Act of 1997 among Arizona Indian families. Welfare reform is unlikely to create greater employment opportunities for these families without extensive economic development efforts. 4997. Ulmer, Mark K. “The Legal Origin and Nature of Indian Housing Authorities and the HUD Indian Housing Programs.” American Indian Law Review 13, no. 2 (1985): 109–74. Examines the development and legal nature of Indian Housing Authorities and their relationship to tribal government. Some tribal departments are mandated in a tribal ordinance, while others are extensions of tribal government with the goal of providing improved housing for tribal members. IHAs are also protected by sovereign immunity. 4998. Wolf, Roger C. “Needed: A System of Income Maintenance for Indians.” Arizona Law Review 10 (Winter 1968): 597–616. Tribes have not fared well under state and federal welfare programs. To remedy this situation, a negative income system is necessary to replace the current system. Historically, reservations were isolated from employment and that reality creates problems today. The BIA tribal work experience program is better than the state programs. The state and federal welfare systems are inequitable, requiring an income maintenance system to participate.

Chapter 49 Health Care: Twentieth-Century Policy and Patient Rights

The Eighth Circuit Court of Appeals expanded BIA duties by ordering the agency to dispose of a solid waste dump on the Pine Ridge Reservation. The IHS and the Pine Ridge tribal council were also charged with assisting in the solid waste removal. The court ruled that the Bureau had this duty under the Snyder Act, which required the agency to spend money for relief and health.

4999. Adams, Alycee and Martin Marchiniak. The Impact of the American Indian Health Security Act on Native Americans: A Report to the Grand Traverse Band of Ottawa and Chippewa Indians. Harvard Project on American Indian Economic Development, John F. Kennedy School of Government, Cambridge, MA: Harvard University, April 1994. Despite six health plans in Congress, none properly deal with tribal health issues. Increasing healthcare costs and the failures of Medicare and Medicaid, coupled with the push that Hillary Clinton and Dr. Philip Lee, Assistant Secretary for Health, have given, makes this a good time to strive for health cae reform.

5003. Croman, Kelly S. “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.” Washington Law Review 72 (January 1997): 129–51. Washington State’s drug and alcohol programs do not provide the services that help the state’s tribal population because licensing procedures do not take into account the tribal communities’ cultural needs. Croman provides examples of specific standards that might be included in state legislation to correct this oversight.

5000. Boyum, William. “Health Care: An Overview of the Indian Health Service.” American Indian Law Review 14, no. 2 (1986): 241–67. The IHS is a unique multi-million dollar organization that is run like the family grocery store. Tribal members need to prepare to relieve the burden on the agency by providing part of their own care.

5004. Davies, Wade. Healing Ways: Navajo Health Care in the Twentieth Century. Albuquerque: University of New Mexico Press, 2001. Historical account of the evolving conflict and cooperation between Navajo healing and western medicine that also stresses federal–state–tribal relations and the tribal government’s role as a health-care advocate and provider.

5001. Campbell, Gregory R. “Health Patterns and Economic Underdevelopment on the Northern Cheyenne Reservation, 1910–1920.” In The Political Economy of North American Indians, edited by John H. Moore, 60–86. Norman: University of Oklahoma Press, 1993. The tribe’s health deteriorated during this period because of economic underdevelopment, which resulted from U.S. assimilationist policy. Tribal indigenous health practices were suppressed, contributing to health problems.

5005. Dillingham, Brint. “Indian Women and IHS Sterilization Practice.” American Indian Journal 3 (January 1977): 27–28; cont. (July 1977): 16–19; cont. (September 1977): 25. Three-part overview of an emotional issue that violated tribal women’s civil rights. The last entry explains how IHS regulations were changed.

5002. Connot, Mark J. “Blue Legs v. United States Bureau of Indian Affairs: An Expansion of BIA Duties under the Snyder Act.” South Dakota Law Review 36, no. 2 (1991): 382–399.

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5006. Fairbanks, Robert A. “The Cheyenne–Arapaho and Alcoholism: Does the Tribe Have a Legal Right to a Medical Remedy?” American Indian Law Review 1 (Winter 1973): 55–77. Alcoholism affects over 75 percent of the members of these two tribes. This is a complex problem with extensive root factors. Since there is no clear boundary for care, alcoholism should be categorized as a disease and that would place care responsibility with the IHS. 5007. Fairbanks, Robert A. “Torts: Federal Medical Care Recovery Act: Effect of a Release on the United States’ Claim.” Oklahoma Law Review 26 (November 1973): 616–22. Tribal members are covered by this act, but the language makes it difficult to determine a final settlement. 5008. Gallerito, Cecilia. “Indian Health, Federally or Tribally Determined? Health Recommendations of the American Indian Policy Review Commission.” In New Directions in Federal Indian Policy: A Review of the American Indian Policy Review Commission, 29–43. American Indian Studies Center: University of California Press, 1979. The American Indian Policy Review Commission described the extent and scope of tribal health-care problems. The problem for the commission has been making the right decision in implementing a program to address tribal health care. 5009. Gonzalez, Mario and J. Youngblood Henderson. “Health Care for Tribal Citizens: A Criticism of White v. Califano,” American Indian Law Review 7 (1979): 245–89. The Oglala Sioux Tribal Court ruled that Florence Red Dog needed mental care but she was denied inpatient assistance at the South Dakota Human Services Center. The district court rejected the federal government’s argument that South Dakota violated her due process. The court sided with the state which argued that this was a federal responsibility even thought the IHS could not provide assistance. This action violated the patient’s civil rights, the 1976 Indian Health Care Improvement Act, and a tribal court’s extradition order. Both tribal and state interests would have been advanced if the court had ruled differently in White. 5010. Henderson, Eric. “Involuntary Civil Commitment of American Indians Residing in Indian Country.” Arizona Law Review 24, no. 3 (1982): 639–57. The main problem with civil commitment of tribal people is jurisdictional and making matters worse is the fact that many tribes have no procedures for civil commitment. The Gila River Indian Community,

IHS, and the Arizona State Hospital signed a “Memo of Understanding” saying that when the tribal court requests a state facility to do psychological evaluations on individuals deemed in danger, the state will comply. The Gila River case provides Congress a model for enacting legislation. 5011. Johansen, Bruce E. “Reprised/Forced Sterilizations: Native Americans and the ‘Last Gasp of Eugenics.’” Native Americas 15 (Winter 1998): 44–47. During the 1970s, the federal government permitted the use of federal funds for female sterilization or abortion. The numbers of women who were sterilized remains unknown, but the reason for these involuntary medical procedures is found in the social workers’ and medical office records. 5012. Kane, Robert and Rosalie Kane. Federal Health Care (With Reservations!). New York: Springer Publishing, 1972. Criticizes shortcomings in federal Indian healthcare policy and the IHS. 5013. Latus, Justin. The Ft. Mohave Indian Tribe: Options for Improved Health Care. Harvard Project on American Indian Economic Development, John F. Kennedy School of Government, Cambridge, MA: Harvard University, April 1993. The tribe is having a health-care crisis and it will only get worse as costs escalate. Because the tribe does not have control over the health-care system, there is a sense of frustration. The study recommends options for the tribe to pursue as it seeks ways to improve tribal health care. 5014. Lawrence, Jane. “The Indian Health Service and the Sterilization of Native American Women.” American Indian Quarterly 24 (Summer 2000): 400–419. During the 1960s and 1970s, a number of tribal women charged that the IHS gave them involuntary sterilization operations after IHS began family planning in 1965. Lawrence examines the history of IHS regulations and court decisions intended to protect against such abuse. 5015. Mackey, Mike. “Closing the Fort Washakie Hospital: A Case Study in Federal Termination Policy.” Annals of Wyoming 67 (Autumn 1995): 36–42. In 1953, in line with termination policy, the BIA planned to close the hospital and pass its duties to a reluctant county. The Shoshone and Arapahoe tribal councils petitioned to have the facility reopened. The Public Health Service later refused to reopen the facility. 5016. Patterson, Kelsey D. “Healing Health Care: Fixing a Broken System with Information Technology.”

Health Care: Twentieth-Century Policy and Patient Rights

Kansas Journal of Law & Public Policy 14 (Fall 2004): 193–220. Computerized physician order entry is an important component of contemporary medical care. The tangled web of rules governing American health care and rising costs have made services like CPOE hard to obtain. The Stark and Anti-Kickback laws must be amended and there must be legislative medical standards to improve health care. 5017. Payne, Diana. “Indian Health Legislation—To Amend a Century of Neglect.” American Indian Journal of the Institute for the Development of Indian Law 2 (August 1976): 23–24. The Army attempted to stop diseases among tribal communities in the early nineteenth century, and the 1832 Winnebago treaty provided the first health services. In 1911, Congress provided for a line-item health service, and the Snyder Act of 1921 provided health-care funds to assist tribal members. Congress is now considering a strong health bill. 5018. Pearson, Katherine C. “Departing From the Routine: Application of Indian Law under the Federal Tort Claims Act.” Arizona State Law Journal 32 (Summer 2000): 695–745. An enrolled member of Laguna Pueblo, Michael J. Cheromiah, Jr., died from a bacterial infection and his parents sued the IHS. The federal court ruled that Acoma law prevails because the hospital was located on that Pueblo. This provides an opportunity in the future for the Federal Tort Claims Act to uphold tribal sovereignty. 5019. Pfefferbaum, Betty, Rennard Strickland, Everett R. Rhoades, and Rose L. Pfefferbaum. “Learning How to Heal: An Analysis of the History, Policy, and Framework of Indian Health Care.” American Indian Law Review 20, no. 2 (1995–96): 365–97. Describes the history of tribal health care in the U.S. The federal government has a responsibility to support tribal health care—even as manpower issues emerge and health issues change. 5020. Pfefferbaum, Betty, Rennard Strickland, Everett R. Rhoades, and Rose L. Pfefferbaum. “Providing for the Health Care Needs of Native Americans: Policy, Programs, Procedures, and Practices.” American Indian Law Review 21, no. 2 (1997): 211–58.

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Over the decades, federal programs have removed tribal healing practices and replaced them with western practices. The system is under-funded and does not provide the level of care necessary for tribal health. 5021. Schultz, Stephanie. “Lincoln v. Vigil: An Exception to the Rule of Judicial Review.” Ohio Northern University Law Review 20, no. 2 (1993): 353–65. The IHS decided to end the Indian Children’s Program and the lawsuit that followed involved whether the closure was subject to judicial review. The court did not interfere with the agency’s decision. 5022. Smith, Andrea. “Malthusian Orthodoxy and the Myth of ZPG.” In Defending Mother Earth: Native American Perspectives on Environmental Justice, edited by Jace Weaver, 122–43. Maryknoll, NY: Orbis Books, 1996. Ties the 1970s involuntary sterilization of tribal women to the larger world context of involuntary sterilization. 5023. Sorkin, Alan L. “Health and Economic Development on American Indian Reservations.” In Public Policy Impacts on American Indian Economic Development, edited C. Matthew Snipp, 145–65. Albuquerque: Native American Studies Institute for Native American Development, University of New Mexico, 1988. Discusses positive health trends among American Indians since the Public Health Service took over Indian health-care responsibilities. 5024. Trennert, Robert. White Man’s Medicine: Government Doctors and the Navajo, 1863–1955. Albuquerque: University of New Mexico Press, 1998. Describes the development of Westernized medical services on the Navajo Nation. Early government health activities for the Navajos were “half-hearted at best, underfunded, unfocused, and largely ineffective.” 5025. White, Patricia. “Forced Sterilization amongst American Indian Women.” Journal of Indigenous Studies 1, no. 2 (1989): 91–96. Argues “one of the results of the large numbers of forced sterilizations performed on Indian women is that the fundamental link to their identity as life givers had been severely undermined.”

Chapter 50 Education: Twentieth-Century Policy and Lawsuits

5026. Anderson, James and Dwight Safar. “The Influence of Differential Community Perceptions on the Provision of Equal Educational Opportunities.” In Native Americans Today: Sociological Perspectives, edited by Howard M. Bahr, Bruce A. Chadwick, and Robert C. Day, 69–80. New York: Harper & Row, 1972. Spanish-American and Indian students are generally viewed as underachievers and Southwestern residents do not blame inadequate school programs for their failures. Minority children are told they are inferior and the children internalize these views.

5030. Bryan, David. “Cultural Relativism—Power In Service of Interests: The Particular Case of Native American Education.” Buffalo Law Review 32 (Fall 1983): 643–95. Relativism is political thought cloaked as an outside observer’s tolerance of another culture because we use our own cultural filters. A discussion of British and American attitudes toward tribal people and American Indian education policies provides the background context for this argument.

5027. Annis, Melissa. “Indian Education: Bilingual Education—A Legal Right for Native Americans.” American Indian Law Review 10, no. 2 (1982): 333–60. The Bilingual Education Act of 1968 was amended in 1978. Not only is bilingual education a legal right, it is part of the government’s trust responsibility. After Brown the right to an education cannot be denied, but that education must be equal on all levels.

5031. Carter, Nancy Carol. “Indian Education: JohnsonO’Malley Funds after Natonabah v. Board of Education.” American Indian Law Review 2 (Winter 1974): 89–97. The Natonabah case involved use of JOM funds in the Gallup-McKinley school system. The court ruled that the school discriminated against tribal students in resource allocation.

5028. Beatty, Willard W. “Twenty Years of Indian Education.” In The Indian in Modern America, edited by David A. Baerreis, 16–49. Madison: State Historical Society of Wisconsin, 1956. During Beatty’s tenure there was an effort to move away from inflexible rules and toward a focus on outcomes. Self-determination should be encouraged as it was under John Collier and the IRA, but Dillon Meyer brushed this policy aside.

5032. Chavers, Dean. “Indian Education: Failure for the Future?” American Indian Law Review 2 (Summer 1974): 61–84. Theories of tribal education run counter to the majority’s ideas of education. One area where this is true is local control where outsiders run Indian institutions. 5033. Cross, Raymond. “American Indian Education: The Terror of History and the Nation’s Debt to the Indian Peoples.” University of Arkansas at Little Rock Law Journal 21 (Summer 1999): 941–77. Criticizes past and present federal education decisions, and points to the present-day successes, especially in under-funded, but tribally run, reservation colleges.

5029. Begay, Harold G. “An Abridgement of Constitutional Rights.” Journal of American Indian Education 18 (May 1979): 1–4. It is unconstitutional for the BIA to permit Navajos to only act as advisors to the Bureau in the education of their children.

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5034. Cushman, Robert Fairchild. “Public Support of Religious Education in American Constitutional Law.” Illinois Law Review 45 (July–August 1950): 333–56. Overview of federal aid to religious schools. On reservations, many religious schools obtained either federal funds or individual tribal monies. One of the most important cases in this reservation phase of education was Quick Bear v. Leupp. 5035. Dussias, Allison M. “Let No Native American Child Be Left Behind: Re-Envisioning Native American Education for the Twenty-first Century.” Arizona Law Review 43, no. 4 (2001): 819–903. In 1998, President Clinton issued an Executive Order recognizing the nation’s responsibility for Indian education to create a better future. The Rosebud Sioux Tribe enacted a Tribal Education Code and organized a Tribal Education Department that has promise. 5036. Folsom, Roy D. “Equal Opportunity For Indian Children—The Legal Basis for Compelling Bilingual and Bicultural Education.” American Indian Law Review 3, no. 1 (1975): 51–82. The establishment of bilingual and cultural education programs is necessary to achieve equal educational opportunities for Indian children. When this does not occur, litigation becomes the means to achieve equality. 5037. Gaillard, Frye. “Desegregation Denies Justice to Lumbee Indians.” Indian Historian 4 (Fall 1971): 17–22. Discusses the negative effects that desegregation will have on Lumbee education. As the North Carolina communities, with the African-American population, move toward greater desegregation, the Lumbee stand to lose control of their schools and that begins the ball rolling toward loss of their culture and their own institutions. 5038. Gross, Michael Paul. “Indian Control for Quality Indian Education.” North Dakota Law Review 49 (Winter 1973): 237–65. Examines legal theories and explores the importance of Wyoming’s decision in 1973 to create a school district that encompasses the Wind River Reservation, the first in the nation that provides the parents with greater control over their children’s education. Developing a legal principle to support tribal–parental control and a method of responsive assistance to tribal communities are the two prerequisites for improving tribal education. 5039. Gross, Michael Paul. “Reckoning for Legal Services: A Case Study of Legal Assistance in Indian Educa-

tion.” Notre Dame Law Review 49 (1972–1973): 237–65. Unlike with other minority groups, tribal education victories have been diplomatic victories, not through lawsuits. These are grass roots victories resulting from the local tribal community negotiating with the local non-Indian groups and tribal groups over community education concerns. Despite the value of diplomacy over litigation, it appears that the Wind River Indian Education Association will be going to court over its efforts to create a separate tribal school system. In 1973, Wyoming created the first ever all Indian school district. 5040. Henderson, J. Youngblood. “The Question of Nonresident Tuition for Tribal Citizens.” American Indian Law Review 4, no. 1 (1976): 47–70. Since tribal affairs are a federal matter, there is no compelling defense for continuing to charge tribal students out-of-state tuition. 5041. Honahni, Dan. “Indian Community Control of Schools.” Indian Historian 3 (Spring 1970): 57–58, 66. Advocates the return of local tribal education to local communities. Adult education should be included in these local programs. 5042. “The Intermountian Student Suit.” Indian Historian 5 (Summer 1972): 38–40. A tribal student brought charges against the Intermountain School in Brigham City, Utah, claiming racial segregation and student rights violations. The federal judge dismissed the suit, claiming that the student had not exhausted remedies with the BIA. 5043. Laurence, Robert. “Indian Education: Federal Compulsory School Attendance Law Applicable to American Indians: The Treaty-Making Period: 1857– 1871.” American Indian Law Review 5, no. 2 (1977): 393–413. Colonial leaders initiated Indian education, but in 1858, the U.S. and the Pawnee signed a treaty requiring compulsory school attendance. There were school attendance provisions in treaties before and after the Civil War. In 1891, Congress passed a compulsory attendance law, and by 1929, the federal government had turned enforcement of Indian school attendance over to the states. 5044. Morris, C. Patrick. “Indian Self-Determination and the Tribal College Movement: A Good Idea that Not Even Government Can Kill.” In American Indian Policy: Self-Governance and Economic Development, edited by Lyman H. Legters and Fremont J. Lyden, 71–90. Westport, CT: Greenwood Press, 1994.

Education: Twentieth-Century Policy and Lawsuits

Overview of federal policies affecting the tribal college movement, which has been a great success, in contrast to other aspects of Indian education. Tribal colleges are a positive example of self-determination, but the most critical obstacle faced is the potential loss of federal funding. 5045. The NAACP Legal Defense and Educational Fund and The Center for Law and Education, Harvard University. “An Even Chance.” Law and the Social Order, Arizona State University Law Journal 1971, no. 2 (1971): 245–320. Abridged reprint chronicling the history of Indian education. Problems are discussed and potential solutions given, including many that have been implemented such as parental control of school boards. 5046. Nelson, Douglas and Jeremy Johnston. “Janine Pease Pretty-on-Top (Crow).” In The New Warriors: Native American Leaders since 1900, edited by R. David Edmunds, 281–97. Lincoln: University of Nebraska Press, 2001. As an educator and leader at Little Big Horn College, she has worked to help Crows retain their values while succeeding in the non-Indian world. The authors note the college’s achievements and continuing financial challenges. 5047. Noley, Grayson. “Summary and Critique of the Report on Indian Education of the American Policy Review Commission.” In New Directions in Federal Indian Policy: A Review of the American Indian Policy Review Commission, 57–73, Berkeley, CA: American Indian Studies Center: University of California Press, 1979. This task force on Indian education did not contribute any new literature to Indian education. Despite the potential for this opportunity, the commission failed to lead a new education discussion. 5048. Olivas, Michael A. “The Tribally Controlled Community College Assistance Act of 1978: The Failure of Federal Indian Higher Education Policy.” American Indian Law Review 9, no. 2 (1981): 219–51. A critical review of the BIA’s, Department of Education’s, and Office of Management and Budget’s roles in implementing the 1978 Tribally Controlled Community College Assistance Act. 5049. “Privatization of Federal Indian Schools: A Legal Uncertainty.” Harvard Law Review 116 (March 2003): 1455–76. President George W. Bush presented an idea of greater privatization of schools. Though popular in thought, this vague idea has legal difficulties to over come when applied to tribal schools. Privatization has potential if the federal government increases

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funding while giving more control to tribal school boards. 5050. Ramierz, Bruce and Barbara J. Smith. “Federal Mandates for the Handicapped: Implications for American Indian Children.” Exceptional Children 44 (April 1978): 521–28. Passage of the P.L. 94-142, Education for All Handicapped Children Act of 1975 was part of the civil rights movement. The act provides that tribal members will have access to educational resources for their exceptional children. 5051. Rosenfelt, Daniel M. “Indian Schools and Community Control.” Stanford Law Review 25 (April 1973): 489–550. Tribal leaders are demanding greater control over their children’s education. Legal and practical issues will make the task difficult, but there are several avenues available to tribal peoples. 5052. Rosenfelt, Daniel M. “Toward a More Coherent Policy for Funding Indian Education.” Law and Contemporary Problems 40 (Winter 1976): 190–223. The amended Johnson-O’Malley Act, the Indian Education Act, and the Indian Self-Determination and Educational Assistance Act provide the statutory authority for tribal communities to shape their own educational goals. Greater equity in the allocation of all educational dollars must be met. 5053. Ross, Richard M. “Cultural Integrity and American Indian Education.” Arizona Law Review 11 (Fall 1969): 641–75. Problems with Indian education and cultural preservation increase in the face of pressures to assimilate. Ross discusses legal issues pertaining to education, including court decisions against conformity, freedom of speech, freedom of religion, the Thirteenth Amendment, and federal responsibility to Indian education. 5054. Szasz, Margaret Connell. Education and the American Indian: The Road to Self-Determination since 1928. Albuquerque: University of New Mexico Press, 1999; first edition, 1974. A classic examining the crosscurrents of American Indian education from the Meriam Report to presentday tribally controlled schools. Chapters include examinations of the leading education leaders, the IRA, the Self-Determination and Education Assistance Act, and the growing number of tribally controlled schools. 5055. Szasz, Margaret Connell. “Listening to the Native Voice: American Indian Schooling in the Twentieth

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Century.” Montana: Magazine of Western History 39 (Summer 1989): 42–53. Most changes that are now in place are the result of the 1975 self-determination legislation, but the roots of that idea can be traced to discussions before 1930 and continuing until WWII. 5056. Timmermans, Isabella. “Native American Self-Determination as Affected by Educational Funding and Its Sources.” Idaho Law Review 29, no. 1 (1992–1993): 185–214. The current funding system needs to be reformed and greater cooperation must exist between various agencies and branches of the federal government to improve Indian education. Tribal leaders need to participate in developing approaches to education. 5057. Tippeconnic, John W. “Towards Educational SelfDetermination: The Challenge for Indian Control of Indian Schools.” Native Americas 17 (Winter 2000): 42–49. After the Rough Rock demonstration school opened, the movement for tribal control of Indian ed-

ucation grew quickly. The Indian Self-Determination and Education Assistance Act of 1975 opened the door wider for tribal control. Now 120 out of 187 BIA schools are tribally controlled. 5058. Tsosie, Rebecca. “The Challenge of ‘Differentiated Citizenship’: Can State Constitutions Protect Tribal Rights?” Montana Law Review 64 (Winter 2003): 199–244. Drafting a state constitution is the responsibility of both the state and tribal communities. The 1972 Montana Constitution Article X, Section 1(2) mandates statewide education about tribal peoples and their cultures. 5059. Zahniser, Timothy. “Alabama &. Coushatta Tribes v. Big Sandy School District: The Right of Native American Public School Students to Wear Long Hair.” American Indian Law Review 19, no. 1 (1994): 217–39. Wearing one’s hair long is a personal right, but for tribal Americans it is also a First Amendment right. The court reached the proper conclusion in this case.

Chapter 51 Alcohol, Drugs, and Tobacco Regulation

5060. Abbott, Kathyrn A. “Liquor Law in Minnesota Indian Country in the Early Twentieth Century.” Legal Studies Forum 25, nos. 2–3 (2001): 567–85. Historical account of Minnesota’s reservation liquor suppression. William Johnson was hired early in the twentieth century as Special Officer for the Suppression of Liquor Among the Indians and took his crusade to saloons. Allotment, land sales, and fee patented lands and non-Indian residents complicated the job.

tory Attempts to Erode Tribal Sovereignty.” Willamette Law Review 19 (Spring 1983): 291–301. The Ninth Circuit Court of Appeals decided that a licensed Indian trader did not need a state permit to sell liquor on the reservation even if the state was a P.L. 280 state. The court relied on federal preemption over state law and missed an opportunity to expand the ruling by including stronger language favoring tribal sovereignty. 5064. Cooper, Margaret Baba. “Task Force Eleven of the American Indian Policy Review Commission: A Developmental Overview.” In New Directions in Federal Indian Policy: A Review of the American Indian Policy Review Commission, 53–55. Berkeley, CA: American Indian Studies Center, University of California Press, 1979. The task force never made an effort to address the enormous problem that alcoholism has created on reservations.

5061. Back, William Douglas. “The Ineffectiveness of Alcohol Prohibition on the Navajo Indian Reservation.” Arizona State Law Journal, no. 4 (1981): 925–43. The Navajo Nation has not exercised local option for alcohol and prohibition has not worked on the reservation. The current prohibition is harming the people economically and in terms of their health. Criminal and civil solutions have not worked so Navajos should again consider approving the local option issue.

5065. Dyre, Jon T. “Indian Law–State Regulation of Liquor Transactions on Indian Reservations.” Land and Water Law Review 19, no. 2 (1984): 457–69. The Supreme Court in Rice v. Rehner ruled that Congress had removed tribal rights to regulate liquor in Indian Country, therefore Congress did not have to specifically express any statute for state regulation against Eva Rehner, a licensed Indian trader. This was a preemption ruling, but the court did not have a basis or foundation for this decision.

5062. Baker, Mark T. “The Hollow Promise of Tribal Power to Control the Flow of Alcohol into Indian Country.” Virginia Law Review 88 (May 2002): 685–737. In recent years, Congress has delegated former federal power to tribal governments attempting to localize authority under Section 1161 of the U.S. Code passed in 1953. Like the environmental regulations, Congress has delegated alcohol regulation in Indian Country to the tribes, but tribal governments must control all parties including non-Indian members. Non-Indians filed suit in Washington to stop this action, as did other non-Indians living on different reservations in other states.

5066. Finney, Frank F. “The Osage Indians and the Liquor Problem before Statehood.” Chronicles of Oklahoma 34 (Winter 1956–57): 456–64. Discusses the destructive history of liquor consumption and federal prohibition.

5063. Baxter, Melinda. “Rehner v. Rice: State Licensing and Taxation of Indian Liquor Transactions: Regula-

5067. Fletcher, Matthew L. M. “The Drug War on Tribal Government Employees: Adopting the Ways of the

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Conqueror.” Columbia Human Rights Law Review 35 (Fall 2003): 1–70. When it comes to creating an effective reservation war on drugs, tribes should not adopt western methods, such as random drug testing, but instead develop programs based on tribal values and mores. 5068. Foreman, Grant. “A Century of Prohibition.” Chronicles of Oklahoma 12 (June 1934): 133–41. Focuses on the Cherokee temperance movement in the 1830s and tribal prohibition of liquor in 1841. Foreman cautions about the possible loss of protections for Indians from the liquor traffic following the recent repeal of national prohibition. 5069. French, Laurence and Jim Hornbuckle. “Indian Alcoholism.” In Indians and Criminal Justice, edited by Laurence French, 165–77. Totowa, NJ: Allanheld, Osmun & Co., 1982. Personal, social, and cultural conflicts create alcoholism and it is a serious health problem. Federal policies have disrupted tribal societies and cultural circumstances, creating a marginal individual outside of any culture. 5070. Fuller, Lauren L. “Alcoholic Beverage Control: Should the Remaining Reservations Repeal Prohibition Under 18 U.S. 1161?” American Indian Law Review 3, no. 2 (1975): 429–44. Tribal alcoholism is a cultural–sociological problem and that requires returning dignity to the tribal people by repealing prohibition. 5071. Grunsted, Shelly. “An Effective Smoke Screen: The Muscogee (Creek) Nation’s Civil Complaint against Big Time Tobacco and the Battle of Subject Matter Jurisdiction.” American Indian Law Review 22, no. 2 (1997–98): 567–80. The tobacco companies want a case suing them for harming the Creek people removed from tribal court. Since Oklahoma is not a P.L. 280 state, Oklahoma would have no authority to hear the case, thus creating an interesting legal puzzle that can only be solved by keeping the case in tribal court. 5072. Guyette, Susan. “Suggestions for Priority Alcohol and Drug Abuse Research: A Comment on the Recommendations of Task Force Eleven of the American Indian Policy Review Commission.” In New Directions in Federal Indian Policy: A Review of the American Indian Policy Review Commission, 45–52. Berkeley, CA: American Indian Studies Center, University of California Press, 1979. Alcoholism is a pressing problem and drug abuse is growing, but the task force devoted one page to these issues. The commission’s recommendations

were narrow and criminal-oriented, such as decriminalizing alcohol related offenses. 5073. Hassrick, Royal. “Alcohol and Indians.” American Indian 4, no. 2 (1947): 19–26. Prohibition of Indian drinking is contrary to their status as citizens with equal rights. It should be lifted except in cases where tribes decide to retain it onreservation. 5074. Haupt, Robert J. “‘Never Lay a Salmon on the Ground with his Head toward the River’: State of Washington Sues Yakamas over Alcohol Ban.” American Indian Law Review 26, no. 1 (2001–2002): 67–87. In 2000, Washington disputed an on-reservation ban, which the State Attorney General said would affect 20,000 nontribal members. The tribe instituted it after the State promised to challenge a tribal alcohol tax designed to fund antialcohol abuse programs. The tribe acted reasonably out of concern for the well-being of its members. Haupt predicts they will lose the suit but should subsequently file a claim against the federal government based on the 1855 treaty and 18 U.S.C. §1154. 5075. Hayes, Jerry G. “Ardent Spirits among the Chickasaws and Choctaws, 1816–1856.” Chronicles of Oklahoma 69 (Fall 1991): 294–309. Surveys the history of federal and tribal efforts, beginning in the mid-eighteenth century, to prohibit alcohol on tribal lands. Hayes also considers the past social effects of alcohol consumption in these communities. The tribes found it difficult in the midnineteenth century to convince neighboring states to cooperate with efforts to restrict the liquor trade. Their internal methods were also ineffective. 5076. Heaston, Michael D. “Whiskey Regulation and Indian Land Titles in New Mexico Territory, 1851–1869.” Journal of the West (July 1971): 474–83. The 1834 Intercourse Act, applied to New Mexico by Congress in 1851, allowed federal officials to prevent the trading of liquor to Natives in the territory, but confusion over the territorial boundaries hampered the enforcement of the act. 5077. Heimann, Robert K. “The Cherokee Tobacco Case.” Chronicles of Oklahoma 41 (Autumn 1963): 299– 322. After the Civil War, some Cherokees and Choctaws set up tobacco factories near the Arkansas line believing that the Treaties of 1866 exempted them from the federal excise tax on sales across Indian Territory’s borders. In the 1871 Cherokee Tobacco Case, the Supreme Court denied them this right. The case was important because it put an end to

Alcohol, Drugs, and Tobacco Regulation

the notion that a sovereign state could remain within the U.S., isolated legally but free to integrate itself commercially. 5078. Hudson, Peter J. “Temperance Meetings among the Choctaws.” Chronicles of Oklahoma 12 (June 1934): 130–32. First-hand account of the Choctaw temperance movement. 5079. Ishii, Izumi. “Alcohol and Politics in the Cherokee Nation before Removal.” Ethnohistory 50 (Fall 2003): 671–95. Cherokee tribal government efforts to allow and then regulate the alcohol trade in the 1820s challenged federal regulations. These actions led to political conflict with the U.S. government that reflected larger sovereign battles. 5080. Lilley, Thomas E. “Regulatory Jurisdiction over Indian Country Retail Liquor Sales.” Natural Resources Journal 23 (January 1983): 239–45. The Ninth Circuit Court of Appeals held in Rehner v. Rice in 1982 that tribal communities can govern their own use of liquor. 5081. Martin, Jill E. “‘The Greatest Evil’: Interpretations of Indian Prohibition Laws, 1832–1953.” Great Plains Quarterly 23 (Winter 2003): 35–53. Federal prohibition laws affecting Native Americans changed as the overall Indian policies changed. These ineffective laws were made without considering tribal views and values. Tribes should determine the best course for dealing with alcohol abuse in their own communities, and their actions must be culturally appropriate. 5082. May, Phillip. “Alcohol Beverage Control: A Survey of Tribal Alcohol Statutes.” American Indian Law Review 5, no. 1 (1977): 217–28. Congress repealed its prohibition on reservation alcohol sales and implemented home rule. As a result, tribes have established their own liquor laws.

541

Federal Indian policy created the myth of the “drunken” Indian. The myth now drives federal policy preventing the government from assuming a role in finding a solution to reservation alcoholism. The extent of the federal failure has reached the point of codifying the “drunken” Indian into laws designed to be solutions. One change would be to place tribes in charge of rehabilitation programs. 5085. Powell, Thomas Reed. “Supreme Court Decisions on Federal Power over Commerce.” Minnesota Law Review 6 (December 1921): 1–218. Includes a section on commerce with Indian tribes, including recent liquor cases. 5086. Ryan, Anne M. “Confusion in the Land of Indian Sovereignty: The Supreme Court Takes a Detour.” Arizona Law Review 25, no. 4 (1983): 1059–68. The Supreme Court ruled in Rice v. Rehner that States may force Indian reservation venders to obtain a state license if the liquor sold is to be consumed off the reservation. Tribal interests were not considered to the same degree as the state’s interests in this case that originated on the Pala Reservation near San Diego. 5087. Tong, Benson. “Allotment, Alcohol, and the Omahas.” Great Plains Quarterly 17 (Winter 1997): 19–34. Allotment led to social miseries conducive to alcoholism. Omaha’s supported legal prohibitions of alcohol but also traditional approaches to the problem. 5088. Tong, Mary Lee. “Rehner v. Rice: State Jurisdiction over Liquor Transactions in Indian Country.” Golden Gate University Law Review 16 (Spring 1986): 343–61. The Ninth Circuit Court of Appeals issued an opinion that held for the tribes their “exclusive licensing and distribution jurisdiction over liquor transactions on Indian Lands.”

5083. Mikkanen, Arvo Q. “Rice v. Rehner: A Limitation on the Exercise of Tribal Governmental Powers Based on Historical Factors.” American Indian Journal of the Institute for the Development of Indian Law 9 (Summer 1986): 2–15. The Supreme Court decided this case in 1983, and used the phrase “historical sovereignty.” This is another way to diminish tribal sovereignty by undercutting the federal pre-emption test.

5089. Unrau, William E. “Indian Prohibition and Tribal Disorganization in the Trans-Missouri West.” Contemporary Drug Problems 21 (Winter 1994): 519–33. Attempts to suppress alcohol among the tribes in the Louisiana Purchase area failed. Despite laws, illegal trade did not decline until United States v. Downing, in 1876, when a federal court in Kansas declared where the trade occurred was not as important as the federal government’s wardship duties.

5084. Miller, Robert J. and Maril Hazlett. “The ‘Drunken Indian’: Myth Distilled Into Reality through Federal Indian Alcohol Policy.” Arizona State Law Journal 28 (Spring 1996): 223–98.

5090. Unrau, William E. White Man’s Wicked Water: The Alcohol Trade and Prohibition in Indian Country, 1802–1892. Lawrence: University of Kansas Press, 1996.

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Emphasizes “the relationship between Indian country as an evolving legal fiction and Indian drinking there, within the framework of a cumbersome prohibition code made all the more innocu-

ous by the breakdown of the frontier judicial process and the lawless opportunism of liquor vendors who invaded Indian country with impunity.”

Chapter 52 Urban and Off-Reservation Populations

5091. Bailin, Roxanne. “Ruiz v. Morton: BIA Welfare Extended to All American Indians.” New York University Review of Law and Social Change 3 (Spring 1973): 201–12. After being laid off due to a strike, and living offreservation, Ruiz sued the BIA for assistance. The Ninth Circuit Court of Appeals reversed the lower court decision and award the Ruiz family assistance based on the 1921 Snyder Act, where Congress directed care of Indians throughout the U.S. to apply both on- and off-reservation.

munity.” Wicazo Sa Review 17 (Spring 2002): 117–41. Chicago provides a case study of Native Americans seeking self-determination in urban environments. Organizations have capitalized on intertribal unity and focused on social welfare advocacy for the community and individual community members. Beck considers four milestones in particular—Dr. Carlos Montezuma’s advocacy; the development of organizational leadership in the 1920s and 1930s with Scott Henry Peters’s work and creation of the Grand Council Fire of American Indians; the All Tribes American Indian Center’s role in the 1950s; and inter-organizational cooperation after the Chicago American Indian Community Organizations Conference in 1981.

5092. Beaulieu, David L. “A Critical Review of the Urban Indian Task Force of the American Indian Policy Review Commission.” In New Directions in Federal Indian Policy: A Review of the American Indian Policy Review Commission 75–85. Berkeley, CA: American Indian Studies Center, University of California Press, 1979. Over the last decades, the federal government has been the major employer of tribal people. This has made tribal people part of the barrier to tribes’ ability to exercise self-rule. As bureaucrats emerge from tribal communities, there will be conflicts as reservations become more federalized.

5095. Bishop, Joan. “From Hill 57 to Capitol Hill: ‘Making the Sparks Fly’: Sister Providencia Tolan’s Drive on Behalf of Montana’s Off-Reservation Indians.” Montana: Magazine of Western History 43 (Summer 1993): 16–29. Tolan, a sociology professor from the College of Great Falls, spent two decades lobbying for American Indian welfare. She personally took up the plight of Great Falls urban population and considered the 1961 congressional visit a focal point because this investigation was the starting point for urban Indian aid.

5093. Beck, David R. M. “The Chicago American Indian Community: An ‘Invisible’ Minority.” In Beyond Black and White: New Faces and Voices in U.S. Schools, edited by Maxine Seller and Lois Weis, 45–60. Albany: State University of New York Press, 1997. This community has been diverse, marginalized, and maintained “a separate cultural identity.” This marginality “has been imposed from the outside and in some ways supported from within the community.” The discussion includes relocation policy and education.

5096. Danziger, Edmund Jefferson, Jr. Survival and Regeneration: Detroit’s American Indian Community. Detroit, MI: Wayne State University Press, 1991. This population grew after World War II, was cut off from federal services, and became an “invisible” minority group in the city. Natives in Detroit faced significant social and economic difficulties by the 1970s, but strong leaders emerged, personal networks developed, and community centers arose

5094. Beck, David R. M. “Developing a Voice: The Evolution of Self-Determination in an Urban Indian Com543

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revitalizing the urban Indian community. Employment, health, welfare, and education issues are considered. 5097. DeRosier, Arthur H., Jr. “The Past Continues: Indian Relocation in the 1950s.” In Forked Tongues and Broken Treaties, edited by Donald E. Worcester, 451–64. Caldwell, ID: Caxton Printers, 1975. The drive to integrate Indians against their will, coupled with public guilt, drove the termination and relocation policies. Historians have overemphasized termination and underemphasized the significance of relocation. The latter seemed less cruel to Americans, but was part of the termination effort. It was a flawed effort despite later improvements. 5098. Fixico, Donald L. The Urban Indian Experience in America. Albuquerque: University of New Mexico Press, 2000. Studies the effects of urbanization on Indian lives and the emergence of an urban Indian identity. Fixico begins with a discussion of the relocation program, which was intended to foster assimilation but instead led to the formation of Indian ghettoes. 5099. Harmon, Alexandra. Indians in the Making: Ethnic Relations and Indian Identities around Puget Sound. Berkeley: University of California Press, 1998. Many Puget Sound Native Americans have moved into non-Indian communities, but that relocation has not ended their identities as tribal members. Treaty fishing rights, the IRA, and the Indian Self-Determination and Education Assistance Act have assisted in this endeavor of identity building. 5100. Hurt, Wesley R. “The Urbanization of the Yankton Indians.” Human Organization 20 (Winter 1961– 1962): 226–31. Discusses the role of the Yankton Sioux who live in Yankton, South Dakota. They return to Greenwood for peyote meetings and visit friends and relatives. At the same time, they have a dislike for the reservation and this takes the children away from the elderly who greatly regret that the children are not learning Nakota. 5101. Jackson, Deborah Davis. Our Elders Lived It: American Identity in the City. DeKalb: Northern Illinois University, 2002. Studies perceptions of “Indianness” in the urban Midwest and notes that the older generation felt unsafe openly identifying themselves as Indian. 5102. Melendy, Patrick. “Tax Exemption: The Right of Urban Indians.” Indian Historian 11 (Summer 1978): 29–31, 59. The federal government should provide the same tax immunity for Natives living off-reservation as it must for those on-reservation.

5103. Myhre, Russell J. “Indians—Protection of Personal Rights in General: The Right of Off-Reservation Indians To Receive General Welfare Assistance.” North Dakota Law Review 49 (Winter 1973): 405–10. Conflicts occur because off-reservation families are often denied tribal assistance. The Ninth Circuit Court of Appeals ruled in Ruiz v. Morton that the 1921 Snyder Act included language that entitled Indians throughout the country to assistance. 5104. Officer, James E. “The American Indian and Federal Policy.” In The American Indian in Urban Society, edited by Jack O. Waddell and O. Michael Watson, 9–65. Boston, MA: Little, Brown, and Company, 1971. Surveys federal Indian policy and its role in prompting Indian migration to urban areas. Officer considers the effects urbanization will have on reservation communities and the federal–Indian relationship, and draws attention to the services provided for reservation Indians that are not available to urban Indians. 5105. Philp, Kenneth R. “Stride toward Freedom: The Relocation of Indians to Cities, 1952–1960.” Western Historical Quarterly 16 (April 1985): 175–90. Other authors, in stressing the negative aspects of relocation policy and its connection to termination, overlook “individuals who tried to deal with complex social and political realities.” Indian people who accepted the program were not simply acquiescing to termination policy and assimilationist goals. Some Native people who accepted the program were disillusioned with the New Deal reforms, which they viewed as segregationist, while others were fleeing poverty on reservations. 5106. Sclar, Lee J. “Participation by Off-Reservation Indians in Programs of the Bureau of Indian Affairs and the Indian Health Service.” Montana Law Review 33 (Summer 1972): 191–232. Outsiders often mistakenly assume that tribal members living off-reservation are not entitled to assistance. The BIA and IHS provide services to offreservation tribal populations. Too much attention has been paid to geography and not enough attention to the needs of off-reservation and urban tribal populations. 5107. Sorensen, Stephen. “Ruiz v. Morton: Federal Welfare for Non-Reservation Indians.” Utah Law Review, no. 2 (Summer 1973): 328–34. The court in Ruiz stopped the BIA from interpreting rules and regulations pertaining to who is and who is not entitled to welfare assistance. The court declared that off-reservation tribal members were entitled to assistance.

Urban and Off-Reservation Populations

5108. Sorkin, Alan L. The Urban American Indian. Lexington, MA: D. C. Heath and Company, 1978. Offers historical background and discussion of federal relocation policy. Urban Indians compare favorably to reservation residents in terms of economic and social indicators but are disadvantaged compared to most Americans. Health conditions, on the other hand, are worse for urban dwellers. There are severe problems in terms of the availability of social services and housing for urban Indians. Discussion includes the development of urban Indian centers. 5109. Sparks, Joe P. “The Indian Stronghold and the Spread of Urban America.” Arizona Law Review 10 (Winter 1968): 706–24. Urban sprawl creates new problems for tribal America. This is true in the resort areas of Arizona and California, which reveal adjustment problems. Urban sprawl, traffic problems, zoning laws, rights of way and eminent domain are all potential problems. ICRA should be employed as a framework for solving these new problems. 5110. Stauss, Joseph H. “A Critique of the Task Report Eight Final Report to the American Indian Policy Review Commission: Urban and Rural Non-Reservation Indians.” In New Directions in Federal Indian Policy: A Review of the American Indian Policy Review Commission, 87–98. Berkeley, CA: American Indian Studies Center, University of California Press, 1979. It appeared that this report was written before the task force did any review. The task force should have started with the recommendation that there is an assumption of recognitions, but the report did not even

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address delivery of services. It is imperative that a property survey be made, but none was attempted. 5111. Usner, Daniel H., Jr. “An American Indian Gateway: Some Thoughts on the Migration and Settlement of Eastern Indians around Early St. Louis.” Gateway Heritage 11 (Winter 1990/91): 42–51. Tries to illuminate the forgotten history of “Indians living informally within the local Western society and economy.” He considers their reasons for settling the area, including their forced removal from their lands, and the political and economic challenges they faced in their new settlements. 5112. Waddell, Jack O. and O. Michael Watson, eds. The American Indian in Urban Society. Boston, MA: Little, Brown, and Company, 1971. Collection of ethnographic and case study articles by various authors dealing with urban Indian conditions and their participation in social institutions. 5113. Weibel-Orlando, Joan. Indian Country, L.A.: Maintaining Ethnic Community in Complex Society. Urbana: University of Illinois Press, 1991. Studies the history, culture, and demography of this community that has demonstrated “a viability, tenacity, and political power far beyond that suggested by this loosely organized social group’s small numbers, lack of geographic concentration, and cultural heterogeneity.” Its members “are artists at life— individuals who have created and who continue to recreate themselves and their community within the parameters of cherished cultural templates.” Related institutions are studied, including social service programs and political institutions.

Chapter 53 Women’s Rights and Issues

significant new opportunities for Indian women in terms of employment and education.

5114. Anderson, Karen. Changing Woman: A History of Racial Ethnic Women in Modern America. New York: Oxford University Press, 1996. Examines the experiences of Native American, Mexican American, and African American women, and ways federal Indian policies affected their values and roles. Also stresses women’s abilities to resist subordination and adapt. Topics discussed include involuntary sterilization and child adoption.

5118. Bysiewicz, Shirley R. and Ruth Van de Mark. “The Legal Status of the Dakota Indian Woman.” American Indian Law Review 3, no. 2 (1975): 255–312. Lakota women have higher employment rates, more education, and make less money than Lakota males. To contrast the different conditions, a historical description is compared with a contemporary view of Lakota women.

5115. Berger, Bethany Ruth. “After Pocahontas: Indian Women and the Law, 1830 to 1934.” American Indian Law Review 21, no. 1 (1997): 1–62. Describes federal and state Indian case law affecting tribal women. As purveyors of culture, tribal women were victimized in outside courts. Whereas women were the heads of houses in their world, they were not considered so in western courts.

5119. Chato, Genevieve and Christine Conte. “The Legal Rights of American Indian Women.” In Western Women: Their Land, Their Lives, edited by Lilliam Schlissel, Vicki L. Ruiz, and Janice Monk, 229–46. Albuquerque: University of New Mexico Press, 1988. Their legal status is even more complicated than is that of Indian men, as is exemplified by the tribes’ right to discriminate sexually and by Martinez. Issues of jurisdiction, economic development, and outside cultural influences also affect Indian women’s status. The authors focus specifically on Navajo women.

5116. Berger, Bethany Ruth. “Indian Policy and the Imagined Indian Woman.” Kansas Journal of Law & Public Policy 14 (Fall 2004): 103–20. The Martinez decision provided an opportunity for scholars to imagine tribal women instead of seeing real tribal women. Berger provides a historical overview of imagined tribal women beginning in 1580. Whites want to save them from oppression, but do not understand the real oppression.

5120. Christofferson, Carla. “Tribal Court’s Failure to Protect Native American Women: A Reevaluation of the Indian Civil Rights Act.” Yale Law Journal 101 (October 1991): 169–85. Congress attempted to protect individual tribal members from tribal government abuses in ICRA because the Bill of Rights did not apply to tribal nations. Despite Congress’s intent, the Supreme Court, in Martinez, limited this protection. Congress should expand ICRA to better protect tribal women.

5117. Bernstein, Alison. “A Mixed Record: The Political Enfranchisement of American Indian Women during the Indian New Deal.” Journal of the West 23 (July 1984): 13–20. Criticizes John Collier for failing to incorporate Indian women into the policy-making process. But she credits his IRA with opening avenues for women’s involvement in tribal politics, because tribes were compelled to mandate women’s suffrage in their constitutions. The New Deal also provided

5121. Deer, Sarah. “Expanding the Network of Safety: Tribal Protection Orders for Survivors of Sexual Assault.” Tribal Law Journal 4 (2003–2004): online. http://tlj.unm.edu/articles/

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There is a high rate of sexual assault against Native women. Cultural issues often prevent prosecution, including concerns about honor, fear of judicial racism, and reluctance to turn another member over to the police. Historically, tribal law punished offenders, but Congress and courts stripped tribal governments of those powers and tribal governments often lack language in their codes to issue protection orders for these women. Tribal councils should reform their protection orders and change their positions on rape by modifying sexual violence laws. 5122. Deer, Sarah. “Toward an Indigenous Jurisprudence of Rape.” Kansas Journal of Law & Public Policy 14 (Fall 2004): 121–54. Whether feminist or indigenous theory of violence against women is pursued, greater insight is needed. Native women cannot depend on the outside sovereigns to protect them, so the tribe must do so internally. 5123. Feinman, Clarice. “Women Battering on the Navajo Reservation.” International Review of Victimology 2 (1992): 137–46. Navajo culture and people must be involved in solutions to this violence. 5124. Guerrero, Marie Anna Jaimes. “Civil Rights versus Sovereignty: Native American Women in Life and Land Struggles.” In Feminist Genealogies, Colonial Legacies, Democratic Futures, edited by M. Jacqui Alexander and Chandra Talpade Mohanty, 101–21. New York: Routledge, 1997. Studies conflicts between indigenous civil rights and sovereignty and argues that to understand Native women’s struggles the U.S. must be understood as “an advanced colonial state.” The mainstream feminist movement has been reluctant to deal with issues of great importance to indigenous women. In particular, these issues deal with land rights and sovereignty. ICRA and the Martinez cases are discussed, as are issues including health, foster care, suicide, and involuntary sterilization. 5125. Harris, Angela P. “Race and Essentialism in Feminist Legal Theory.” Stanford Law Review 42 (February 1990): 581–616. Critical of author Catherine A. MacKinnon’s position in a previous essay on Martinez because Julia Martinez was forced to choose between her gender and her tribe. 5126. Hoikkala, Päivi H. “Mothers and Community Builders: Salt River Pima and Maricopa Women in Community Action.” In Negotiators of Change: Historical Perspectives on Native American Women, ed-

ited by Nancy Shoemaker, 213–34. New York: Routledge, 1995. President Johnson’s Great Society stimulated new tribal leadership and aided self-determination by allowing tribal members to directly apply federal funds rather than relying on the BIA to do so. Native women were able to take on increasingly important roles in tribal governance. 5127. Kersey, Harry A., Jr. and Helen M. Bannan. “Patchwork and Politics: The Evolving Roles of Florida Seminole Women in the 20th Century.” In Negotiators of Change: Historical Perspectives on Native American Women, edited by Nancy Shoemaker, 193–212. New York: Routledge, 1995. Includes a discussion of the strong role Seminole women, who were educated Christians, were able to play after the tribe incorporated under the IRA in 1957. Fewer women were elected to tribal government after the 1960s. 5128. Kidwell, Clara Sue. “The Power of Women in Three American Indian Societies.” Journal of Ethnic Studies 6 (Fall 1978): 113–21. The women’s movement has created concern for minority women, yet tribal cultures had created different mechanisms for tribal women to gain status. Among the Canadian Ojibwe and the Wisconsin Menominee and Winnebago, women maintain strong roles as cultural bearers and thereby maintain their power. 5129. Knack, Martha C. “Contemporary Southern Paiute Women and the Measure of Women’s Economic and Political Status.” Ethnology 28 (July 1989): 233–48. The Southern Paiutes gained federal recognition in 1980, and a new political structure was created. In one complete political cycle of elected band officials, ten were women. Tribal restoration has opened more doors for these women in the political process with women serving as vice-chairs of the tribe. 5130. McEachern, Diane, Marlene Van Winkle, and Sue Steiner. “Domestic Violence among the Navajo: A Legacy of Colonization.” In Pressing Issues of Inequality and American Indian Communities, edited by Elizabeth A. Segal and Keith M. Kilty, 31–46. New York: Haworth Press, 1998. The breaking down of traditional values, together with poverty and the lack of social services, has contributed to high levels of family violence. Law enforcement has been unable to protect battered women. In response to the problem, the Navajo Nation enacted the Domestic Abuse Prevention Act in 1993.

Women’s Rights and Issues

5131. Milczarek-Desai, Shefali. “(Re)Locating Other/Third World Women: An Alternative Approach to Santa Clara Pueblo v. Martinez’s Construction of Gender, Culture and Identity.” UCLA Women’s Law Journal 13 (Spring 2005): 235–91. One way to discuss Martinez is to examine the case’s flaws. Another way is to present alternative roads that the Supreme Court could have taken. Doing so requires an interdisciplinary discussion, employing anthropological and historical evidence to determine gender roles and answer why the pueblo council enacted the 1939 tribal ordinance that barred Julia Martinez from enrolling her child. 5132. Osburn, Katherine M. B. “‘Dear Friend and ExHusband:’ Marriage, Divorce, and Women’s Property Rights on the Southern Ute Reservation, 1887–1930.” In Negotiators of Change: Historical Perspectives on Native American Women, edited by Nancy Shoemaker, 157–75. New York: Routledge, 1995. Prior to the reservation period, Ute men could not restrict women’s rights to divorce and property. Land allotment reversed this situation, with women having rights to their husbands’ property after a divorce contingent upon the legality of their marriage. Federal policies granting land allotments to males, and the application of non-Indian legal standards, thus placed Ute women in a subservient economic role relative to the men. 5133. Prindelville, Diane-Michele. “Feminist Nations? A Study of Native American Women in Southwestern Tribal Politics.” Political Research Quarterly 57 (March 2004): 101–12. Interviewed twenty-one informants and concludes that great diversity exists between the tribal nations of the Southwest regarding women’s participation in tribal politics. The Pueblos exclude women from decision making while women participate in other forms of tribal operations. Despite long-term involvement in tribal governance, the number of women doing so remains low. Women from pueblos face theocratic constraints. Opening the political process will require a separation of religion from politics. 5134. Skenandore, Francine R. “Revisiting Santa Clara Pueblo v. Martinez: Feminist Traditions on Tribal Sovereignty.” Wisconsin Women’s Law Journal 17 (Fall 2002): 347–70. Examines the tension between western feminist scholars who view Martinez as a failure to examine equal protection, and tribal feminists who support

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tribal sovereignty as crucial to the preservation of tribal culture. 5135. Smith, Robyn Cerny. “Female Circumcision: Bringing Women’s Perspective into the International Debate.” Southern California Law Review 65 (July 1992): 2449–2504. A post-modern approach tying domestic–international conflicts together, such as Martinez in which it was decided that a tribe’s rights supercede a woman’s right. Where is the legal theory that supports this practice? 5136. Tatum, Melissa L. “Establishing Penalties for Violations of Protection Orders: What Tribal Governments Need to Know.” Kansas Journal of Law & Public Policy 13 (Fall 2003): 125–38. In the 1994 Violence Against Women Act, Congress “required all states and all tribes to recognize and enforce protection orders issued by any other state or any other tribe.” This demonstrates that tribes have bona fide governments, but that still leaves the status of non-members in limbo and makes the tribal court duties more difficult. 5137. Tatum, Melissa L. “A Jurisdictional Quandary: Challenges Facing Tribal Governments in Implementing the Full Faith and Credit Provisions of the Violence Against Women Act.” Kentucky Law Journal 90, no. 1 (2001–2002): 123–227. The Violence Against Women Acts of 1994 and 2000 have differing jurisdictional rules for states and tribes despite full faith and credit provisions. As the Supreme Court has eroded tribal sovereignty, the courts’ decisions have created different rules for the states and tribes. 5138. Trafzer, Clifford E. “Horses and Cattle, Buggies and Hacks: Purchases by Yakima Indian Women, 1909–1912.” In Negotiators of Change: Historical Perspectives on Native American Women, edited by Nancy Shoemaker, 176–92. New York: Routledge, 1995. Bills of sale provide evidence that Yakima women maintained their important economic roles after creation of the reservation. 5139. Valencia-Weber, Gloria and Christine P. Zuni. “Domestic Violence and Tribal Protection of Indigenous Women in the United States.” St. John’s Law Review 69 (Winter–Spring 1995): 69–170. Examines fourteen tribes’ domestic violence ordinances. Tribal sovereignty remains key because tribal government must enact codes that will deal with both the perpetrator and victim.

Chapter 54 Alaska Natives

5140. “Aboriginal Exemption to the International Whaling Convention.” American Indian Law Review 6, no. 1 (1978): 249–54. The International Whaling Commission ceased all bowhead hunting. The Inuit of Alaska sued the U.S. to overturn the ban, since they depend on the whale for subsistence, and were successful in their efforts.

ment.” Journal of Ethnic Studies 13 (Spring 1985): 1–12. Examines the premises upon which ANCSA is based and argues that the corporations are not likely to benefit the majority of Alaska Natives. Land claims and state actions have reinforced Alaska Native dependency.

5141. “Alaska Native Claims Settlement Act: Long-Term Prospects.” American Indian Journal of the Institute for the Development of Indian Law 3 (May 1977): 10–17. This legislation was controversial because of a provision allowing outsiders to gain control of Native property. Other threats to tribal interests include the law’s ambiguous language.

5145. Anders, Gary C. “Social and Economic Consequences of Federal Indian Policy: A Case Study of the Alaska Natives.” Economic Development and Cultural Change 37 (January 1989): 285–303. Despite the wide range of federal policies in Alaska, none have brought the Alaska Natives into any meaningful participation in the state’s economy. These individuals want to increase village authority and that challenges the corporations created under ANCSA.

5142. “Alaska Native Villages.” American Indian Journal of the Institute for the Development of Indian Law 3 (May 1977): 7–9. In 1963, Congress pushed for an Alaska village policy to encourage incorporation of Native villages. Now there are three types of village governments, ranging from traditional village councils, to IRA councils, to state incorporated municipalities, all creating the potential for Native loss of control.

5146. Andrews, Mark. “‘Active Versus Reasonable’ Efforts: The Duties to Reunify the Family under the Indian Child Welfare Act and the Alaska Child in Need of Aid Statutes.” Alaska Law Review 19 (June 2002): 85–117. The state has an obligation to make “active efforts” to reunify a Native family under ICWA and “reasonable efforts” for non-Indian families, as stated in Alaska Child in Need of Aid legislation. The Alaska Supreme Court has assumed a position that attempts to navigate between these two positions. Without stating a test, the Alaska Supreme Court has moved the latter “reasonable” standard closer to the “active” standard.

5143. Anders, Gary C. “The Alaska Native Experience with the Alaska Native Claims Settlement Act.” In The Struggle for the Land: Indigenous Insight and Industrial Empire in the Semiarid World, edited by Paul A. Olson, 127–45. Lincoln: University of Nebraska Press, 1990. Compares ANCSA with the Dawes Act, both of which attempted to impose private property on collective societies.

5147. Angell, John. Public Safety and the Justice System in Alaskan Native Villages. Cincinnati, OH: Pilgrimage, 1981. These communities have suffered because nonIndian sovereigns have deprived them of their

5144. Anders, Gary C. “A Critical Analysis of the Alaska Native Land Claims and Native Corporate Develop-

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traditional means of social control. The state’s system of providing public safety and justice fails to meet the needs of rural Native communities. Local alternatives are more attractive but lack adequate funding. The state system should be reformed. 5148. Arnold, David. “Work and Culture in Southeastern Alaska: Tlingits and the Salmon Fisheries.” In Native Pathways: American Indian Culture and Economic Development in the Twentieth Century, edited by Brian Hosmer and Colleen O’Neill, 156–83. Boulder: University Press of Colorado, 2004. Early twentieth-century Tlingit cannery workers and fishermen struggled for their rights and economic survival in a changing market, and did so while retaining their cultural identity. Salmon canneries allowed them to continue a traditional fishing way of life in a new form. The Alaska Native Brotherhood served as their advocate. Tlingits unionized in the 1930s. 5149. Arnold, Robert D. ed. Alaska Native Land Claims. Anchorage: Alaska Native Foundation, 1978. Historical survey leading up to passage of ANCSA. Native and non-Native authors from Alaska provide descriptions of various regional corporations. Numerous statistical tables, figures, colored maps, and photographs are included. 5150. Arnott, Sarah. “Legislation: The Alaska Native Claims Settlement Act: Legislation Appropriate to the Past and the Future.” American Indian Law Review 9, no. 1 (1981): 135–60. In 1966, Alaska tribal groups concluded village agreements to avoid conflicting land claims. After ANCSA, Alaska Native leaders intended to settle their claims against the U.S. This was possible because they were unhampered by federal trust restrictions and paternalist regulations. 5151. Atkinson, Karen. “The Alaskan National Interest Lands Conservation Act: Striking the Balance in Favor of “Customary and Traditional” Subsistence Uses by Alaska Natives.” Natural Resources Journal 27 (Spring 1987): 409–40. Congress enacted this act to protect Native subsistence practices because the state and the Secretary of the Interior failed to do so. The state of Alaska should use the act to protect and encourage Native subsistence. 5152. Belisle, Stacy. “American Indian Law—Tribal Lands—An Indian Tribe That Holds Title to Land by Transfer under Alaska Native Claims Settlement Act May Not Impose Business Tax When Its Land Is Not Indian Country within the Statutory Definition.” Uni-

versity of Detroit Mercy Law Review 76 (Spring 1999): 903–26. The Supreme Court decided that before an area can become a dependent community it must be created for Indian use and the federal government must control the community. In the village of Venetie, these conditions were not met and the village in question was not Indian Country. 5153. Berger, Thomas R. “Conflict in Alaska.” Natural Resources Journal 28 (Winter 1988): 37–62. A shorter version of Village Journal, which studied problems that followed ANCSA’s implementation. 5154. Berger, Thomas R. Village Journey: The Report of the Alaska Native Review Commission. New York: Hill and Wang, 1985. Passed in 1971, ANCSA was intended to end the land controversies in Alaska. A Canadian lawyer reviewed the act’s progress over a decade later and discovered that the act created new problems, and had not solved the old problems. Berger makes recommendations for the future to eliminate conflicts, including land issues and subsistence conflicts with non-Natives, and stresses the importance of defending Native self-government. 5155. Berry, Mary Clay. The Alaska Pipeline: The Politics of Oil and Native Land Claims. Bloomington: Indiana University Press, 1975. Narrative account of Alaska Native–white relations and the effects Native claims had on oil development, culminating in a 1971 settlement, which left the Natives with no known oil land. 5156. Bielski, John R. “Judicial Denial of Sovereignty for Alaskan Natives: An End to the Self-Determination Era.” Temple Law Review 73 (Winter 2000): 1279–1335. The Supreme Court reduced Indian Country in Alaska by developing a very narrow test to determine if a tribal community was dependent. Under this test, tribal corporations created under ANCSA are not Indian Country. This decision is contrary to the policy of self-determination. 5157. Black, Kathryn A., David H. Bundy, Cynthia Pickering Christianson, and Cabot Christianson. “When Worlds Collide: Alaskan Native Corporations and the Bankruptcy Code.” Alaska Law Review 6 (June 1989): 73–132. ANCSA exchanged aboriginal historic claims by providing land transfers and money to tribal corporations. Several corporations experienced financial problems and sought aid under the U.S. Bankruptcy Code, which is at odds with ANCSA. ANCSA pro-

Alaska Natives

tects the cultural needs of the tribal corporations. It does not provide for creditor recovery. 5158. Bliss, Kevin J. “International Whaling Commission Regulations and the Alaskan Eskimo.” Natural Resources Journal 19 (October 1979): 943–56. The International Whaling Commission had not banned aboriginal whale kills, but then the commission mandated a quota reducing the number of whales Natives could take. In Hopson v. Kreps, the Ninth Circuit Court of Appeals preserved the Secretary of State’s authority to make decisions in the best interests of the nation’s foreign affairs. 5159. Block, William E., Jr. “Alaska Native Claims.” Natural Resource Lawyer 4 (April 1971): 223–50. Alaska Natives claim that the transfer of Alaska to the U.S. was done subject to tribal claims and now 80 percent of the state is involved in forty land claims. The land claims were slowed with statehood. Congress should pass legislation to settle these claims and keep the judiciary from interfering. 5160. Bloxham, Steven John. “Aboriginal Title, Alaskan Native Property Rights, and the Case of the Tee-HitTon Indians.” American Indian Law Review 8, no. 2 (1980): 299–331. Tee-Hit-Ton Indians, a Tlingit clan, claimed aboriginal title to lands in Alaska where the U.S. took timber and sought a Fifth Amendment compensation. The Supreme Court ruled in 1955 that an aboriginal property claim is not Indian title and is not a claim for compensation. ANCSA only eliminated aboriginal claims, so the Natives still have vested property rights that were established in 1884. 5161. Blurton, David M. “Canons of Construction, Stare Decisis, and Dependent Indian Communities: A Test of Judicial Integrity.” Alaska Law Review 16 (June 1999): 37–60. The Supreme Court refused to follow the established legal interpretation of federal law in Venetie, as is required by the stare decisis principles, and thus violated the canons of Indian law construction. 5162. Blurton, David M. and Gary D. Copus. “Administering Criminal Justice in Remote Alaskan Native Villages.” Northern Review 11 (Winter 1993): 118–41. The drop in oil revenues led to decreased law enforcement in many Alaskan villages. A practical way to deal with the law and order gaps would be for the villagers to assume that role, but Alaska is a P.L. 280 state, and that creates problems for the villages. The state legislature should amend P.L. 280 or narrowly define who is a “criminal.”

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5163. Bowen, Julia A. “The Option of Preserving a Heritage: The 1987 Amendments to the Alaska Native Claims Settlement Act.” American Indian Law Review 15, no. 2 (1990): 391–408. As the grace period for the Alaska Native corporation stock options drew near, fears that Alaska Natives would lose their shares to outsiders escalated. Congress amended ANCSA in 1987 to extend the period prohibiting alienation, but loopholes exist in the amendments, so stocks are as likely to slip into nonIndian hands as under the original law. 5164. Boyce, John R. and Mats A. N. Nilsson. “Interest Group Competition and the Alaska Native Land Claims Settlement Act.” Natural Resources Journal 39 (Fall 1999): 755–98. Alaska Natives, oil companies, the state of Alaska, and conservation groups are all competing groups seeking settlement of the state’s Native claims issue. 5165. Branson, Douglas M. “Square Pegs in Round Holes: Alaska Native Claims Settlement Corporations under Corporate Law.” UCLA–Alaska Law Review 8 (Spring 1979): 103–38. There is not a good fit between Native regional and village corporations under ANCSA and corporate law. Tribal leaders should be proactive and anticipate potential corporate problems. 5166. Bridges, Karen. “Uncooperative Federalism: The Struggle over Subsistence and Sovereignty in Alaska Continues.” Public Land & Resources Law Review 19 (1998): 131–58. Urbanization in Alaska threatens rural subsistence practices. The crisis originated in the state’s constitution and subsequent federal legislation. Frequently, Alaskan tribal villages and communities are parties to litigation. 5167. Bristol, Tim. “Gaining Influence: Alaska Natives Assert Economic Clout Amid Cultural Uncertainty.” Native Americas 13 (Fall 1996): 14–21. Alaska Natives are spending their monies not only on their economic futures, but also in helping nonnative communities. This is especially true when the ventures share common resources, such as a region’s fisheries. 5168. Bristol, Tim. “‘Indian Country’—Alaska: Partial Answer to a Troubled History.” Native Americas 14 (Summer 1997): 38–45. The absence of a specific elimination of Indian Country status from ANCSA allowed Alaska’s 226 federally recognized tribes (villages) to sue for the application of Indian Country to these lands. The state of Alaska countered and put $1 million dollars

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in a litigation fund. The villages want to apply Indian Country to those lands beyond the village boundaries, thus opening more resources for the tribes. Both the lower and Ninth Circuit Court of Appeals ruled that Indian Country does exist. The state has appealed to the Supreme Court. 5169. Bristol, Tim. “Subsistence Alaska: Important Factor of the Native Economy.” Native Americas 15 (Fall 1998): 32–37. Subsistence hunting and fishing is still vital to tribal populations in the state. 5170. Brown, Bruce L. “Amoco v. Gambell: Aboriginal Rights on the Outer Continental Shelf: Reopening Alaska Native Claims.” Natural Resources Journal 28 (Summer 1988): 621–36. In this case, the Supreme Court reviewed ANCSA and decided that Alaska legally was only the mainland of Alaska and not the waters and islands off the coast, even though Natives depended on these places for subsistence. The result was that outer-continental shelf oil and gas leases proceeded.

5174. Burton, David. “ANCSA Corporation Lands and the Dependent Indian Category of Indian Country.” Alaska Law Review 13 (December 1996): 221–36. The Supreme Court and the Ninth Circuit Court of Appeals have not accepted the concept of Indian Country in Alaska. This court reasoning runs counter to the district court opinion Yukon Flats School District v. Native Village of Venetie, and ignores Congress’s self-determination policy that ANCSA articulated. 5175. Burton, David. “John v. Baker and the Jurisdiction of Tribal Sovereigns without Territorial Reach.” Alaska Law Review 20 (June 2003): 1–27. The Alaskan Supreme Court, in Baker, held that tribal courts outside of Indian Country still have authority to determine child custody issues, thus opening the door for the state’s judicial and executive branches to cooperate with tribal and village courts. Federal law undermined this positive step when the Supreme Court mandated that outside Indian Country, tribes do not have sovereignty.

5171. Brown, Caroline L. “Political and Legal Status of Alaska Natives.” In A Companion to the Anthropology of American Indians, edited by Thomas Biolsi, 248–67. Malden, MA: Blackwell Publishing, 2004. IRA tribal governments and traditional governments exist in Alaska, and P.L. 280 was applied in 1958. ANCSA added more complexity to the legal/political status of Alaska Natives. The Supreme Court’s Venetie ruling has created “sovereigns without territorial reach.”

5176. Burton, David. “Tribal Sovereignty: Alaskan Native Exercise of Sovereign Powers.” American Indian Law Review 12, no. 2 (1984): 245–57. Legislation has provided Alaska Natives title to several million acres, but recognition of tribal sovereignty has not followed. Defining this land as Indian Country is a crucial first step to establishing tribal sovereignty, but tribal communities rely on the federal preemption defined in the statehood act. Tribal groups would be better served if they came under the programs of the Indian Self-Determination Act.

5172. Bryner, William M. “Toward a Group Rights Theory for Remedying Harm to the Subsistence Culture of Alaska Natives.” Alaska Law Review 12 (December 1995): 294–334. Current federal and state law often restricts tribal subsistence culture, which is essential to tribal communities. Native villages should be given the right to recover damages for the loss of their subsistence culture.

5177. Butt, Jeffery Drew. “The Indian Child Welfare Act: Does It Cover Custody Disputes among Extended Family Members?” Alaska Law Review 1 (Summer 1984): 157–70. ICWA was intended to prevent unwarranted placement of Indian children in non-Indian homes. The Alaska Supreme Court defined family in non-Indian cultural terms and did not follow the rule of statutory construction to define a tribal family.

5173. Burch, Ernest S., Jr. “The Land Claims Era in Alaska.” In Arctic, volume 5, edited by David Damas, Handbook of North American Indians, general editor William C. Sturtevant, 657–61. Washington, DC: Smithsonian Institution, 1984. The era began with ANCSA’s passage in 1971 and was marked by a resurgence in Native pride and a reassertion of sovereignty. The act and the regional and corporate structures are described. ANCSA led to further legislation, negotiations, and court settlements.

5178. Byrne, Christopher S. “Chilkat Indian Tribe v. Johnson and NAGPRA: Have We Finally Recognized Communal Property Rights in Cultural Objects?” Journal of Environmental Law and Litigation 8, no. 1 (1993): 109–31. Michael Johnson, an art dealer, claimed that the Whale House art had been given to him, but the tribal community claimed communal ownership over the items and blocked the sale with a tribal ordinance in 1976. Congress passed NAGPRA, putting teeth into the communal property ownership issue. To insure

Alaska Natives

communal ownership, Congress needs to amend the act. 5179. Carpenter, Kristen A. “Interpreting Indian Country in State of Alaska v. Native Village of Venetie.” Tulsa Law Journal 35 (Fall 1999): 73–160. The Supreme Court, in Chevron, now “challenges certain applications of the Indian canons” by requiring “that courts defer to administrative agency interpretations of ambiguous language in statutes they are authorized to administer.” Many federal agencies will be interfering with tribal sovereignty. The Supreme Court has sidestepped the issue in the Venetie decision. 5180. Case, David. Alaska Natives and the Law. Fairbanks: University of Alaska Press, 1984. Descriptive study divided into chapters dealing with federal–Native relations; aboriginal title; reservations; allotments and townsites; federal human service obligations; Native entitlement to human services; federal obligations to protect subsistence; self-governance; and claims to sovereignty. 5181. Case, David. “Subsistence and Self-Determination: Can Alaska Natives Have a More ‘Effective Voice’?” University of Colorado Law Review 60, no. 4 (1989): 1009–35. Despite Nixon’s policy statement on self-determination, there have been conflicts between federal and state agencies over tribal subsistence practices, which hinder tribal self-determination. Of the wildlife agencies affecting tribal subsistence, the Alaska Eskimo Whaling Commission gives Native people the greatest voice. 5182. Chrisbens, Erin Goff. “Indian Sovereignty after ANCSA: Divesting Tribal Sovereignty by Interpretation in Alaska v. Native Village of Venetie Tribal Government.” Denver Law Review 76, no. 1 (1998): 307–29. The village of Venetie had the option under ANCSA to keep its land in a corporation or move the land into dependent tribal land status. It did the latter, and so federal programs continued. That made the village Indian Country, thus allowing them to maintain their inherent sovereignty, but the Supreme Court eliminated the community’s inherent sovereignty in a misguided decision. 5183. Cole, Terrence M. “Jim Crow in Alaska: The Passage of the Alaska Equal Rights Act of 1945.” Western Historical Quarterly 23 (November 1992): 429–49. Discusses the Alaska Native Brotherhood’s leading role in efforts to reverse discriminatory policies in the territory. They were joined by Governor Ernest Gruening and other non-Natives who favored equal rights. In 1944, a seventeen-year-old mixed-blood

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woman named Alberta Schenck refused to move from the whites-only section of the Dream Theatre in Nome. Her arrest helped fuel support for the 1945 Alaska Equal Rights Act, which officially prohibited segregation. 5184. Conn, Stephen. “Aborginial Rights in Alaska.” Law & Anthropology 2 (1987): 73–91. Alaska Natives fall into three linguistic groups, did not have treaties with the U.S., are governed by villages, and have a legal status based on the IRA as either state chartered towns or traditional village communities. ANCSA created conflicts between corporations and the individual, thus adding to existing confusion about legal status. 5185. Conn, Stephen. “Smooth the Dying Pillow: Alaska Natives and Their Destruction.” Law & Anthropology 5 (1990): 167–83. ANCSA made the tribes into observers in the corporate experiment. The decision to create the great corporations diminished the sovereignty of the small villages that had managed resources so well. 5186. Conn, Stephen and Bart K. Garber. “State Enforcement of Alaska Native Tribal Law: The Congressional Mandate of the Alaska National Interest Lands Conservation Act.” In 1989 Harvard Indian Symposium, 99–133. Cambridge, MA: President and Fellows of Harvard College, 1990. The Alaska Natives are not pleased with state management of their subsistence practices. ANILC was intended to end this hostility toward tribal subsistence by forcing the state of Alaska to incorporate tribal subsistence practices. 5187. Conn, Stephen and Arthur Hippler. “Paralegals in the Bush.” UCLA–Alaska Law Review 3 (Fall 1973): 85–102. Examines the increase of paralegals in Alaska following statehood. Tribal villages have more outsiders participating in village justice than before. This change offers hope for better representation. 5188. Conn, Stephen and Arthur Hippler. “Wedding U.S. Law to Eskimo Tradition.” Juris Doctor 4 (April 1974): 40–44. Eskimo society developed sophisticated ways to avoid conflict using village councils. U.S. law ended village council resolution authority, weakening the councils. Violent offenders were removed from the village, but no one was in charge of the offender when they returned to their home. Now there is a magistrate system, and state law is moving quickly into the villages, replacing the traditional reconciliation system.

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5189. Connors, Joan F. “Resolving Disputes Locally in Rural Alaska.” Mediation Quarterly 10 (Summer 1993): 367–86. Focuses on the Minto Tribal Court, Sitka Tribal Court, and the Barrow conciliation organization in studying culturally proper dispute resolution. Connors examines the troubles, organization, staffing, methods, and successes of these three court systems. The three differ in their degree of cultural solidarity and the key to success is committed volunteers and willing community members. 5190. Deganan, June I. “Inuit: Aspects of Life of Indigenous People in Alaska.” St. Thomas Law Review 10 (Fall 1997): 103–13. Education is a crucial means to move forward in this changing Alaskan transitory life. 5191. Dillingham, Terese. “Playing Reindeer Games: Native Alaskans and the Federal Trust Doctrine.” Boston College Environmental Affairs Law Review 26 (Spring 1999): 649–85. Congress passed the Reindeer Industry Act in 1937, creating a Native reindeer monopoly for Alaskan tribal subsistence. In 1997, the Ninth Circuit Court of Appeals ruled that the act did not prevent non-Indians from raising and selling reindeer. Tribal reindeer operators now face challenges in the market from commercial reindeer feedlot owners. The court failed to uphold the government’s trust responsibility to protect tribal reindeer operations from economic destruction. 5192. Di Pietro, Susanne. “Forward to Native Law Selections: Recent Developments in Federal Indian Law as Applied to Native Alaskans.” Alaska Law Review 10 (December 1993): 333–34. A 1993 Department of the Interior Solicitor’s Opinion declared some Alaskan tribal villages to be tribes for federal purposes. The BIA published a list of federally acknowledged tribes. Because Alaskan villages function as political entities, this list is important and illustrates the Clinton administration’s recognition of tribal sovereignty. 5193. Di Pietro, Susanne. “Tribal Court Jurisdiction and Public Law 180: What Role for Tribal Courts in Alaska?” Alaska Law Review 10 (December 1993): 335–61. In 1993, one hundred tribal villages operated councils or courts to resolve local disputes. They heard child welfare cases, liquor violations, and minor criminal cases based on their sovereign status. Congress amended P.L. 280 in 1958, and extended state civil authority over Indian Country. State courts also claim jurisdiction over minor children. Despite non-state recognition, the tribal courts still function.

5194. Dombrowski, Kirk. Against Culture: Development, Politics, and Religion in Indian Alaska. Lincoln: University of Nebraska Press, 2001. Current tension between converts to fundamentalist Christian faiths and Native dance groups, including the intentional burning of dancing regalia, reflects these churches’ stance against Tlingit and Haida culture. Discussion includes ANCSA’s influence, the IRA, timber operations, and commercial fishing. 5195. Dombrowski, Kirk. “The Praxis of Indigenism and Alaska Native Timber Politics.” American Anthropologist 104, no. 2 (2002): 1062–73. ANCSA has opened the door to the larger political and economic forces that shape the state’s history. This has permitted logging companies to circumvent environmental laws to the detriment of tribal communities. 5196. Emory, Meade and Robert A. Warden. “Income Taxation of Distributions by Alaska Native Corporations: An Ambiguity in Need of Clarification.” Washington Law Review 64 (July 1989): 551–79. ANCSA included no language stating whether Native corporations were taxable. Congress should pass corrective legislation. 5197. Finley, Barbara. “Environmental Law: Oil, Eskimos & the Beaufort Sea—Round II—Hammond v. North Slope Borough.” UCLA Alaska Law Review 12 (Fall 1982–Spring 1983): 167–82. In 1979, Alaska allowed an oil lease for the Beaufort Sea and the North Slope Borough residents sued to stop drilling. The case went before the Supreme Court of Alaska, which rubber-stamped the lease, thus permitting drilling to continue despite its violations of several statutes. 5198. Flanders, Nicholas E. “The Alaska Native Corporation as Conglomerate: The Problem of Profitability.” Human Organization 48 (Winter 1989): 299–312. ANCSA corporations are not always making a profit and control of these corporations can slip from tribal to non-tribal groups. These corporations face the difficult task of finding good investments. Congress amended the claims act in 1987, but profitability is still a major problem. 5199. Ford, Marilyn J. Ward. “Indian Country and Inherent Tribal Authority: Will They Survive ANCSA?” Alaska Law Review 14 (December 1997): 443–70. ANCSA extinguished aboriginal title to Alaskan lands, but did ANCSA eliminate Indian Country and its associated tribal sovereignty? Ford defends Venetie and urges the Supreme Court to uphold that decision demonstrating that ANCSA did not elimi-

Alaska Natives

nate either Indian Country or tribal sovereignty of the village of Venetie. 5200. Freeman, Milton M. R., Lydmila Bogoslovskayas, Richard A. Caulfield, Ingmar Egede, Igor I. Krupnik, and Marc G. Stevenson. Inuit, Whaling, and Sustainability. Walnut Creek, CA: AltaMira Press, 1998. The Inuit have been adversely affected by blanket whaling bans and the International Whaling Commission because whales are integral to their lives. 5201. Fuller, Lauren L. “Alaska Native Claims Settlement Act: Analysis of the Protective Clauses of the Act through a Comparison with the Dawes Act of 1887.” American Indian Law Review 4, no. 2 (1976): 269–78. Examines both pieces of legislation and finds common themes. Congress needs to avoid repeating the mistakes of the 1887 General Allotment Act in Alaska. 5202. Garber, Bart K. and Stephen Conn. “A Change in the Tide: The United States Supreme Court’s Assault on Federal Indian Law and Policy in ‘Brendale v. Confederated Tribes and Bands of the Yakima Indian Nation’ and Its Relation to Alaska and Canada.” Law & Anthropology 8 (1996): 107–22. The Brendale court threatens to undermine the very tenets of federal Indian law. This was a zoning case that stopped the tribe from implementing its own regulations on non-Indians. The high court used demographics, non-Indians’ right to vote, and the absence of specific legislation that was contrary to the tribe’s interest to defend its ruling. 5203. Getches, David H. “Alternative Approaches to Land Claims.” In Irredeemable America: The Indians’ Estate and Land Claims, edited by Imre Sutton, 301–35. Albuquerque: University of New Mexico Press, 1985. ANCSA earmarked 45-million acres of Alaska, plus $962.5 million, to settle tribal claims. Based on the corporate model, ANCSA is ill-suited to Native communities that would rather hunt than log. 5204. Gilcrest, Debra Thatcher. “The High Price of Ivory: Seeking a Balance for Alaska Natives and Walrus.” Public Land Law Review 11 (1990): 135–52. As walrus populations decline in Alaska, state and federal agencies need to examine tribal hunting practices to help the species recover. 5205. Graburn, Nelson H. “Eskimo Law in Light of Selfand Group-Interest.” Law & Society Review 4 (August 1969): 45–60.

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Discusses Eskimo legal systems and whether they have extensive or non-extensive legal mechanisms for solving disputes. One must not examine their reactions in terms of simple offense and resolution. Their conflict resolution mechanisms are very flexible. 5206. Hanely, Pat. “Warrentless Searches for Alcohol by Native Alaskan Villages: A Permissible Exercise of Sovereign Rights or an Assault on Civil Liberties.” Alaska Law Review 14 (December 1997): 471–99. Federal acceptance of Alaska Native Villages frees them from Fourth Amendment search and seizure procedures and the ICRA standards cannot be enforced in Alaska Native Villages. The villages should not conduct alcohol border searches, yet they will continue to do so since judicial review is not likely. 5207. Harring, Sidney. “The Incorporation of Alaska Natives under American Law: The United States and Tlingit Sovereignty, 1867–1900.” Arizona Law Review 31, no. 2 (1989): 279–327. Judge Matthew Deady consistently ruled that Tlingit land was not Indian Country. The Organic Act created civil government and non-Indians began to encroach on Tlingit sovereignty, but they maintained their own laws for conflict resolution. Eventually, Alaska assumed more jurisdiction over Tlingit life. 5208. Haycox, Stephen W. “Economic Development and Indian Land Rights in Modern Alaska: The 1947 Tongass Timber Act.” Western Historical Quarterly 21 (February 1990): 21–46. Discusses an act that authorized timber lease sales in Alaska’s Tongass Forest, and its connection to termination policies. Opponents included the Haida and Tlingit tribes and their allies in the Interior Department, while proponents included the U.S. Forest Service, Alaska territorial officials, and the pulp industry. Advocates for the tribes argued that Indian land title superceded the need for economic development in Alaska, but the argument failed. 5209. Haycox, Stephen W. “Tee-Hit-Ton and Alaska Native Rights.” In Law for the Elephant, Law for the Beaver: Essays in the Legal History of the North American West, edited by John McLaren, Hama Foster, and Chet Orloff, 127–46. Pasadena, CA: Ninth Judicial Circuit Historical Society, 1992. In this 1955 case involving a Tlingit band, the Supreme Court held that an Indian title right was not a property right and thus compensation under the Fifth Amendment was not required. The court should consider the real-life consequences of such cases. 5210. Haynes, James B. “The Alaska Native Claims Settlement Act and Changing Patterns of Land Ownership

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in Alaska.” Professional Geographer 28 (February 1976): 66–71. ANCSA encouraged federal retention of great tracts in the state and three million acres were reserved for tribal groups. This act will necessitate new management strategies for all involved. 5211. Hazeltine, Sheri L. “Speedy Termination of Alaska Native Parental Rights: The 1998 Changes to the Alaska’s Child in Need of Aid Statutes and Their Inherent Conflict with the Mandates of the Federal Indian Children Welfare Act.” Alaska Law Review 19 (June 2002): 57–84. Foster care rates have increased in Alaska due to the state passing legislation making it easier to end Alaska Native parental rights in an effort to conform to the 1997 congressional Adoption and Safe Families Act. The state Child in Need of Aid statutes have terminated Native families’ parental rights. The special protections intended for tribal children under ICWA were made part of the new legislation. To eliminate this conflict between state law and ICWA, Alaska should amend its law. 5212. Hippler, Arthur E. and Stephen Conn. “The Changing Legal Culture of the North Alaska Eskimo.” Ethos 2 (Summer 1974): 177–88. Discusses the cultural traits found within the Eskimo community and their dislike for centralized authority. The missionaries that arrived brought the village council government that remained until after WWII when Alaska began to foster the magistrate system that tribal people did not favor. 5213. Hippler, Arthur E. and Stephen Conn. Northern Eskimo Law Ways and their Relationships to Contemporary Problems of “Bush Justice”: Some Preliminary Observations on Structure and Function. Fairbanks: Occasional Papers, no. 10, Institute of Social Economic and Governmental Research, University of Alaska, July, 1973. The authors note “that embedded in the culture and personality of the northern Eskimo was a value system that led him to avoid conflicts by behaving nonaggressively.” They tried to avoid the western law’s adversarial system like they avoided conflict. The authors provide suggestions for reform, such as the creation of a strong role for the village council. 5214. Hippler, Arthur E. and Stephen Conn. Traditional Athabascan Law Way and Their Relationship to Contemporary Problems of “Bush Justice”: Some Preliminary Observations on Structure and Function. Fairbanks: Occasional Papers, no. 7, Institute of Social Economic and Governmental Research, University of Alaska, August 1972.

Athabascan law does not understand nor accept the rationale of the western legal system. Centers of authority are far from the village and Athabascans are arrested for violating laws that have no meaning in tribal law. 5215. Hippler, Arthur E. and Stephen Conn. “The Village Council and Its Offspring: A Reform for Bush Justice.” UCLA–Alaska Law Review 5 (Fall 1975): 22–57. In pre-contact Native communities, individuals attempted “to avoid conflict with each other by dissimulation of feelings.” When the individual failed, the group exercised power to “bring unquestionable power on the offender.” Teachers and missionaries introduced western jurisprudence that led to the village councils, and ANCSA provides even more western legal intrusion. 5216. Hirschfield, Martha. “The Alaska Native Claims Settlement Act: Tribal Sovereignty and the Corporate Form.” Yale Law Journal 101 (April 1992): 1331–55. ANCSA created regional and village corporations and after twenty years, both levels of corporations are in financial trouble. Corporate operations clash with tribal views of sovereignty. One way to end this conflict is to rethink ANCSA’s structure and look to the Australian land holding model based on tribal control over local land and property. 5217. Hoebel, E. Adamson. “Law-Ways of the Primitive Eskimos.” Journal of Criminal Law and Criminology 31 (March–April 1941): 663–83. Describes the law of the Eskimo cultural area including property rights, leadership, infanticide, homicide, song duels, and sexual competition. Offers insights into past jurisprudence. 5218. Johnson, Carl H. “A Comity of Errors: Why John v. Baker Is Only a Tentative First Step in the Right Direction.” Alaska Law Review 18 (June 2001): 1–57. Before Baker, Alaska courts rejected tribal sovereignty except for the Metlakatla’s. Baker was a custody dispute where the state recognized the inherent sovereignty of Alaska’s tribal communities and that, despite Venetie, tribal communities have concurrent jurisdiction with the state. A better solution would be a full faith and credit recognition of tribal court rulings by the state courts. 5219. Jones, Dorothy Knee. A Century of Servitude: Pribilof Aleuts under U.S. Rule. Washington, DC: University Press of America, 1980. After the U.S. purchased these islands from Russia, it kept the Natives in a state of servitude through a hidden internal colonialism. The federal government wanted Native peoples’ labor in fur seal har-

Alaska Natives

vests rather than their lands. The U.S. government should help the Pribilof Aleuts find alternative forms of economic development. 5220. Josephson, Andrew. “Katie John and Totemoff: The United States and Alaska Clash over the Reserved Water Rights Doctrine: and Native Alaska Hunting and Fishing Rights—The U.S. Supreme Court Passes on an Opportunity to Resolve the Subsistence Debate.” Dickinson Journal of Environmental Law & Policy 6 (Spring 1997): 225–52. Alaska’s constitution prohibits one group from having special subsistence privileges. The U.S. permits rural residents special fishing and hunting rights, thus creating sovereignty clashes over the equal access clause and control over submerged lands. Neither case led to a settlement over subsistence issues. 5221. Kasen, Larry M. “Validity of Claims under the Alaskan Native Claims Settlement Act Determined.” Natural Resources Journal 19 (April 1979): 381–84. In Doyon, Limited et al. v. Bristol Bay Native Corp. (1978), the Ninth Circuit Court ruled that Natives who opted out of ANCSA and instead took fee land were not eligible for claims settlement funds. 5222. Kelly, Eugene. “Justice for the Alaska Indians: Shall We Play the White Man’s Game Once More?” American Indian 1 (Summer 1944): 3–11. The U.S. has neglected its responsibilities to Alaska Natives by enabling fishing corporations, mining interests and traders to take economic advantage of them. Alaska Natives are also subjected to racial discrimination and segregation. Since Congress extended the IRA to Alaska in 1936, little has changed. 5223. Knapp, Lyman E. “A Study upon the Legal and Political Status of the Natives of Alaska.” American Law Register 39 (May 1891): 325–39. Senate Bill 4546 was introduced to define citizenship for all males in Alaska as townsites were being built in the Territory. Knapp discusses the early Russian treaty and argues that they are subject to U.S. rules and regulations. Alaska Natives have aboriginal status, except for the Metlakahtla, who have permission to emigrate. 5224. Korsmo, Fae L. “Problem Definition and the Alaska Natives: Ethnic Identity and Policy Formation.” Public Studies Review 9 (Winter 1990): 294–306. ANCSA departed from past policies by rejecting the reservation in favor of state chartered corporations. Alaska Natives used the congressional hearings on ANCSA as an opportunity to teach others about their ethnicity and identity.

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5225. Lantis, Margaret. “Security for Alaskan Eskimos.” American Indian 5, no. 4 (1950): 32–40. Discusses ways that Eskimo traditional life can be preserved while fostering economic development, including granting occupancy and use rights, preferential treatment in granting leases and permits, land reservation and creation of an Alaskan inter-agency review board. 5226. Lathrop, Anthony. “People of the Caribou in the Land of the Oil: Climate Change, the Venetie Decision, and Oil Development in the Arctic National Wildlife Refuge.” Wisconsin Environmental Law Journal 8 (Spring 2002): 169–96. The Supreme Court limited the sovereignty of the Native village of Venetie based on ANCSA. This, in turn, limited the “Gwich’in” people’s ability to regulate the land and the caribou. Ongoing threats to drill in the Arctic National Wildlife Refuge and the Kyoto treaty also threaten the Gwich’in way of life. 5227. Lazarus, Arthur, Jr. and W. Richard West Jr. “The Alaska Native Claims Settlement Act: A Flawed Victory.” Law and Contemporary Problems 40 (Winter 1976): 132–65. ANCSA’s most serious flaw is the monetary settlement. Given the high rate of inflation in the state’s economy, the settlement will provide insufficient money to conduct business. One way to raise money is for the tribal corporations to use their subsurface resources. 5228. Lee, Nella. Crime and Culture in Yu’ik Villages: An Exploratory Study. Criminology Studies 10, Lewiston, NY: Edwin Mellen Press, 2000. Living in western Alaska, the Yu’ik encountered change that affected their ability to maintain traditional justice and move toward western institutions. Chapters include discussions of tribal justice, the introduction of alcohol, new territorial policies, statehood, and ANCSA. 5229. Lee, Nella. “Scattered Like the Reindeer: Alaska Natives and the Loss of Autonomy.” In Native Americans and the Criminal Justice System, edited by Jeffrey Ian Ross and Larry Gold, 217–33. Boulder, CO: Paradigm Publishers, 2006. Alaska Natives are overcriminalized in part because the justice system does not account for the reality that many of them are not assimilated. ANCSA led to greater Native subordination and dependency, which in turn has contributed to social problems. Nella lists the Alaska Natives Commission’s suggested remedies for increasing Native “self-reliance, self-determination and integrity,” including changes in the criminal justice system.

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5230. Lindsay, Britt. “Tribal Land Quarrels in Alaska: Leisnoi v. Stratman.” Public Land & Resources Law Review 20 (1999): 169–83. Examines the legal difficulties involving dual ownership of lands that Native villages faced after ANCSA. The Ninth Circuit Court of Appeals dismissed the village of Leisnoi’s claims against a defendant for taking sand and gravel from the village’s boundaries. 5231. Linxwiler, James D. “The Alaska Native Claims Settlement Act: The First 20 Years.” Rocky Mountain Mineral Law Institute 38 (1992): 2-1–2-59. Considers economic issues that Alaska Native corporations faced. Some made mistakes and others did not. ANCSA escalated the sovereignty clash between villages and corporations and the issue of Indian Country continues to surface. 5232. London, J. Tate. “The ‘1991 Amendments’ to the Alaska Native Claims Settlement Act: Protection for Native Lands?” Stanford Environmental Law Journal 8 (1989): 200–228. The original act was passed during a time of inherent tension between the policies of forcing Alaska Natives to assimilate by separating land from people, on one hand, and preserving tribal traditional culture on the other. The 1991 amendments provide Alaska Natives with different means to pursue self-determination. 5233. McCain, George A., Jr. “Real Property—Alaskan Indians—Right to Tribal Lands.” Alabama Law Review 8 (Fall 1955): 170–74. Congress, in 1947, ordered the Secretary of Agriculture to cut trees on Alaskan lands and the Tee-HitTon people brought suit, claiming it violated their aboriginal rights of occupation. The Supreme Court ruled against them while ignoring the organic act that brought Alaska into the U.S. and the well-founded principle that ambiguities are decided in favor of tribes. 5234. McLeod, Mary Beth. “The Subsistence Debate in Alaska: Who Will Control the Navigable Waters?” West–Northwest Journal of Environmental Law and Policy 3 (Winter 1996): 355–70. Alaska Natives have suffered at the hands of both federal and state authorities in the debate over subsistence. Contradictory court decisions have created more confusion regarding subsistence issues. Control of navigable waters is an important question that courts will be asked to address, and the priority should be subsistence preference for Alaska Natives. 5235. McNabb, Steven. “Impacts on Federal Policy Decisions on Alaskan Natives.” Journal of Ethnic Studies 18 (Spring 1990): 111–26.

The National Environmental Policy and the Alaska National Interest Lands Conservation Act are two government decisions that influence tribal life. Despite the rural character of Alaska, government decisions have an urban bias that would reduce assistance to tribal communities. 5236. McNoble, Steven and Lynn A. Robbins. “Native Institutional Responses to the Alaska Native Claims Settlement Act: Room for Optimism.” Journal of Ethnic Studies 13 (Spring 1985): 12–28. ANSCA corporations will be pushed to the limit as they strive for financial stability and the villages will have to deal with the state. The transfer of shares in the corporations to non-natives and tax issues will be among the greatest concerns for Alaska Natives. 5237. Madden, Ryan. “‘The Government’s Industry’: Alaska Natives and Pribilof Sealing during World War II.” Pacific Northwest Quarterly 91 (Fall 2000): 202–209. During the war, Alaska Natives were relocated from the Pribilof Islands, which were declared an active war zone. They were moved to camps administered by the Fish and Wildlife Service where their movement was restricted. They were also manipulated as laborers assisting federally regulated seal harvests. This experience pushed the Pribilovians to push for their civil rights. Other groups, including the Alaska Native Brotherhood, offered assistance. 5238. Magnanni, Vanessa. “Constructing Tribal Sovereignty for the 21st Century: The Story of Lawmaking in Chilkat Village, IRA v. Johnson.” Boston College Third World Law Journal 18 (Winter 1998): 45–69. Michael Johnson was an art dealer who was trying to remove important art objects from the Alaskan village of Chilkat. A nine-year battle ensued to determine ownership of these objects. The village had passed a 1976 Artifacts Ordinance. Through semiotic language based on cultural meanings, the village broke with western legal tradition, and the artifacts remained in the village. 5239. Maguire, Peggy. “Alaska Fish and Wildlife Federation v. Dunkle: Fouled Up Waterfowl Management on the Yukon-Kuskokwin Delta.” Environmental Law 19 (Summer 1989): 909–32. In 1916, a Canada–U.S. treaty prohibited migratory waterfowl hunting from March 10 to September 1. Two years later, Congress passed the Migratory Bird Treaty Act to implement the treaty terms. To continue to hunt waterfowl in the spring, the U.S. Fish and Wildlife Service entered into the Hooper Bay Agreement with coastal Natives to gain their support to restrict hunting the emperor geese. The Natives agreed to assist the federal agency in enforc-

Alaska Natives

ing the hunting ban. Dunkle was filed to determine if the cooperative plans violated the closed season provisions of the treaty. The court found this to be true. To protect subsistence hunting, Congress should intervene.

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tections as tribal nations in the lower forty-eight states. Stevens, one village incorporated under the IRA, used federal and state funds to build public works, but terminated the contract, citing their immunity from suit to prevent the contractor from suing. This defense is an effort to recognize tribal sovereignty.

5240. Marenin, Otwin. “Conflicting Perspectives: On the Role of the Village Public Safety Officer in Native Villages in Alaska.” American Indian Quarterly 18 (Summer 1994): 297–319. Contrasts Native and non-Native perspectives on a law enforcement and public safety program created in 1979. The mostly Native VPSO coordinators and many villagers are more likely to approve of western law enforcement in Native villages than are certain non-Native respondents.

5245. Michie, Preston. “Alaskan Natives: Eskimos and Bowhead Whales: An Inquiry into Cultural and Environmental Values That Clash in Courts of Law.” American Indian Law Review 7, no. 1 (1979): 79–114. Tribal hunting quotas can be established under the Whaling Convention Act. A healthy whale population is the key to preserving Eskimo culture.

5241. Marenin, Otwin. “Policing the Last Frontier.” In Native Americans, Crime, and Justice, edited by Marianne O. Nielsen and Robert A. Silverman, 132–44. Boulder, CO: Westview Press, 1996. The Village Public Safety Officer Program was started in Alaska to serve rural, isolated communities. Despite an effort to accommodate tribal cultures, this program is still an imposed outside policing program that continues to alienate people.

5246. Miller, Lloyd Benton. “Caught in a Crossfire: Conflict in the Courts, Alaska Tribes in the Balance.” In 1989 Harvard Indian Symposium, Cambridge, MA: President and Fellows of Harvard College, 1990, 135–51. Alaska’s remoteness created a situation where the Natives did not sign treaties with the U.S., nor were they removed from their lands. Conflict stems from the problem of determining if villages are tribes.

5242. Martin, Fredericka. “A Pribilof Bill of Rights.” American Indian 3 (Fall 1946): 15–25. The decline of fur seals forced the U.S. to ban their hunting, but the ban excluded the Pribilof Aleuts under specific conditions. This forced them into a life of sealing under U.S. control. To insure a quality of life, they must have the advantages of a democracy and help from other citizens.

5247. Mills, James P. “The Use of Hiring Preferences by Alaska Native Corporations after Malabed v. North Slope Borough.” Seattle University Law Review 28 (Winter 2005): 403–34. The North Slope Borough, an Alaska Native corporation created under ANCSA, preferentially hired Alaska Natives, but the state Supreme Court determined the borough’s practice violated the state constitution. Since Congress created the corporation, federal law should preempt state law and preferences hiring is acceptable as long as the persons hired are tailored to the corporation. Since Congress has passed Indian preference for the lower forty-eight states, Congress should amend the law to include Alaska.

5243. Matal, Joseph D. “A Revisionist History of Indian Country.” Alaska Law Review 14 (December 1997): 283–351. Traces the changing concept of Indian Country. Historically Indian Country co-existed with tribal sovereignty to the exclusion of state authority. In the early twentieth century, the Supreme Court changed the earlier definition, deciding that tribal sovereignty existed wherever there was a dependent Indian community. Courts are now applying the 1948 dependent community definition to preempt state control. There should be a return to a stricter standard making only Metlakatla into Indian Country in Alaska, not all the villages. 5244. Matteoni, Paul A. “Alaskan Native Indian Villages: The Question of Sovereign Rights.” Santa Clara Law Review 28, no. 4 (1988): 875–904. The Alaska Native groups, who live in villages and have developed village councils for governing purposes, believe that they have the same rights and pro-

5248. Mitchell, Donald Craig. “Alaska v. Native Village of Venetie: Statutory Construction of Judicial Usurpation? Why History Counts.” Alaska Law Review 14 (December 1997): 353–441. Surveys the legislative history of Alaska Natives’ sovereignty and the existence of Indian Country in Alaska from territorial purchase to ANCSA and subsequent amendments. Based on congressional intent, executive execution of intent, and the courts’ interpretation of intent, the Ninth Circuit Court of Appeals erred in Venetie I and II, claiming that Indian Country existed in Alaska. 5249. Mitchell, Donald Craig. Sold American: A Story of Alaska Natives and Their Land, 1867–1959: The

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Army to Statehood. Hanover, NH: University Press of New England, 1997. History of non-Indian use of Native lands and resources for economic benefit and how Alaska Natives have participated in this economic system. Congress did not extinguish Native possessory right upon the enactment of the Alaska Statehood Act in 1958. This latter decision helped lead to ANCSA. 5250. Morgan, Lael. And the Land Provides: Alaskan Natives in a Year of Transition. Garden City, NY: Doubleday, 1974. Journalistic account of life in Alaska Native villages following a major land claims settlement. 5251. Naske, Claus-M. “Ernest Gruening and Alaska Native Claims.” Pacific Northwest Quarterly 82 (October 1991): 140–48. The Governor saw no need for Alaska Natives to gain reservations under the 1936 Alaska Reorganization Act, pushing for assimilation instead. He predicted that separation would lead to racial division. 5252. Noble, Heather. “Tribal Powers to Regulate Hunting in Alaska.” Alaska Law Review 4 (December 1987): 223–75. Congress created one Alaska reservation on the Annette Islands for the Metlakahtlas. The other restricted tribal lands are townsite lots and Native allotments, creating a checkerboard of state, tribal, and federal jurisdictions across Alaska. Congress passed ANCSA, intending these lands to be for tribal subsistence, but multiple jurisdictions have created local hunting problems. State and tribal leaders should negotiate a coordinated game management system. 5253. Nockels, Joan M. “Katie John v. United States: Redefining Federal Public Lands in Alaska.” Environmental Law 26 (Summer 1996): 693–727. Katie John, an Athabascan, had fished on the Copper River until the state closed it to fishing in 1964. She sued the U.S., wanting her fishing locations placed under federal jurisdiction, not the state, so she could maintain her rural preference. The Ninth Circuit Court of Appeals ruled against her. 5254. Marenin, Otwin and Gary Copus. “Policing Rural Alaska: The Village Public Safety Officer (VPSO) Program.” American Journal of Police 10, no. 4 (1991): 1–26. Policing both Alaska Native villages and rural areas is not easy and is expensive. The VPSO is an alternative to the professional police model to provide officers to the multi-cultural and different political jurisdictions. To deal with this diversity, VPSO officers are under state authority, but responsible to local native communities and their unique demands.

5255. Peel, Ryan T. “Katie John v. United States: Balancing Alaskan State Sovereignty with a Native Grand Mother’s Right to Fish.” BYU Journal of Public Law 15, no. 2 (2001): 263–79. The Alaska National Interest Lands Conservation Act (1994) spawned a law suit between Katie John and the state that involved rural communities’ subsistence. The court noted that the law created a federal reserved water right that federal agencies must manage. The state’s governor appealed the lower court decision to stem the extension of federal authority, and the appellate court protected Katie John’s right to fish at specific locations. 5256. Perkins, Joseph J., Jr. “The Great Land Divided but Not Conquered: The Effects of Statehood, ANCSA, and ANICA on Alaska.” Rocky Mountain Mineral Law Institute 34 (1988): 6-1–6-29. Describes the problems mining companies now face when trying to do business in Alaska after statehood and congressional passage of ANCSA and ANICA. 5257. Perret, Karen. “The Alaska Native Claims Settlement Act.” Indian Historian 11 (Winter 1977): 3–10. The U.S. violated its trust responsibility to Alaska Natives with ANCSA, because the act allows corporations to take over tribal assets. This violation was made possible by defining “Native” as an economic concept. 5258. Pettit, Kenton Keller. “The Waiver of Tribal Sovereign Immunity in the Contractual Context: Conflict between the Ninth Circuit and the Alaska Supreme Court?” Alaska Law Review 10 (December 1993): 363–99. Alaska’s high court claims that tribal groups waived their claims of sovereign immunity. This ruling contradicts the Federal Ninth Circuit Court of Appeals decision that stated any waiver must be clearly expressed. 5259. Philp, Kenneth R. “The New Deal and Alaskan Natives, 1936–1945.” Pacific Historical Review 50 (1981): 309–27. The 1936 Alaska Reorganization Act applied aspects of the IRA to the territory. It “provided the natives with needed financial assistance, but it was poorly administered and inadequately funded by Congress.” New Deal reformers also failed to win over the necessary white or Native grass-roots support, and imposed their own ideas and values. Instead of adequately resolving claims, the act contributed to racial tensions. 5260. Price, Monroe E. “A Moment in History: The Alaska Native Claims Settlement Act.” UCLA–Alaska Law Review 8 (Spring 1979): 89–101.

Alaska Natives

The act was monumental in Alaskan history because it imposed the corporate structure on Alaska Natives, opened resources to non-Indian exploitation, and followed the traditional congressional policy of quieting tribal title. Many interpreted the law as opening the land. 5261. Price, Monroe E. “Region–Village Relations under the Alaska Native Claims Settlement Act.” UCLA–Alaska Law Review 5 (Fall 1975): 58–79; cont. 5 (Spring 1976): 237–65. The act reveals the complexities of settling land claims and establishing future administration of Alaskan lands. Potential conflicts might emerge as the decentralized villages must now do business with the Native corporations who have sub-surface rights to the settlement lands. Part II examines the non-land issues that may pose other conflicts. 5262. Price, Monroe E., Richard R. Purtich, and D. Gerber. “The Tax Exemption of Native Lands under Section 21 (d) of the Alaska Native Claims Settlement Act.” UCLA–Alaska Law Review 6 (Fall 1976): 1–33. This short section of the lengthy act has a twentyyear exemption on taxes that will determine the type of decisions tribal communities will make in the future. The second part of this section provides for the taxation of rights-of-way according to local or state law. 5263. Quam, Darrin J. “Right to Subsist: The Alaska Natives’ Campaign to Recover Damages Caused by the Exxon Valdez Spill.” Georgetown International Environmental Law Review 5, no. 1 (1992): 177–213. Both native villages and corporations became involved with the Valdez spill by seeking compensation for damage. The villages were excluded, but the corporations were successful in pushing litigation and now future disasters like this will be litigated under the 1990 Oil Pollution Act. 5264. Richards, Andrew P. “Aboriginal Title or the Paramountcy Doctrine? Johnson v. McIntosh Flounders in Federal Waters off Alaska in Native Village of Eyak v. Trawler Diane Marie, Inc.” Washington Law Review 78 (August 2003): 939–71. John Marshall penned the opinion that permits tribal nations exclusive use of their territories even when they fall under U.S. sovereignty. Five Alaskan villages claimed aboriginal rights to the sea beds off the coast and federal fishing regulations hindered their activities. The Ninth Circuit Court of Appeals ruled that the paramountcy doctrine had eliminated their aboriginal title. 5265. Rinaldi, Catherine A. “Amoco Production v. Village of Gambell: The Limits to Federal Protection of Na-

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tive Alaskan Subsistence.” Virginia Journal of Natural Resources Law 7 (Fall 1987): 147–73. The Supreme Court ruled in 1987 that a provision of the Alaska National Interest Lands Conservation Act intended to protect Alaskan subsistence did not prohibit government sale of oil and gas leases on the Outer Continental Shelf. The profit-driven Native corporations created under ANCSA threaten to divide tribal people into those who can live on corporate profits and those who cannot. 5266. Sacks, Jeremy David. “Culture, Cash or Calories: Interpreting Alaskan Native Subsistence Rights.” Alaska Law Review 12 (December 1995): 247–89. The state’s current culturally based subsistence model ignores Native subsistence customs. An alternative route should be considered that would permit Alaska Natives to make their own decisions. Their choices would not threaten animal populations and would also link tribes to potential allies, including loggers and farmers. A new state subsistence law would be required. 5267. Shapio, David G. “Jurisdiction and the Hunt: Subsistence Regulation, ANILCA and Totemoff.” Alaska Law Review 14 (June 1997): 115–40. Congress passed the Alaska National Interest Lands Conservation Act in 1980 and permitted the state to regulate this act on federal lands. Later, the federal government assumed control because state regulations were not uniform. Two tribal members Mike Totemoff and Henry Milette were guilty of illegal hunting, but the State Supreme Court of Alaska convicted them under the wrong regulations. 5268. Skinner, Ramoa Ellen. Alaska Native Policy in the Twentieth Century. New York: Garland Publishing, 1997. Indian policy and congressional legislation applicable to the lower forty-eight states was not duplicated in Alaska. Alaska Natives experienced specific legislation including the Alaska Native Allotment Act, Alaska Reorganization Act, and came under P.L. 280 when Alaska entered the Union. In 1972, Congress attempted to settle Native claims with ANCSA, which fostered self-determination. 5269. Smith, Eric and Mary Kancewick. “The Tribal Status of Alaska Natives.” University of Colorado Law Review 61, no. 3 (1990): 455–516. Tribal status decisions in Alaska are different than those in the lower forty-eight states. Alaska Native villages are culturally different, Congress has never terminated their status and ANCSA continues to acknowledge their status as tribes.

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5270. Sommer, Geoffrey D. and Stephen D. Osborne. “‘Indian Country’ and the Nature and Scope of Tribal Self-Government in Alaska.” Alaska Law Review 22 (June 2004): 1–34. In 1998, the Supreme Court declared in Alaska v. Native Village of Venetie Tribal Government that ANCSA eliminated most of the Indian Country designation in Alaska and the tribes’ territorial jurisdiction. Creating rural justice and law and order through tribal communities would benefit both Native communities and state. 5271. Stoebner, Kerry. “Alaska Native Water Rights as Affected by the Alaska Native Claims Settlement Act.” American Indian Journal of the Institute for the Development of Indian Law 4 (March 1978): 2–26. Water is critical if tribal people are going to continue to subsist in Alaska. Now that the claims act has been implemented, all the water in Alaska needs to be quantified so Natives have enough to support their life ways. 5272. Summit, Ben. “The Alaska Native Claims Settlement Act (ANCSA): Friend or Foe in the Struggle to Recover Alaska Native Heritage.” Thomas M. Cooley Law Review 14, no. 3 (1997): 607–32. The act was intended to help Alaska Natives gain greater autonomy, but often stopped them from protecting lands. Despite these losses, the act did address some cultural preservation issues. 5273. Thériault, Sophie, Ghislain Otis, Gérad Duhaime, and Christopher Furgal. “The Legal Protection of Subsistence: A Prerequisite of Food Security for the Inuit of Alaska.” Alaska Law Review 22 (June 2004) 25–87. Native foods still contribute to Inuit physical and mental health, but dual federal–state management is detrimental to food security because subsistence hinges on a rural condition. Alaska has been reluctant to accommodate Inuit subsistence needs and has favored sport and commercial interests over Native interests. 5274. Thompson, Benjamin W. “The De Facto Terminating of Alaska Native Sovereignty: An Anomaly in an Era of Self-Determination.” American Indian Law Review 24, no. 2 (1999–2000): 421–54. During the last forty years of the twentieth century the federal government acted to terminate de facto Alaska Native sovereignty, while supporting selfdetermination for tribes in the lower forty eight states. The federal government acted against the Alaska communities through P.L. 280, ANCSA and the Supreme Court’s decision in Alaska v. Native Village of Venetie Tribal Government. The federal government extended state law and denied tribal jurisdiction over tribal lands and transferred title to state

corporations, and did so without constitutional authority. 5275. Thompson, Patricia. “Recognizing Sovereignty in Alaska Native Villages after the Passage of ANCSA.” Washington Law Review 68 (April 1993): 373–94. The act created villages not reservations, as governing units for local tribal communities. These villages are sovereign and should be designated as Indian Country. Congress should amend the act to state clearly the boundaries of Indian Country in Alaska. 5276. Thornton, Thomas F. “From Clan to Kwá·an to Corporation: The Continuing Complex Evolution of Tlingit Political Organization.” Wicazo Sa Review 17 (Spring 2002): 167–94. The IRA allowed the tribe to organize on the village level and ANCSA introduced the for-profit corporation organizational model. The clan has, however, remained a significant form of political organization and is being revitalized. 5277. Todderud, Eric. “The Alaskan Lands Act: A Delicate Balance between Conservation and Development.” Public Land Law Review 8 (1987): 143–63. ANCSA did not settle land disputes, so Congress enacted the Alaska National Interest Lands Conservation Act in 1980 to protect resources. Conflicts still continue over resource use, often involving tribal corporations and conservation and environmental interests. To help the Haida deal with a declining timber harvest, Congress passed the Haida Land Exchange Act in 1986 to exchange tribal lands on South Pass Island for properties at other locations. 5278. Tollefson, Kenneth. “Political Revitalization among the Tlingit.” Journal of Ethnic Studies 10 (Fall 1982): 57–78. In 1912, the Alaskan Tlingit organized the Alaskan Native Brotherhood, an organization that they used to begin to emphasize their political ethnicity. Communities with the most to fear experience the greatest political revitalization. 5279. Twitchell, Marlyn J. “Amoco Production Co. v. Village of Campbell: Federal Subsistence Protection Ends at Alaska’s Border.” Environmental Law 18 (Spring 1988): 635–64. Congress, in 1980, passed the Alaska Native Interest Lands Conservation Act and Title VIII requires that activities on public Alaskan lands will do as little harm as possible to subsistence activities. Three years later, Natives sued, citing that offshore drilling was influencing subsistence. The Supreme Court declared that the act did not include offshore activities

Alaska Natives

even though these offshore activities may harm subsistence. 5280. Verges, Scott C. and Thomas A. McClendon. “Inupiat Eskimos, Bowhead Whales, and Oil: Competing Federal Interests in the Beaufort Sea.” UCLA–Alaska Law Review 10 (Fall 1980): 1–31. The Outer Continental Shelf may be a rich oil field. Getting that oil under adverse conditions poses risks not only to the environment, but also “threatens to disrupt the precarious culture of the Alaskan natives.” A special interest group challenged one Outer Continental Shelf oil lease, illustrating the complex problems associated with drilling there. Courts may have to oversee this drilling. 5281. Walsh, John F. “Settling the Alaska Native Claims Settlement Act.” Stanford Law Review 38 (November 1985): 227–63. ANCSA’s provisions are set to expire and one issue of great concern is the continuation of the corporate form of government, since non-Natives can begin to gain control of stock. Corporate lands should be transferred to tribal governments. 5282. Wan, Andrea V. V. “The Indian Child Welfare Act and Iñupiat Customs: A Case Study of Conflicting Values, with Suggestions for Change.” Alaska Law Review 21 (June 2004): 43–75. P.L. 280 amendments place the adoption process in Alaska’s state courts. Native child adoption should be returned to tribal courts. 5283. Weiss, Lawrence D. and David C. Maas. “Primitive Accumulation, Reservations, and the Alaska Native Claims Settlement Act.” In To Show Heart: Native American Self-Determination and Federal Indian Policy, 1960–1975, edited by George Pierre. Castile, 189–211. Tucson: University of Arizona Press, 1998.

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The Marxist theory of primitive accumulation is applied to explain why Indian lands and resources have been appropriated. ANCSA serves as example. The capitalist economy is an impediment to tribal self-determination. 5284. Wood, Jeffery H. “Protecting Native Coastal Ecosystems: CZMA and Alaska’s Coastal Plain.” Natural Resources & Environment 19 (Summer 2004): 57–63. The Coastal Zone Management Act does not mention tribal communities, but from Florida to Alaska, tribal communities play an important role in coastal management. Should oil development take place in the Artic National Wildlife Refuge, companies will have to comply with CZMA’s regulations and Native communities will be involved. 5285. Work, Shannon D. “The Alaskan Native Claims Settlement Act: An Illusion in the Quest for Native SelfDetermination.” Oregon Law Review 66, no. 1 (1987): 195–218. Critical examination of the policy of selfdetermination reveals that it is an illusion. Uses ANCSA to examine continual paternalism and the revived policy of assimilation. 5286. Yamashiro, Jane M. “Alcohol Control in Alaska Eskimo Communities: Communal vs. ‘Official’ Law.” In Indigenous Law and the State, edited by Bradford W. Morse and Gordon R. Woodman, 441–65. Dordrecht, Holland: Foris Publications, 1988. Studies Native Alaska problems with alcohol and “demonstrates that the problems of alcohol management and control are the results of the unresponsiveness of governmental actions, laws and structures to community needs.”

Chapter 55 International Law, Borders, and Comparative Studies

5291. Arsanjani, Mahnoush H. “Environmental Rights and Indigenous Wrongs.” St. Thomas Law Review 9 (Fall 1996): 85–92. International law requires that minimum standards of environmental protection be maintained for tribal people.

5287. Anaya, S. James. Indigenous Peoples in International Law. Oxford: Oxford University Press, 1996. International law was once an instrument of colonialism but now aids indigenous survival and selfdetermination. The United Nations Charter instituted international law’s human rights program to promote this transformation.

5292. Austin, Megan S. “A Cultural Divided by the United States–Mexico Border: The Tohono O’odham Claim for Border Crossing Rights.” Arizona Journal of International and Comparative Law 8, no. 2 (1991): 97–116. The border separating Mexico and the U.S. cuts the Tohono O’odham off from their southern kin the O’odham. This denies them cultural exchange and the right to self-determination. They are seeking legislation to correct this wrong.

5288. Anaya, S. James. “Indigenous Rights Norms in Contemporary International Law.” Arizona Journal of International and Comparative Law 8, no. 2 (1991): 1–39. In 1989, the International Labour Organization passed Convention no. 169 that stressed the right of peoples to live and develop their own distinct communities. This resolution is an illustration of the world’s commitment to indigenous rights. 5289. Anaya, S. James. “The Rights of Indigenous Peoples and International Law in Historical and Contemporary Perspective.” In 1989 Harvard Indian Symposium, 193–225. Cambridge, MA: President and Fellows of Harvard College, 1990. Indigenous peoples have natural rights that colonial theorists recognized in the sixteenth century. Colonialism stopped this early movement, but it has regained momentum in the post-war twentieth century as international law shifts from state power to human rights.

5293. Barsh, Russel Lawrence. “An Advocate’s Guide to the Convention on Indigenous and Tribal Peoples.” Oklahoma City University Law Review 15 (Spring 1990): 209–53. In 1989, the International Labour Conference Convention No. 169 was issued concerning indigenous peoples living in independent nations. 5294. Barsh, Russel Lawrence. “Behind Land Claims: Rationalizing Dispossession in Anglo-American Law.” Law & Anthropology 1 (1986): 15–50. The U.S., Australia, and Canada have similar ideological approaches to tribal land rights that they employ to justify taking these lands. The theory is based on the racist idea that tribes have no land rights. These nations also pretend that tribal people have no laws.

5290. Andress, Judith and James E. Falkowski. “SelfDetermination: Indians and the United Nations—The Anomalous Status of America’s ‘Domestic Dependent Nations.’” American Indian Law Review 8, no. 1 (1980): 97–116. The nation’s trust relations with tribal Americans have not protected tribal interests and therefore the application of an international trust is a viable option. The United Nations has taken the first step to institute an international trust.

5295. Barsh, Russel Lawrence. “The Challenge of Indigenous Self-Determination.” University of Michigan Journal of Law Reform 26 (Winter 1993): 277–312. American Indians have the highest incomes and educational levels of any indigenous population in 567

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the world, yet they practice the greatest isolationism on the international indigenous stage. The current generation of tribal leaders is not willing to assume responsibility on the international stage. 5296. Barsh, Russel Lawrence. “The Ethnocidal Character of State and International Law.” Journal of Ethnic Studies 16 (Winter 1989): 1–30. New states are being created throughout the world at the expense of indigenous rights and self-determination. 5297. Barsh, Russel Lawrence. “Indigenous North America and Contemporary International Law.” Oregon Law Review 62, no. 1 (1983): 73–125. Overview of the last century beginning with the Berlin African Conference to the United Nations. Relative to U.S.–tribal relations, Barsh criticizes Felix Cohen and Nathan Margold for their partial acceptance of the plenary power doctrine.

rights. Australian and U.S. history, and United Nations human rights documents, provide examples of how this process can proceed. 5302. Brooks, Richard. “Law and Civil Society in the United States, Canada, Quebec, and the First Nations.” Arizona Journal of International and Comparative Law 15 (Winter 1998): 1–45. As Quebec seeks independent sovereign status, civil law theory provides a mechanism to advance relationships between these four divergent groups. 5303. “The Cayugas: United States v. Great Britain.” Indian Historian 2 (Spring 1969): 45–47. This court decision defines nationality and statehood based on international law. Canada could not maintain claims on behalf of the Cayugas living in Canada against New York for past tribal land sales.

5298. Barsh, Russel Lawrence. “Indigenous Peoples in the 1990s: From Object to Subject of International Law?” Harvard Human Rights Journal 7 (Spring 1994): 33–86. The international community now understands that indigenous peoples are autonomous groups and that recognition of this population is reaching new levels.

5304. Churchill, Ward. “The Tragedy and the Travesty: The Subversion of Indigenous Sovereignty in North America.” In Contemporary Native American Political Issues, edited by Troy Johnson, 17–71. Walnut Creek, CA: AltaMira Press, 1999. Historical survey of Indian law and policy in the U.S. and Canada emphasizing the poor record in respecting tribal sovereignty. The U.S. and Canada have also resisted efforts to secure indigenous rights through the international process.

5299. Berkey, Curtis G. “International Law and Domestic Courts: Enhancing Self-Determination for Indigenous Peoples.” Harvard Human Rights Journal 5 (Spring 1992): 65–94. Congress and the courts have hindered tribal nations from gaining greater self-determination. Tribal leaders should seek help from international human rights law.

5305. Clinebell, John Howard and Jim Thomson. “Sovereignty and Self-Determination: The Rights of Native Americans under International Law.” Buffalo Law Review 27 (Fall 1978): 669–714. Recently, the self-determination concept has been added to international law, thus permitting tribal nations to decide where they want to be placed along a continuum of political statuses.

5300. Berman, Howard R. “Perspectives on American Indian Sovereignty and International Law, 1600– 1776.” In Exiled in the Land of the Free: Democracy, Indian Nations, and the U.S. Constitution, edited by Oren Lyons, et al., 126–88. Santa Fe, NM: Clear Light Publishers, 1992. Tribal–non-Indian relations were originally of a “decidedly international character.” Europeans established a tradition, one that the U.S. inherited and is exemplified by treaty negotiations, of dealing with tribes in an international context.

5306. Clinton, Robert N. “The Rights of Indigenous Peoples as Collective Group Rights.” Arizona Law Review 32, no. 4 (1990): 739–47. Western philosophy focuses on the individual and that person’s relationship to the group. The opposite is true in many indigenous communities where the group is paramount. The Universal Declaration of Indigenous Rights challenges western models of sovereignty.

5301. Bravo, Karen E. “Balancing Indigenous Rights to Land and the Demands of Economic Development: Lessons from the United States and Australia.” Columbia Journal of Law and Social Problems 30 (Summer 1997): 529–86. Four concepts are introduced that developing nations such as Brazil should examine to protect tribal

5307. Cohen, Cynthia Price. “International Protection of the Rights of the Indigenous Child.” St. Thomas Law Review 7 (Summer 1997): 557–66. Indigenous people, including those in the U.S., should implement their treaties under international law and take control of their children. 5308. Coombe, Rosemary J. “The Recognition of Indigenous Peoples’ and Community Traditional Knowl-

International Law, Borders, and Comparative Studies

edge in International Law.” St. Thomas Law Review 14 (Winter 2001): 275–85. Examines the importance of protecting indigenous peoples’ knowledge and international documents such as the Convention on Biological Diversity that over 180 nations have signed.

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It is possible for every indigenous community to have self-governance, but the different national governments have feared this. The U.S. example is not always good, but it demonstrated under the IRA that indigenous self-rule is possible.

5309. Coulter, Robert T. “The Denial of Legal Remedies to Indian Nations under U.S. Law.” American Indian Journal of the Institute for the Development of Indian Law 3 (September 1977): 5–11. The political question doctrine, the Tee-Hit-Ton rule, plenary power doctrine, and tribal claims against the U.S. all preclude tribal nations from seeking redress in American courts. Tribal people may need to seek redress in international forums.

5314. Daes, Erica-Irene A. “Equality of Indigenous Peoples under the Auspices of the United Nations—Draft Declaration on Rights of Indigenous Peoples.” St. Thomas Law Review 7 (Summer 1997): 493–519. The United Nations document on indigenous rights recognizes that these people have “legal character and standing even in cases where they have agreed to be incorporated into existing states.” This document needs to be approved as a major step toward indigenous rights.

5310. Coulter, Robert T. “The Present and Future Status of American Indian Nations.” In Indian Self-Governance: Perspectives on the Political Status of Indian Nations in the United States of America, edited by Carol J. Minugh, Glenn T. Morris, and Rudolph C. Ryser, 37–48. Kenmore, WA: Center for World Indigenous Studies, 1989. Tribal political and legal status remains uncertain. International human rights law offers hope and will likely shape tribal futures.

5315. Dallam, H. Elizabeth. “The Growing Voice of Indigenous Peoples: Their Use of Storytelling and Rights Discourse to Transform Multilateral Development Bank Policies.” Arizona Journal of International and Comparative Law 8, no. 2 (1991): 117–48. By telling their stories, tribal communities have entered the consciousness of the World Bank. This has created alliances between different indigenous communities, but any alliance can have a long-term negative effect as well.

5311. Cross, John T. and Kristin M. Lomond. “The Civil Rights of the Aboriginal Peoples of the United States and Canada.” Arizona Journal of International and Comparative Law 10 (Fall 1993): 253–99. Canada and the U.S. have reached similar standards for treating tribal nations. Based on inconsistent policy decisions, both nations treat tribes as having sovereignty, like a state or province. On the other hand, both violate tribal sovereign rights to a greater extent than their constitutions would permit them to violate either a state’s or province’s rights.

5316. Duffié, Mary K. “Goals for Fourth World Peoples and Sovereignty Initiatives in the United States and New Zealand.” American Indian Culture and Research Journal 22, no. 1 (1998): 183–212. Notes the “striking similarities” between Maoris and Native Americans and their relationships with their respective “colonizing governments.” In both cases the colonizing process led to factionalism and fourth world status among indigenous people. Gaming is a positive sovereignty initiative.

5312. Crum, Steven. “Border Crossings/Crossing Borders: Native Americans and the Issue of Border Crossing.” In Indigenous Peoples and the Modern State, edited by Duane Champagne, Karen Jo Torjesen, and Susan Steiner, 24–32. Walnut Creek, CA: AltaMira Press, 2005. Discusses ways in which the U.S./Canada and U.S./Mexico borders have disrupted the lives of the Kumeyaay of southern California, Tohono O’odham of Arizona, Iroquois of New York, and Blackfeet of Montana. 5313. Daes, Erica-Irene A. “The Concepts of SelfDetermination and Autonomy of Indigenous Peoples in the Draft United Nations Declaration of the Rights of Indigenous People.” St. Thomas Law Review 14 (Winter 2001): 259–69.

5317. Duffié, Mary K. “The Treaty of Waitangi and Its Relationship to Contemporary American Indian Sovereignty Issues.” Wicazo Sa Review 14 (Spring 1999): 45–59. Parallels U.S. and New Zealand treaty and policy relationships with indigenous groups. Economic sovereignty is the key for communities to control their own fate. The Tainui of New Zealand serve as a positive model for American tribes pursuing selfdetermination. 5318. Farley, Christine Haight. “Protecting Folklore of Indigenous People: Is Intellectual Property the Answer?” Connecticut Law Review 30 (Fall 1997): 1–57. As intellectual property rights become global, new international challenges emerge, especially in Australia, Canada, and the U.S. The solution for those

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who want to protect their images from outside exploitation “may be beyond the scope of intellectual property.” 5319. Frickey, Philip P. “Domesticating Federal Indian Law.” Minnesota Law Review 81 (November 1996): 31–95. Examines the problems inherent in the development of the plenary doctrine that took tribal nations out of the international sphere and domesticated their relations with the federal government. Indian law must be internationalized based on the international premise of inherent tribal sovereignty. 5320. Frost, Lynda. “Human Rights Education Programs for Indigenous Peoples: Teaching Whose Human Rights?” St. Thomas Law Review 7 (Summer 1997): 699–722. Human rights organizations must continue doing their work but, in the process, they must stress indigenous communities’ values. 5321. Green, L. C. and Olive P. Dickason. The Law of Nations and the New World. Edmonton: University of Alberta Press, 1989. The 1982 Canadian Constitution confirms sovereign rights of First Nations. In this historical essay examining international law in North America, the early chapters are applicable to the U.S. and its colonial experience with sovereign nations. 5322. Gump, James O. “A Spirited Resistance: Sioux, Xhosa, and Maori Responses to Western Dominance, 1840–1920.” Pacific Historical Review 66 (February 1997): 21–52. These three cultures rejected forced acculturation by creating cultural revitalization efforts through which colonized people re-conceptualized themselves. The Lakota Ghost Dance serves as a primary example. Gump highlights federal efforts to repress Lakota culture through the prohibition of the Sun Dance and the Sioux Act of 1889, which allotted their lands. 5323. Gupta, Rupa. “Indigenous People and the International Community: Accommodating Claims through a Cooperative Legal Process.” New York University Law Review 74 (December 1999): 1741–85. To help northern Natives’ whaling hunts, the international community must disregard assimilation and overcome the western nations’ view that conservation is a struggle between tribal hunters and animal species. 5324. Hannum, Hurst. “Sovereignty and Its Relevance to Native Americans in the Twenty-First Century.” American Indian Law Review 23, no. 2 (1998–99): 487–95.

There is no international definition of sovereignty. By the time of the U.N.’s creation, self-determination of sovereign states was a means to end colonialism, but the extent of independence varied greatly. The 1998 International Labor Organization’s Convention No. 107 will not pass the U.N. nor will non-Indians accept tribal sovereignty in the U.S. 5325. Heinzman, Ruth H. “Resolving Conflicts between Native American Treaty Rights and U.S. Obligations to Foreign States.” Emory International Law Review 7 (Spring 1993): 133–61. The Supreme Court has decided that treaties with foreign nations can be modified to fulfill a tribal treaty obligation. International law sanctions selfdetermination. 5326. Henriksson, Markku. The Indian on Capitol Hill: Indian Legislation and the United States Congress, 1862–1907. Historical Study No. 25. Helsinki: Finnish Historical Society, 1988. A general study based on the author’s interest in internationalism and how it translates into American Indian legislation. 5327. Herz, Richard. “Legal Protection for Indigenous Cultures: Sacred Sites and Communal Rights.” Virginia Law Review 79 (April 1993): 691–716. Individual rights concepts found in the Constitution and international law are not adequate safeguards for communally based philosophies. American law still fosters the role of the individual and that poses threats to tribal sacred sites. 5328. Higgins, Frank B. “International Law Considerations of the American Indian Nations by the United States.” Arizona Law Review 3 (Summer 1961): 74–85. Tribal nations should practice the principles found in international law in their deliberations with other nations. The early American founders considered tribal nations as having international status, but this designation was later changed to national status without tribal knowledge or consent through case, statutory, and treaty law. 5329. Hookey, John. “The Gove Land Rights Case: A Judicial Dispensation for the Taking of Aboriginal Lands in Australia?” Federal Law Review 5, no. 1 (1972): 85–114. Draws on Johnson v. McIntosh, claiming that Marshall’s ruling on aboriginal title was rooted in common law and may be important to Australia’s legal disputes over aboriginal rights. 5330. Hughes, Sharman E. “Immigration/Importation: Exemption of Indian Tribes—Akins v. Saxbe.” American Indian Law Review 3, no. 2 (1975): 469–77.

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The court ruled that tribal rights under the Jay Treaty continue if the tribal members have property on both sides of the international border. In the absence of property, those who move do so with an aboriginal right.

dren?” Arizona Journal of International and Comparative Law 14 (Winter 1997): 255–84. The U.S. has passed ICWA to correct this problem, but should make some adjustments, while the Canadian government has no such legislation.

5331. Iverson, Peter. “Plains Indians and Australian Aborigines in the Twentieth Century.” In The Struggle for the Land: Indigenous Insight and Industrial Empire in the Semiarid World, edited by Paul A. Olson, 171–87. Lincoln: University of Nebraska Press, 1990. It was assumed that both groups would cease to exist as culturally distinct peoples but the twentieth century proved this assumption false.

5337. Luna-Firebaugh, Eileen M. “The Border Crossed Us: Border Crossing Issues of the Indigenous Peoples of the Americas.” Wicazo Sa Review 17 (Spring 2002): 159–81. Canadian, Mexican, and U.S. efforts to restrict tribal movement across their borders threaten tribal sovereignty. Multiple tribal approaches to dealing with such threats are considered. The traditional approach includes asserting rights by crossing the borders and putting individuals in legal jeopardy. The litigation approach has had mixed results, in part because the colonizing powers control the courts. The legislative approach can be highly effective but often requires considerable time and political compromise. International approaches are attractive, but the U.S. may not consider itself bound by international agreements.

5332. Jabaily, Annalisa. “Water Rites: A Comparative Study of the Dispossession of American Indians and Palestinians from Natural Resources.” Georgetown International Environmental Law Review 16, no. 2 (2004): 225–45. Compares Palestinians’ and tribal Americans’ precolonial water use. With the arrival of colonizers and their ideologies of disposition, both groups lost control of their water as both Israel and the U.S. wanted the resources for their settlers. 5333. Johnson, Ralph W. “Fragile Gains: Two Centuries of Canadian and United States Policy Toward Indians.” Washington Law Review 66 (July 1991): 643–718. Comparative study of laws, court rulings, and attitudes. Despite radical swings, the Canadian government pushed assimilation and did not pass an allotment act, but dealt with tribes in the Indian Act, a single law that set the tone for Canadian tribal relations. 5334. Landman, Lawrence B. “International Protection for American Indian Land Rights.” Boston University International Law Journal 5 (Spring 1987): 59–90. An effort to return land to tribal Americans has met with little success, forcing tribal leaders to seek aid from the international community. Working in conjunction with the United Nations working group would provide the necessary protection. 5335. Laxore, Danielle M. “Akwesasne’s Complex Legacy: Tracing Tribal Membership through History.” Native Americas 19 (Spring/Summer 2002): 32–35. The Peace of Paris in 1783 left Mohawk people on both sides of the border between Canada and the U.S. The Mohawks on the American side changed enrollment requirements often, while on the north side a child has to be born to two enrolled members. 5336. Lazarus, Keri B. “Adoptions of Native American and First Nations Children: Are the United States and Canada Recognizing the Best Interests of the Chil-

5338. McNeil, Kent. “Sovereignty on the Northern Plains: Indian, European, American and Canadian Claims.” Journal of the West 39 (Summer 2000): 10–18. Clarifies the philosophy behind and meaning of key court decisions that continue to define the extent of sovereignty among Native peoples in Canada and the U.S. Chief Justice Marshall made clear that rights of discovery dealt only with European vs. European land claims and did not negate the sovereignty of tribes living in the claimed territory. 5339. Mathurk, Mary E. “The Jay Treaty and Confrontation at St. Regis Boundary.” Indian Historian 3 (Winter 1970): 37–40. Discusses the 1794 Jay Treaty and the free border crossing that the St. Regis people declare they still have between Canada and the U.S. 5340. Meyers, Gary D. “Different Sides of the Same Coin: A Comparative View of Indian Hunting and Fishing Rights in the United States and Canada.” UCLA Journal of Environmental Law and Policy 10, no. 1 (1991): 67–121. In comparing tribal hunting and fishing rights in these two countries, there are similar rights. The difference is “the source, scope and extent of these rights.” 5341. Mickenburg, Neil H. “Aboriginal Rights in Canada and the United States.” Osgoode Hall Law Journal 9, no. 1 (August 1971): 119–54. Answers to the question of aboriginal title in the U.S. are better developed legislatively and judicially

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than in Canada where the Proclamation of 1763 is called the “Charter of Indian Rights.” 5342. Miller, Bruce Granville. Invisible Indigenes: The Politics of Nonrecognition. Lincoln: University of Nebraska Press, 2003. Compares international non-recognition of indigenous peoples with the processes through which unrecognized peoples can in some cases gain acknowledgement. The U.S. process for recognizing tribes is criticized, despite changes made in the 1970s and 1994, as is Canada’s. 5343. Morgan, Edward M. “Self-Government and the Constitution: A Comparative Look at Native Canadians and American Indians.” American Indian Law Review 12, no. 1 (1984): 39–56. Ratification of the 1982 Canadian Constitution has created an opportunity for the judiciary to review the First Nation’s claims. There will be problems in Canada that are different than the American tribal issues. U.S. tribes are self-governing entities and have gained access to the U.S. Constitution, while in Canada the tribes are in limbo. 5344. Morris, Glenn T. “International Law and Politics: Toward a Right to Self-Determination for Indigenous Peoples.” In The State of Native America: Genocide, Colonization, and Resistance, edited by M. Annette Jaimes, 55–86. Boston, MA: South End Press, 1992. International law is a means to achieve selfdetermination for indigenous peoples who have been subjected to colonizers’ laws. American Indian tribal treaty rights and land-bases make it more likely that international/decolonization standards can successfully be applied in the U.S. 5345. Morse, Bradford W. Indian Tribal Courts in the United States: A Model for Canada? Native Law Center: University of Saskatchewan, 1980. A short examination of the history of tribal court development in the U.S. reveals that the American tribal court models may be feasible in Canada for the First Nations. 5346. Morse, Bradford W. “Common Roots but Modern Divergences: Aboriginal Policies in Canada and the United States.” St. Thomas Law Review 10 (Fall 1997): 115–48. Canada, trying to sort through its tribal conflicts, has relied on the American court’s decision in Worcester to define tribal standing. The U.S. accepts the concept of aboriginal self-government, but the courts created a non-constitutional plenary power doctrine to intrude on tribal sovereignty and diminish tribal authority.

5347. Nickels, Bryan. “Native American Free Passage Rights under the 1794 Jay Treaty: Survival under United States Statutory Law and Canadian Common Law.” Boston College International & Comparative Law Review 24 (Spring 2001): 313–39. After Jay’s Treaty, tribal groups on both sides of the Canadian–U.S. boundary have had free passage. The Canadians have taken a strict common law stance and the U.S. has assumed a more liberal judicial interpretation following treaty language. The Canadians need to rethink their policy. 5348. Nunes, Keith D. “‘We Can Do . . . Better’: Rights of Singular Peoples and the United Nations Draft Declaration on the ‘Rights of Indigenous People.’” St. Thomas Law Review 7 (Summer 1997): 521–55. Critical of the United Nation’s declaration for not going far enough to protect indigenous rights. 5349. O’Brien, Sharon. “Federal Indian Policies and the International Protection of Human Rights.” In American Indian Policy in the Twentieth Century, edited by Vine Deloria Jr., 35–61. Norman: University of Oklahoma Press, 1985. The federal government has a “mixed” record in promoting self-determination, acknowledging Indian property rights, and accepting cultural freedoms. The plenary doctrine must be repudiated. 5350. O’Brien, Sharon. “The Medicine Line: A Border Dividing Tribal Sovereignty, Economies and Families.” Fordham Law Review 53 (November 1984): 315–50. Canada and the U.S. recognized aboriginal rights when signing the Jay Treaty and the Treaty of Ghent. Both protect tribal rights of crossing. With the passage of time, Canadian and U.S. officials have made a rigid border between the nations, creating hardships for Mohawks and members of the Blackfeet Confederacy. 5351. Ortiz, Roxanne Dunbar. “The Fourth World and Indigenism: Politics of Isolation and Alternation.” Journal of Ethnic Studies 12 (Spring 1984): 79–105. John Collier supported “ethnic particularism” as it emerged in the Inter-American Indigenous Institute. Ortiz discusses Western Hemisphere pan-Indianism and related conflicts, primarily with the U.S. 5352. Ortiz, Roxanne Dunbar. Indians of the Americas: Human Rights and Self-Determination. New York: Praeger, 1984. The U.S. was formed for the purpose of capitalist accumulation, and Indian self-determination is best pursued by relying on United Nations protections and international human rights. Case studies are provided from the U.S. (Sioux and Navajo) and

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Nicaragua. The Indian movement’s primary goals in the U.S. are land and self-determination.

Maori experience reveals the importance of sharing indigenous legal theories that will benefit all.

5353. Ortiz, Roxanne Dunbar. “Protection of American Indian Territories in the United States.” In Irredeemable America: The Indians’ Estate and Land Claims, edited by Imre Sutton, 247–66. Albuquerque: University of New Mexico Press, 1985. The 1970s brought tribal leaders into discussions with indigenous peoples throughout the world. Their main concern was to correct past wrongs, but the U.S. claimed that domestic law was better suited to settling past land claims. Some tribal leaders claim that an international forum would be better.

5358. Priestley, L. J. “Communal Native Title and the Common Law: Further Thoughts on the Gove Land Rights Case.” Federal Law Review 6, no. 1 (1974): 150–73. Priestly disagrees with John Hookey’s conclusion about Marshall’s ruling in Johnson v. McIntosh, arguing that the idea of Indian title derived from Virginia colonial law and therefore has no application to Australia.

5354. Osburn, Richard. “Problems and Solutions Regarding Indigenous Peoples Split by International Borders.” American Indian Law Review 24, no. 2 (1999–2000): 471–85. The immigration law situation affecting Native people is more settled on the U.S.–Canada border than it is on the U.S.–Mexico border. Tribes seeking border-crossing exemptions should petition Congress as did the Kickapoo. Tribes do not need to rely on international action, and the U.S. would resist international pressure if such actions were taken. 5355. Paul, Amita. Towards a Declaration for the Protection of the Intellectual and Cultural Property Rights of Native Peoples: An Attempt at a Framework for a Model Tribal Law. Harvard Project on American Indian Economic Development, John F. Kennedy School of Government, Cambridge, MA: Harvard University, 1998. Ideally, tribal and national governments would approve the declaration, and use international agencies for implementation. This model is a step in preserving the right to cultural heritage of tribal indigenous peoples worldwide. 5356. Poirier, Robert and David Ostergren. “Evicting People from Nature: Indigenous Land Rights and National Parks in Australia, Russia, and the United States.” Natural Resources Journal 42 (Spring 2002): 331–51. Examines the world’s adoption of the Yellowstone National Park’s model for removing people from their landscape to create a pristine environment. The U.S. was the leader in this movement, but the NPS has made some minor concessions. 5357. Potaka, Tama William. “Maori Experiences and Federal Indian Law.” Federal Lawyer 51 (March/April 2004): 36–42. U.S. federal Indian law does not exist in a vacuum, but has ties to international indigenous law. The

5359. Quesenberry, Stephen V. “Recent United Nations Initiatives Concerning the Rights of Indigenous Peoples.” American Indian Culture and Research Journal 21, no. 3 (1997): 231–60. Encourages Native communities to look to international law, and the U.N. in particular, as a means to protect their indigenous rights in the U.S. 5360. Quinn, Miriam Latore. “Protection for Indigenous Knowledge: An International Law Analysis.” St. Thomas Law Review 14 (Winter 2001): 287–313. To protect indigenous knowledge and practices, a new patent system would permit these communities to protect their intellectual property rights. 5361. Resiman, W. Michael. “International Law and the Inner Worlds of Others.” St. Thomas Law Review 9 (Fall 1996): 25–35. Cultural relativists who study international human rights are concerned with homogenizing indigenous cultural values instead of accepting people as distinct groups. 5362. Riley, Angela R. “Indigenous Peoples and the Promise of Globalization: An Essay on Rights and Responsibilities.” Kansas Journal of Law & Public Policy 14 (Fall 2004): 155–67. Argues for the necessity of a cross-cultural discussion of intellectual property rights in an international setting. This would be the responsible course of action to protect tribal rights in the era of globalization. 5363. Rivera, DeAnna Marie. “Taíno Sacred Sites: An International Comparative Analysis for a Domestic Solution.” Arizona Journal of International and Comparative Law 20 (Summer 2003): 443–89. The Taino in Puerto Rico have a right to use Caguana Park and co-manage it with the National Park Service. Their best tactic is to continue to use their grassroots organization to push for their rights to access. 5364. Rosen, Lawrence. “Law and Indigenous Peoples.” Law & Social Inquiry 17 (Spring 1992): 363–71.

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A review essay of three books by Hurst Hannum, Robert A. Williams, and Alison Dundes Renteln, all dealing with indigenous rights and representing attempts to see the issues from a tribal point of view. 5365. Ross, Anne and Kathleen Pickering. “The Politics of Reintegrating Australian Aboriginal and American Indian Indigenous Knowledge into Resource Management: The Dynamics of Resource Appropriation and Cultural Revival.” Human Ecology 30 (June 2002): 187–214. There is a resource deletion crisis in the U.S. and Australia and indigenous leaders in both countries demand a greater voice in pending resource decisions. Tribal leaders’ resource demands are linked to a larger self-determination effort. 5366. Ryan, Joe. “Indian Nations Compared to Other Nations.” American Indian Journal of the Institute for the Development of Indian Law 3 (August 1977): 2–13. The Decolonization Committee of the United Nations rejected the practice of placing tribal nations under colonial regimes. The committee says colonizers should apply the modern laws of self-determination to tribal nations. 5367. Sager, Larry. “Rediscovering America: Recognizing the Sovereignty of Native American Indian Nations.” University of Detroit Mercy Law Review 76 (Spring 1999): 745–87. Tribal issues need to be heard in an alternative international forum, with less bias, and international law should be applied to resurrect tribal sovereignty. 5368. Saito, Natsu Taylor. “Asserting Plenary Power over the ‘Other’: Indians, Immigrants, Colonial Subjects, and Why U.S. Jurisprudence Needs to Incorporate International Law.” Yale Law & Policy Review 20, no. 2 (2002): 427–80. Examines the origins of congressional plenary power, not only over tribal America, but also over other groups within the nation. The continual exercise of plenary power destroys both nations and people. 5369. St. Germain, Jill. Indian Treaty-Making Policy in the United States and Canada, 1867–1877. Lincoln: University of Nebraska Press, 2001. Relies on Indian treaties and treaty making between 1867 and 1877, to compare U.S. and Canadian Indian policies and question claims that Canada’s policy was more efficient and humane. In fact, Canadian policy in the 1870s is better described as “cheap, indifferent, and reactive.”

5370. Smith, Marian L. “The INS and the Singular Status of North American Indians.” American Indian Culture and Research Journal 21, no. 1 (1997): 131–54. Discusses the immigration status of American Indians traveling between Canada and the U.S. The Immigration Act of 1924 conflicted with Native Jay Treaty rights by inhibiting the free entry of Canadian born Native Americans to the U.S. Disputes over this brought into question the definitions of Indian race and citizenship. 5371. Stomski, Laura. “The Development of Minimum Standards for the Protection and Promotion of Rights for Indigenous Peoples.” American Indian Law Review 16, no. 2 (1991): 575–96. In 1982, the United Nations developed a working group to provide guidelines for the protection of indigenous peoples and their rights. 5372. Suagee, Dean B. “Human Rights of Indigenous Peoples: Will the United States Rise to the Occasion?” American Indian Law Review 21, no. 2 (1997): 365–90. The Department of State met with tribal leaders in1996 to discuss the U.N. draft of the Declaration on the Rights of Indigenous Peoples. 5373. Suagee, Dean B. “Self-Determination for Indigenous Peoples at the Dawn of the Solar Age.” University of Michigan Journal of Reform 25 (Summer 1992): 671–749. International human rights law for indigenous peoples is important and developing nations recognize these rights. Tribal leaders in the U.S. have a responsibility to press this agenda forward. 5374. Swepston, Lee. “A New Step in the International Law on Indigenous and Tribal Peoples: ILO Convention No. 169 of 1989.” Oklahoma City University Law Review 15 (Fall 1990): 677–714. Supports Convention No. 169 as an important step for indigenous people despite the compromises that were made to gain passage. 5375. Thompson, Sherry M. “The Return of the Buffalo: An Historical Survey of Reservation Gaming in the United States and Canada.” Arizona Journal of International and Comparative Law 11 (Fall 1994): 521–55. Tribes in the U.S. have begun to create large casinos for revenue, while in Canada, the central government has turned tribal gaming over to the provinces, and that has prohibited the northern tribes from reaping any financial benefits. The Canadian government must change its laws. 5376. Torgerson, James E. “Indians against Immigrants— Old Rivals, New Rules: A Brief Review and Com-

International Law, Borders, and Comparative Studies

parison of Indian Law in the Contiguous United States, Alaska, and Canada.” American Indian Law Review 14, no. 1 (1986): 57–103. The common themes are that that the U.S. and Canada wanted lands and resources, but in the U.S. there was a group of reformers who also focused on assimilating Indians. It is important for all tribal groups to maintain their self-rule and the greatest challenges are faced in Alaska. 5377. Trink, Richard. “Lakota Efforts in the International Arena.” Wicazo Sa Review 4 (Spring 1988): 39–47. The Lakotas’ push to have their land returned through U.S. courts and Congress failed. International law also provided no remedy. It is hoped that their efforts will change international law in the future. 5378. Vernon, Howard A. “The Cayuga Claims: A Background Study.” American Indian Culture and Research Journal 4, no. 3 (1980): 21–35. A series of treaties and negotiations took place between Cayugas and the state of New York in the late eighteenth and early nineteenth centuries. Cayugas living in Canada denied the legality of treaties, made without their approval, affecting their claims and annuities promised to them in earlier treaties with New York. Canadian Cayuga attempts in the late 1800s to sue and lobby the state to obtain back annuities failed, leading them to request aid from the British government. By agreement between the British and U.S. governments, a Tribunal of Arbitration was established that finally ended the dispute in 1926, awarding the Canadian Cayugas $100,000. Disputes between the American Cayugas, who had been dispossessed of their lands, and New York continued. 5379. Vest, Lindsay Loudon. “Cross-Border Judgments and the Public Policy Exception: Solving the Foreign Judgment Quandary by Way of Tribal Courts.” University of Pennsylvania Law Review 153 (December 2004): 797–824. As the world’s nations sign more agreements, such as the Brussels Convention, the U.S. should begin to reexamine its relationship with tribal courts. 5380. Wells, Matthew D. “Sparrow and Lone Wolf: Honoring Tribal Rights in Canada and the United States.” Washington Law Review 66 (October 1991): 1119–37. Describes contemporary Canadian and U.S. relations with tribal communities and recommends that the U.S. enact legislation protecting the “core tribal rights” as the Canadians have done. 5381. Wendelowski, Karyn I. “A Matter of Trust: Federal Environmental Responsibilities to Native Americans

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under Customary International Law.” American Indian Law Review 20, no. 2 (1995–96): 423–58. Under international law, tribal Americans can present claims against the U.S. for violating fiduciary responsibilities at the Black Mesa strip mine in Arizona. Using international law in American courts will initiate “a new cause of action” by tribal people against the U.S. 5382. Weston, Rose. “Facing the Past, Facing the Future: Applying the Truth Commission Model to the Historic Treatment of Native American Tribes in the United States.” Arizona Journal of International and Comparative Law 18 (Fall 2001): 1017–58. Governments create truth commissions to investigate all sides of an issue. The commissions seek justice for victims, reconciliation plans, and discourage unethical behavior. The U.S. should create a truth commission to determine the historical truth of tribal–American relations. 5383. Wiessner, Siegfried. “American Indian Treaties and Modern International Law.” St. Thomas Law Review 7 (Summer 1997): 567–602. A nation that keeps its word is one of the necessary foundations of modern international law. Since treaties between tribal nations and the U.S. are international treaties, “international law prescriptions regarding validity and meaning would have to be applied.” 5384. Wiessner, Siegfried. “Defending Indigenous Peoples’ Heritage.” St. Thomas Law Review 14 (Winter 2001): 271–74. Discusses the resurgence of indigenous peoples across the world and the reasons for their successes. 5385. Wiessner, Siegfried. “Rights and Status of Indigenous Peoples: A Global Comparative and International Legal Analysis.” Harvard Human Rights Journal 12 (Spring 1999): 57–128. Reviews the worldwide conquest of indigenous peoples and attempts to understand their current political status under an outsider’s control. Also examines the international movements and trends and indigenous peoples’ efforts to determine their own destinies. 5386. William, Robert A., Jr. “Encounters on the Frontiers of International Human Rights Law: Redefining the Terms of Indigenous Peoples’ Survival in the World.” Duke Law Journal, no. 4 (September 1990): 660–704. Some examples relate to tribal sovereignty in the U.S. 5387. Wilmer, Franke. The Indigenous Voice in World Politics. Thousand Oaks, CA: Sage Publications, 1993.

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Calls for the international community to respect indigenous self-determination and equality in the world community, and includes a chapter surveying the history of U.S. policies toward Native Americans. 5388. Wishart, David. “Belated Justice? The Indian Claims Commission and the Waitangi Tribunal.” American Indian Culture and Research Journal 25, no. 1 (2001): 81–111. Compares and contrasts the U.S. Indian Claims Commission to New Zealand’s Watiangi Tribunal that began dealing with Maori claims in 1975. The

Tribunal’s efforts to resolve indigenous claims were “more genuine” than its American counterparts, which had made “no real atonement for historical injustices.” 5389. Wolfe, Mary Ellen. “The Milk River: Deferred Water Policy Transitions in an International Waterway.” Natural Resources Journal 32 (Winter 1992): 55–76. Examines the Milk River and the St. Mary River of Montana in an international setting, a tribal setting, and a state setting. The origins of this problem of developing an international water policy on these two rivers began before 1910.

Chapter 56 Special Topics

Introduction to the New Directions in Native American Law symposium, arguing that some “of the best scholarship on Native Americans and law draws upon insight from the social sciences and it continues to move in the direction of interdisciplinary scholarship.”

CHEVRON DOCTRINE 5390. Hall, Scott C. “The Indian Law Cannons of Construction v. the Chevron Doctrine: Congressional Intent and the Unambiguous Answer to the Ambiguous Problem.” Connecticut Law Review 37 (Winter 2005): 495–567. The Supreme Court, in Chevron v. Natural Res. Def. Council (1984), decided that in the absence of a congressionally expressed statement, a federal agency’s interpretation of congressional intent holds. Currently, appeals courts are taking different views, some upholding tribal cannons of construction over agency decisions and others not. Hall examined four cases to determine that Chevron does not follow the cannons of federal Indian law construction.

5394. Clinton, Robert N. “The Curse of Relevance: An Essay on the Relationship of Historical Research to Federal Indian Litigation.” Arizona Law Review 28, no. 1 (1986): 29–46. As scholars write, they must negotiate the problems of relevance and accessibility. Judges and lawyers must be aware of the importance of tribal legal history so all can understand the demands that the past makes on contemporary tribal communities.

5391. Heinecke, Peter S. “Chevron and the Canon Favoring Indians.” University of Chicago Law Review 60 (Summer/Fall 1993): 1015–42. One tenet of federal Indian law is that ambiguities are resolved in favor of tribes, but after Chevron, a key source of tribal protection is diminished.

5395. Dworkin, Judith M. “William C. Canby Jr.’s Unique Contributions to the Development of Federal Indian Law.” Arizona State Law Journal 33 (Spring 2001): 34–40. Never an apologist for the tribal past, William C. Canby’s American Indian Law in a Nutshell has entered its third printing. This was a major contribution by Canby to the study of federal Indian law because he outlined the themes and presented them in concise manner.

5392. Ide, Britt E. “To Defer or Not to Defer? The Circuit Split over Chevron Deference to Agency Interpretations: Southern Ute Indian Tribe v. Amoco Production Co.” Utah Law Review, no. 3 (1998): 397–419. The Supreme Court’s Chevron decision is farreaching and often cited, but a split has developed between the different circuits and even within the courts. Some circuit courts err on the side of legislative rules and others follow agency rule making.

5396. Frickey, Philip P. “Canby: American Indian Law in a Nutshell.” Michigan Law Review 87 (May 1989): 1199–1215. Criticizes Canby for his uncritical discussion of the Tee-Hit-Ton case. A book should be published that is “probing, written largely for law students and professors” rather than Canby’s “treatise rationalizing the law of insular colonial administration.”

COMMENTARIES ON SELECTED PUBLISHED INDIAN LAW SOURCES

5397. Funke, Karl A. and Kirke Kickingbird. “The Role of Native Americans in American Legal History.” Law Library Journal 69 (November 1976): 474–93.

5393. Brophy, Alfred J. “Foreword.” Oklahoma City University Law Review 23 (Spring and Summer 1998): 1–12. 577

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Problem areas still exist in researching and understanding federal Indian law. Conducting treaty research, understanding tribal jurisdiction, and the recent 1973 American Indian Policy Review Commission may help reduce these problems. 5398. Laurence, Robert. “Indian-Law Scholarship and Tribal Survival: A Short Essay, Prompted by a Long Footnote.” American Indian Law Review 27, no. 2 (2002–2003): 503–14. A personal response to Robert N. Clinton’s published assertion that “there is no federal supremacy clause for Indian tribes” and to a footnote therein. Laurence reflects on relationships between scholars and tribal decision makers and argues that “we have more influence over tribal decision makers when we are talking to them than when we write in our scholarly journals.” 5399. Lawson, Paul E. “When States’ Attorneys General Write Books on Native American Law: A Case Study of Spaeth’s American Indian Law Deskbook.” American Indian Quarterly 19 (Spring 1995): 229–36. Criticizes a reference book assembled by the Conference of Western Attorneys General in 1993 as defending the status quo because it fails to show the American legal system’s effects on Native Americans.

DAM-BUILDING, RECLAMATION, AND FLOODED LANDS 5400. Martin, Jill E. “The Miner’s Canary: Felix S. Cohen’s Philosophy of Indian Rights.” American Indian Law Review 23, no. 1 (1998–99): 165–79. As a philosopher and lawyer, Cohen was an individual who was perfect for the task of writing a handbook on federal Indian law. Cohen’s philosophical writings on tribal rights were a means for him to give back to society. 5401. Martin, Jill E. “‘A Year and a Spring of My Existence’: Felix S. Cohen and the Handbook of Federal Indian Law.” Western Legal History 8 (Winter/Fall 1995): 35–60. Describes Cohen’s writing of the famous handbook. 5402. Porter, Robert B. “Cleaning up the Colonizer’s Mess: An Important Role for Legal Scholarship about the Indigenous Nations.” University of Kansas Law Review 50 (April 2002): 431–36. It is important for legal scholarship to redress the effects of American colonialism on Indians. 5403. Singer, Joseph W. “Remembering What Hurts Us Most: A Critique of the American Indian Law Desk-

book.” New Mexico Law Review 24 (Spring 1994): 315–29. Reviews the book, giving it good marks for being current, short, clear, and concise, but negative marks for being a subjective work because it argues for increased state authority and reduced Indian authority on reservations. Dam-building, Reclamation, and Flooded Lands: 5404. Bilharz, Joy A. The Allegany Senecas and Kinzua Dam: Forced Relocation through Two Generations. Lincoln: University of Nebraska Press, 1998. Kinzua Dam was constructed from 1959 to 1964, and flooded one-third of the Allegany Reservation. Tracing thirty years of dislocation, the story discloses that previous relocation discussions underestimated the dam’s effect on the tribal people. 5405. Coffeen, William R. “The Effects of the Central Arizona Project on the Fort McDowell Indian Community.” Ethnohistory 19 (Autumn 1972): 345–77. The building of a dam on the Fort McDowell Reservation will inundate a large portion of the reservation and reduce the usable land available to the Yavapai. The Yavapai are excluded from the decision-making process. 5406. Espeland, Wendy. “Legally Mediated Identity: The National Environmental Policy Act and Bureaucratic Construction of Interests.” Law & Society Review 28 (1994): 1149–79. In 1981, Yavapais staged a protest march opposing a proposed dam, which threatened to displace them. NEPA required the federal government to consider the environmental and social consequences of projects such as this proposed dam. 5407. Harper, Allan G. “Fort Berthold Indians Hope for Justice.” The American Indian 5, no. 1 (1949): 22–30. The construction of Fort Garrison Dam brought Congress into negotiations with the Fort Berthold community to reach a settlement for the flooding of their lands. A three-part contract was signed with the Corp of Engineers and the tribe providing for removing possessions, removing graves, and the land value. 5408. Lawson, Michael. Damned Indians: The Pick-Sloan Plan and the Missouri River Sioux, 1944–1980. Norman: University of Oklahoma Press, 1982. The 1944 project in the Missouri River Basin “caused more damage to Indian land than any other public works project in America.” The Sioux on five reservations were forced to relinquish lands in violation of treaty rights, and without adequate compensation, and the project ignored their water rights.

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5409. Lazarus, Arthur, Jr.. “Indian Rights under the Federal Power Act.” Federal Bar Journal 20 (Summer 1960): 217–22. Originally titled the Federal Water Power Act of 1920, amended in 1935, this legislation provides Indian people with the same “rights and privileges as other landowners and citizens” regarding dam construction. 5410. Macgregor, Gordon. “Attitudes of the Fort Berthold Indians Regarding Removal from the Garrison Reservoir Site and Future Administration of Their Reservation.” North Dakota History 16 (January 1949): 31–60. A dam, planned by Congress in 1944, threatened to flood 153,000 acres of the reservation. It threatened the economy and was part of a long history of reductions to the reservation land base. The federal government must still play a key role in fostering economic development and preparing tribal peoples for self-sufficiency. 5411. Meyer, Roy W. “Fort Berthold and the Garrison Dam.” North Dakota History 35 (Summer and Fall 1968): 217–355. Studies the dam’s impact on reservation residents. The federal government’s actions were “high handed” and made without regard for tribal interests. Despite ambiguous signs of recovery, the dam’s effects have been “almost wholly bad.” 5412. Oberly, James W. “Tribal Sovereignty and Natural Resources: The Lac Courte Oreilles Experiences.” In Buried Roots and Indestructible Seeds: The Survival of American Indian Life in Story, History, and Spirit, edited by Mark A. Lindquist and Martin Zanger, 127–53. Madison: University of Wisconsin Press, 1993. Completed in 1923, Winter Dam created conflicts between Wisconsin’s residents for decades. Like many dam projects, the structure flooded burial sites and Chippewa residences. Eventually, the tribe regained control of the dam site through the Chippewa Flowage Project. 5413. Pearson, Byron E. “‘We Have Almost Forgotten How to Hope’: The Hualapai, the Navajo and the Fight for the Central Arizona Project, 1944–1968.” Western Historical Quarterly 31 (Autumn 2000): 297–316. Examines Native American involvement in the debates over the creation of the Grand Canyon dams and Central Arizona Project. Battles developed between the two tribes and the state of Arizona over rights to proposed dam sites on tribal land, based in part on the rights given to states by the Federal Power Acts of 1920 and 1935. But the Hualapais also won considerable concessions.

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5414. Swenson, Chad W. “South Dakota v. Bourland: Drowning Cheyenne River Sioux Tribal Sovereignty in a Flood of Broken Promises.” South Dakota Law Review 39, no. 1 (1994): 181–203. When Congress passed the 1944 Flood Control Act, the tribe continued to claim jurisdiction over non-members’ hunting and fishing on the flooded lands that were still part of the 1868 Fort Laramie Treaty boundaries. The Supreme Court decided that under a misapplication of the Montana test, the tribe lacked authority over non-members on these lands. 5415. Townley, John M. “Reclamation and the Red Man.” Indian Historian 11 (Winter 1979): 21–28. The Truckee-Carson Project affected the Pyramid Lake and Paiute tribes. Their allotments were lost due to the project undertaken by the Bureau of Reclamation. They tried living with the newcomers who worked on the project, but soon fell into a life of despair on the reservation. 5416. Weist, Katherine. “For the Public Good: Native Americans, Hydroelectric Dams, and the Iron Triangle.” In Trusteeship in Change: Toward Tribal Autonomy in Resource Management, edited by Richmond L. Clow and Imre Sutton, 55–72. Boulder: University Press of Colorado, 2001. Traces the modern history of tribal land and resource losses due to dam construction, focusing on the loss of tribal resources, tribal protests, and the conservation justification for construction. The argument for dam building was that it served the greater public good and allowed for the efficient use of water resources. INDIAN COMMERCE CLAUSE AND DORMANT INDIAN COMMERCE CLAUSE 5417. Agnew, Richard D. “The Dormant Indian Commerce Clause: Up in Smoke?” American Indian Law Review 25, no. 2 (2000–2001): 353–80. Provides a history of the Commerce Clause and the Dormant Commerce Clause (which allows court interpretation in absence of explicit Congressional guidelines) and their application to tribes. Justice Rehnquist’s footnote to the court’s Moe v. Confederated Salish & Kootenai Tribes of the Flathead Reservation, a case upholding the state’s right to apply a cigarette tax on tribal sales to non-members, had prevented tribes from winning court cases on the basis of the Indian Commerce Clause. The U.S. Supreme Court’s decision on Indian gaming in Seminole Tribe v. Florida may revive the Dormant Indian Commerce Clause. 5418. Feldman, Stephen M. “Preemption and the Dormant Commerce Clause: Implications for Federal Indian Law.” Oregon Law Review 64, no. 4 (1986): 667–700.

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When deciding on the legality of state encroachment on tribal lands, the Supreme Court should use the Commerce Clause as its authority, while preemption issues should be examined by the Supremacy Clause. Instead of applying two separate tests for two legal issues, the courts have merged them into one balancing test, weighing federal interests against state interests.

INDIAN COUNTRY AS A LEGAL CONCEPT 5419. Kickingbird, Kirke. “‘Way Down Yonder in the Indian Nations, Rode My Pony Cross the Reservation!’ from ‘Oklahoma Hills’ by Woodie Guthrie.” Tulsa Law Journal 29 (Winter 1993): 303–43. Examines the complex definition of Indian Country in Oklahoma in light of the Supreme Court decision, Citizen Band of Potawatomi. 5420. “The Meaning and Implications of ‘Indian Country’: State v. Dana.” Maine Law Review 31, no. 1 (1979): 171–211. Maine officials believe that no Indian Country exists within its borders, but the state must prove that it has criminal jurisdiction over the tribe by demonstrating that the tribe lost its Indian title before 1790 or was not a tribe after 1790. 5421. Sutton, Imre. “The Political Geography of Indian Country: An Introduction.” American Indian Culture and Research Journal 15, no. 2 (1991): 1–2. Reviews the legal and geographical separation between Indian Country and other lands. Early in our nation’s history, lines on maps isolated Indian Country from colonies and later states. With the passage of time, the lines separating Indian Country from nonIndian lands have become less distinct. 5422. Sutton, Imre. “Preface to Indian Country: Geography and Law.” American Indian Culture and Research Journal 15, no. 2 (1991): 3–35. Compares the geographical dimensions of Indian Country with the legal boundaries of Indian Country. Sutton proposes that greater use of political geography instead of the more common legal application of Indian Country would explain historic and contemporary settlement patterns, economic conditions, and spatial human arrangements, as well as provide an explanation for complex inter-governmental interactions.

INHERITANCE, PROBATE, AND WILLS 5423. Barsh, Russel Lawrence. “Navajo Tribal Courts, Property and Probate Law, 1940–1972.” Law & Anthropology 6 (1991): 169–95.

For centuries, Navajos have passed grazing rights through the female. Nearly forty years ago, the BIA became involved in issuing grazing permits that had the effect of breaking down the matrilineal system. Then the Navajo courts became more involved in the process of allocating resources after death and gave property to the first heir. 5424. Beaglehole, Ernest. “Ownership and Inheritance in an American Indian Tribe.” Iowa Law Review 20 (January 1935): 304–16. Examines Hopi property inheritance laws. Some rules are rigid and some are flexible, revealing change within the community. 5425. Bonnin, Gertrude, Charles H. Fabens, and Matthew K. Sniffen. Oklahoma’s Poor Rich Indians: An Orgy of Graft and Exploitation of the Five Civilized Tribes—Legalized Robbery. Philadelphia, PA: Office of the Indian Rights Association, 1924. Congress’s decision in 1908 to transfer jurisdiction over Indian probate in Eastern Oklahoma from the Interior Department to the county courts has led to ruthless robbery, graft, and exploitation of Indian women and children. 5426. Davidson, Paula A. “Annual Survey of Oklahoma Law. (Restricted Indian Property—Restricted Inheritance).” Oklahoma City University Law Review 6 (Fall 1981): 850–54. This section of the law survey discusses the Osage case in re Estate of Bigheart. The court ruled that federal statutes restricting inheritance of specific tribal properties had preempted Oklahoma law. 5427. Elliott, Randall. “Indian Wills: Tooahnippah v. Hickle—Administrative and Judicial Review.” American Indian Law Review 2 (Winter 1974): 99–103. The Supreme Court decided that federal courts could review Secretary of the Interior decisions relating to wills. 5428. Francisco, William Payne. “Trends and Problems in the Probate of Estates of Deceased Indian Tribal Members.” Probate and Property 9 (Winter 1981): 15–17, 19. In 1971, probate was transferred from the BIA to the Secretary and Administrative Law Judges of Probate, but the regulations governing Indian probate remained unchanged. With self-determination, tribal courts are often required to hear probate cases, but tribal courts have great difficulty in settling intratribal legal problems. Tribal judges should develop tribal probate codes. 5429. Gunning, S. Gail. “Indian Probate: Can an Adopted Indian Child Receive Trust Property as an ‘Heir of the Body’ under an Indian Will?” American Indian Law Review 16, no. 2 (1991): 559–73.

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Estate probate involving an adopted Indian child is very complex. The child’s trustee will become involved because of the trust status of the involved property, thus enabling the trustee to preempt the will writer’s wishes. 5430. “Indians—Jurisdiction of State Laws.” New York University Law Quarterly Review 9 (June 1932): 498–500. In Woodin v. Seeley, decided in 1931, the court ruled that Seneca tribal inheritance took precedence over New York state law when a Seneca died and left his estate to his non-Indian wife. Congress should place the New York Indians under state jurisdiction. 5431. Kinsler, Jeffery S. “Native American Restricted Allotments: A Surviving Spouse’s Elective Share Right.” Ohio Northern University Law Review 20, no. 2 (1993): 263–75. In tribal communities, there is no provision that protects the living spouse from being disinherited in the will by the deceased, as there is under state law. New regulations should be drafted to protect the surviving spouse. 5432. “Marriage—Indians—Validity of Marriage of Indian Who Has Given Up Tribal Relations Government by Law of State in which He Resides.” Virginia Law Review 7 (December 1920): 230. In the case in re Wo-gin-up’s Estate, the court held that as long as a tribal member maintained tribal customs, tribal law governs inheritance. A tribal member taking an allotment is evidence of severing tribal relations. 5433. Nutten, Wesley L., III. “Probate Problems of the American Indian.” Real Property, Probate and Trust Journal 7 (Fall 1972): 495–501. The Committee on Probate Problems of the American Indian met in April 1971. The major problems are fractionation, legal counsel, legislation, notice and service of notice, notice of depositions, small estates, and amending rules and regulations.

thus their marriages to African Americans, who were classified as non-white, as interracial and illegal.

NATIONAL PARKS, FORESTS, MONUMENTS, AND WILDERNESS AREAS 5436. Beidleman, Richard G. “The Black Canyon of the Gunnison National Monument.” Colorado Magazine 40 (July 1963): 161–78. Describes resulting complications due to the fact that the proposed portion of the monument lay within lands guaranteed to the Utes by an 1888 treaty. 5437. Burnham, Philip. Indian Country, God’s Country: Native Americans and the National Parks. Washington, DC: Island Press, 2000. National Parks were often created at the expense of tribes whose lands were taken. In recent decades, conflicts among tribes and the parks remain, but there have been efforts toward compromise. Burnham surveys the history of the Blackfeet and Glacier, the Oglalas and the Badlands, the Mountain Utes and Mesa Verde, the Havasupais and Hualapais and the Grand Canyon, and the Shoshones and Death Valley. 5438. Corbett, William P. “Pipestone: The Origin and Development of a National Monument.” Minnesota History 47 (Fall 1980): 83–92. In 1932, the monument was created to preserve a quarry on former Yankton lands administered by the Office of Indian Affairs. The federal government assumed title to the quarry after awarding the tribe a $296,835 claims settlement in 1929. Without success, the Yankton council opposed the park because it would open the site to other tribes, ending their former monopoly. Other tribes favored the plan.

5434. Vaznelis, Antonina. “Probating Indian Estates: Conqueror’s Court versus Decedent Intent.” American Indian Law Review 10, no. 2 (1982): 287–309. Discusses the probate problem stemming from different concepts of property ownership.

5439. Crum, Steven. “A Tripartate State of Affairs: The Timbisha Shoshone Tribe, the National Park Service, and the Bureau of Indian Affairs, 1933–1994.” American Indian Culture and Research Journal 22, no. 1 (1998): 117–36. Traces the “mostly negative” effects of the 1933 creation of Death Valley National Monument for the Timbisha Shoshone. The tribe has pushed for the creation of a permanent reservation inside the park, and has met resistance from the National Park Service.

5435. Wallenstein, Peter. “Native Americans Are White, African Americans Are Not: Racial Identity, Marriage, Inheritance, and the Law in Oklahoma, 1907–1967.” Journal of the West 39 (January 2000): 55–63. Analyzes five cases in Oklahoma involving questions of inheritance from interracial marriages. Oklahoma law classified Native Americans as white, and

5440. Haberfeld, Steven. “Government-to-Government Negotiations: How the Timbisha Shoshone Got Its Land Back.” American Indian Culture and Research Journal 24, no. 4 (2000): 127–65. In 1998, the Timbisha Shoshone tribe regained a portion of their lands lost in the 1933 creation of Death Valley National Monument. After many failures in this quest, the tribe scored a victory when

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they were able to obtain a special provision concerning “suitable” reservation land in the 1994 California Desert Protection Act.

TWENTIETH-CENTURY WAR: SOVEREIGNTY AND CONSCRIPTION 5441. Hanson, Randel and Giancarlo Panagia. “Acts of Bureaucratic Dispossession: The Huckleberry Land Exchange, the Muckleshoot Indian Tribe, and Rational(ized) Forms of Contemporary Appropriation.” Great Plains Natural Resources Journal 7 (Fall 2005): 169–203. The Huckleberry Land Exchange involves U.S. Forest Service property given to Weyerhaeuser “for 30,000 acres of previously clear-cut lands.” These former Forest Service lands were the tribe’s ancestral home. They continued to use these lands and thrive culturally by maintaining access, but now that the land is in private ownership, doing so will be difficult. 5442. Keller, Robert H. and Michael F. Turek. American Indians and National Parks. Tucson: University of Arizona Press, 1998. American Indian reservations and National Parks have much in common, including federal mismanagement and their threatened status. The BIA has proved an effective advocate in tribal disputes with the NPS. Conflicts between tribes and the NPS have related to sacred sites, land use, wildlife management, craft sales, water rights, hunting rights, grazing rights, and other issues related to tribal sovereignty. Specifically considered relationships include the Apostle Islands National Lakeshore and Chippewas, Mesa Verde and Utes, Glacier and Blackfeet, Pipe Spring National Monument and Kaibab Paiutes, Olympic and Quinaults, the Grand Canyon and Arizona tribes, various parks and Navajos, and the Everglades and Seminoles. 5443. McNally, Kendra Shawne. “The Grand Canyon National Park Enlargement Act: Perspectives on Protection of a National Park.” Arizona Law Review 18, no. 1 (1976): 232–75. Navajo, Hualapai, and Havasupai reservations are next to or within Grand Canyon National Park. In 1975, Congress passed the park enlargement act, extending its boundaries. The latter tribe, which had a small reserve in Havasu Canyon, received 86,000 acres for their use. A compromise left the tribe’s demands and land use needs unsettled and Congress failed to protect park lands for public use. 5444. Nydahl, Theodore L. “The Pipestone Quarry and the Indians.” Minnesota History 31 (December 1950): 193–208.

An 1858 treaty guaranteed Yankton access to the Pipestone quarry. A 1928 Court of Claims case granted the tribe compensation for the federal government’s 1891 decision to build an Indian school at Pipestone. Federal recognition of Pipestone quarry’s importance to Native Americans contributed to the decision to establish a national monument there in 1937. 5445. Roat, Elizabeth. “Analyzing Conflicts between Indian Treaty Rights and Federal Conservation Regulations: Are State Regulation Standards Appropriate?” Marquette Law Review 84 (Spring 2001): 701–21. Two members of the Bois Forte Band of Chippewa were cited for using motorized vehicles in the Boundary Waters Canoe Area Wilderness and both asserted their reserved tribal treaty rights to fish and hunt on ceded lands. The lower court held that the conservation purposes for nonmotorized vehicles are nondiscriminatory and a federal appeals court added that the ban did not harm the tribe’s 1854 treaty rights. 5446. Spence, Mark David. “Crown of the Continent, Backbone of the World: The American Wilderness Ideal and Blackfeet Exclusion from Glacier National Park.” Environmental History 1 (July 1996): 29–49. The National Park Service wanted the western part of the Blackfeet Reservation as an eastern extension to Glacier National Park. After being removed from the lands that became the park extension, the Blackfeet are regaining their rights. 5447. Spence, Mark David. Dispossessing the Wilderness: Indian Removal and the Making of the National Parks. New York: Oxford University Press, 1999 Three parks in particular, Yosemite, Yellowstone, and Glacier, serve to exemplify how Indian removal and exclusion allowed for the appearance of federal preservation of supposedly “uninhabited wilderness” lands. Spence describes the concurrent development of federal reservation policy and park creation, tribal land use patterns on these lands prior to park establishment, and continuing tension between tribes and the Department of the Interior. 5448. Spence, Mark David. “Dispossessing the Wilderness: Yosemite Indians and the National Park Ideal, 1864–1930.” Pacific Historical Review 65 (February 1996): 27–59. Yosemite officials found the presence of Native Americans incompatible with the goals of the national park system, and therefore began a gradual removal of the Yosemite Indians in the 1930s. Spence also compares the Yosemite experience with those of Natives affected by the creation of Yellowstone and Glacier National Park. 5449. Wilkinson, Charles F. “Indian Tribal Rights and the National Forests: The Case of the Aboriginal Lands

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of the Nez Percé Tribe.” Idaho Law Review 35, no. 3 (1998): 435–63. Nez Percé aboriginal lands reach into five national forests, creating many complex issues. In 1991, former tribal chairman Allen Pinkham became the Forest Service liaison officer to the tribe and assisted in a memorandum of understanding signed between the tribe and the Forest Service. 5450. Wilson, Raymond. “Establishing Canyon De Chelly National Monument: A Study in Navajo and Government Relations.” New Mexico Historical Review 51 (April 1976): 109–20. Led by commissioner of the Navajo tribe, H. J. Hagerman, the federal and tribal governments negotiated for the creation of the monument, finalized in 1931. In these negotiations, the U.S. promised that the monument would not curtail Navajo grazing rights, nor any other rights the tribe held to the land. 5451. Adair, John. “The Navajo and Pueblo Veteran: A Force for Culture Change.” American Indian 4, no. 1 (1947): 5–11. Veterans returning from war are made more aware of the injustices of alcohol prohibition, the restriction of voting rights, and the difficulties they face in securing GI Bill benefits. 5452. Bernstein, Alison R. American Indians and World War II: Toward a New Era in Indian Affairs. Norman: University of Oklahoma Press, 1991. The war affected tribal life and Indian policy more than had previous policies, helping usher in both termination policy and self-determination efforts. Bernstein comments on such sovereignty-related topics as Collier’s Indian New Deal, the IRA, draft disputes, tribal land losses and leases to assist the war effort, the founding of the NCAI, efforts to gain Indian voting rights in the Southwest, and the varying motivations behind creating the ICC. 5453. Britten, Thomas A. American Indians in World War I: At War and at Home. Albuquerque: University of New Mexico Press, 1997. Studies their participation in the war at home and abroad and its effects on their lives. Discussion includes relaxation of restrictions on allotted lands, incidents of racism, and the controversy over the military conscription of non-citizen Indians. 5454. Britten, Thomas A. “The Creek Draft Rebellion of 1918: Wartime Hysteria and Indian-Baiting in WWI Oklahoma.” Chronicles of Oklahoma 79 (Summer 2001): 200–215. A media frenzy magnified a protest against the draft into a supposed uprising masterminded by a

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Creek woman named Ellen Perryman. This event illustrates racial stereotyping, Creek struggles to respond to the pains of allotment and dissolution, and the general public hysteria during the war years. 5455. Collier, John. “The Indian in a Wartime Nation.” The Annals of the American Academy of Political and Social Science 223 (September 1942): 29–35. Collier provides an overview of tribal Americans’ involvement in World War II, including fighting, using tribal lands for relocation, and employment in wartime industries. Also discusses tribal sovereignty and the Selective Service. 5456. Ellis, Richard N. “‘Indians at Ibapah in Revolt’: Goshutes, the Draft and the Indian Bureau, 1917–1919.” Nevada Historical Society Quarterly 19 (Fall 1976): 163–70. Concerned with maintaining a patriotic image, the Indian Office manipulated Goshute anger toward the service and their lack of an understanding of the selective service. To end their anti-military stance, the U.S. Army entered the reservation. 5457. Finger, John R. “Conscription, Citizenship, and ‘Civilization’: World War I and the Eastern Band of Cherokee.” North Carolina Historical Review 63 (July 1986): 283–308. Office of Indian Affairs officials saw the conflict as an opportunity to promote Native assimilation. Despite their general treatment as non-citizens and official uncertainty over their citizenship status, these Cherokees were subject to conscription. The Indian Office failed to address this paradox. Even after serving in the military, Cherokees were commonly denied the right to vote. 5458. Franco, Jere’ Bishop. “Bringing Them in Alive: Selective Service and Native Americans.” Journal of Ethnic Studies 18 (Fall 1990): 1–28. Discusses the movement that John Collier began to register tribal members with the Selective Service in preparation for WWII. State authorities did this work, thus creating the potential for discrimination against Native peoples. 5459. Franco, Jere’ Bishop. Crossing the Pond: The Native American Effort in World War II. Denton: University of North Texas Press, 1999. Thematic chapters deal with various aspects of the Native military and home front experience. Native Americans believed that their participation would help spawn a more just America, but they found that civil rights struggles still had to be waged. Special topics include Nazi propaganda, the American Indian Federation, Native images in wartime propaganda, American Indian labor experiences, the Santa Fe

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Indian Club, and postwar struggles for enfranchisement and against the prohibition of alcohol sales to Natives. 5460. Holm, Tom. “Fighting a White Man’s War: The Extent and Legacy of American Indian Participation in World War II.” Journal of Ethnic Studies 9 (Summer 1981): 69–82. Discusses Native involvement as combatants and non-combatants, and argues that that involvement helped prompt termination policy after the conflict. 5461. Kholhoff, Dean. When the Wind Was a River: Aleut Evacuation in World War II. Seattle: University of Washington Press, 1995. Following a 1942 Japanese invasion, Aleuts were forcibly removed and interned by both the U.S. and Japan. Their story is followed through the postwar resettlement and their successful effort to gain restitution in 1988. 5462. Townsend, Kenneth. World War II and the American Indian. Albuquerque: University of New Mexico Press, 2000. Native Americans participated in World War II for many reasons and it was a “crossroads” in Indian lives and federal Indian policy. Specific chapters deal with Nazi propaganda, Native military service, conditions on the home front and the move toward termination policy. Draft resistance during the war illuminated Native discontent with federal policies toward Indian communities and their desire to assert separate Indian identities, presaging the later “Red Power” movement. 5463. Useem, John, Gordon MacGregor, and Ruth Hill Useem. “Wartime Employment and Cultural Adjustments of the Rosebud Sioux.” Applied Anthropology 2 (January–March 1943): 1–9. Discusses the transition from New Deal programs to wartime service and employment by members of the Rosebud Reservation. Many joined the service to participate in the dependency grant program to send money home for those in need. 5464. Vogt, Evon Z. “Between Two Worlds: Case Study of a Navajo Veteran.” American Indian 5, no. 1 (1949): 13–21. Case study of a Navajo veteran leads Vogt to recommend extension of GI loans as soon as possible, lifting prohibition on Indian drinking, and moving forward with the Navajo rehabilitation program. 5465. Wood, David L. “Gosiute–Shoshone Draft Resistance, 1917–18.” Utah Historical Quarterly 49 (Spring 1981): 173–88. Account of tension and confusion stemming from the federal order that the Gosiute and other tribes reg-

ister for the draft, including those whose lack of citizenship made them ineligible for conscription. American military troops enforced Gosiute compliance. Gosiute resistance stemmed not from cowardice, but from disputes over the definition of citizenship and past federal mistreatment. 5466. Zissu, Erik M. “Conscription, Sovereignty, and Land: American Indian Resistance during World War I.” Pacific Historical Review 64 (November 1995): 537–66. Offers examples of Indian resistance to federal Indian policies during the war, as opposed to the more widely known examples of Indian support. Zissu stresses the threat the war posed to Indian legal protections and natural resources, and says that the war intensified Native efforts to protect their lands and sovereignty, especially through the assertion of their treaty rights. The federal government seized Native lands and resources to meet the war effort over the objections of Indian leaders and activists. Controversies over conscription similarly revealed the precarious nature of Native “semi-sovereignty.”

WELL-PLEADED COMPLAINT RULE 5467. Brandt, Janice. “Indian Sovereignty—Beyond the ‘Well-Pleaded Complaint Rule.’” Thurgood Marshall Law Review 15 (Fall 1989–Spring 1990): 169–88. Oklahoma sought to recover state excise taxes from cigarette sales on the Chickasaw Reservation. This case brought the well-pleaded complaint rule to the surface. The rule “is not inherent in each case removed to federal court.” 5468. Smith, Kaighn, Jr. “Federal Courts, State Power, and Indian Tribes: Confronting the Well-Pleaded Complaint Rule.” New Mexico Law Review 35 (Winter 2005): 1–36. Justice Oliver Wendell Homes defined this legal concept as one where a “suit arises under the law that creates the cause of action.” It surfaced in the Inyo County case in California where the “well-pleaded complaint rule” became a wall preventing a tribe from taking its case to federal court.

OTHER TOPICS 5469. Ball, Milner S. “Stories of Origin and Constitutional Possibilities.” Michigan Law Review 87 (August 1989): 2280–3219. Attempts to clarify the important connections between law, tribal issues, and stories. Examples relate to the Lakotas and the Black Hills claim and the

Special Topics

ICRA and Martinez. The Supreme Court rarely has decided that a congressional act affecting tribal America is unconstitutional. 5470. Doty, Peggy. “Constitutional Law: The Right to Wear a Traditional Indian Hair Style—Recognition of a Heritage.” American Indian Law Review 4, no. 1 (1976): 105–20. Most court decisions note that a tribal member does not have a constitutional right to wear a traditional hairstyle. The legal right to wear one’s hair a specific way to honor vows and cultural protocol requires legal protection. 5471. Duthu, N. Bruce. “Incorporating Discourse in Federal Indian Law: Negotiating Tribal Sovereignty through the Lens of Native American Literature.” Harvard Human Rights Journal 13 (Spring 2000): 141–89. Tribal literature is not just fiction, but includes stories of truth, custom, law, and tradition that permit outsiders to reorient themselves to the tribal way when studying tribal and federal Indian law. 5472. Fletcher, Matthew L. M. “The Comparative Rights of Indispensable Sovereigns.” Gonzaga Law Review 40 (2004–2005): 1–126. Over the last four decades, tribal governments have become sophisticated enough “to defeat most spurious challenges to their land title and sovereignty.” Still “federal and state courts tend to short change Indian tribes” when applying “the compulsory joinder rule.” Many employ this legal rule, which is a means to prevent a suit from going forward without all interested parties present.

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was abused, leading to kidnapping, but was not enforced throughout the territory. 5475. Kissel, Benedetta A. “The Ninth Circuit’s Federal Instrumentality Doctrine: A Threat to Tribal Sovereignty.” Notre Dame Lawyer 53 (December 1977): 358–84. The first federal instrumentality doctrine case was decided in McCulloch v. Maryland, which prohibited state taxation of a U.S. entity that protected tribal sovereignty. The Ninth Circuit Court of Appeals has made tribal government a federal agent, subjecting tribes to the same restraints as the federal government. 5476. Miller, Bruce G. “The Great Race of 1941: A Coast Salish Public Relations Coup.” Pacific Northwest Quarterly 89 (Summer 1998): 127–35. A publicized race between two Indian canoes and two University of Washington shells was part of a plan to bring Indian issues to light and improve relations with non-Indians. 5477. Shapira, Anne. Paving the Way: Strategies for Tribes to Increase Transportation Funding. Harvard Project on American Indian Economic Development, John F. Kennedy School of Government, Cambridge, MA: Harvard University, April 1999. Tribes and states have the opportunity to negotiate Intergovernment Tax Agreements to improve reservation transportation systems. Tribes also have the opportunity to become participants in state/federal transportation planning.

5473. Fraser, Cami. “Protecting Native Americans: The Tribe as Parens Patriae.” Michigan Journal of Race and Law 5 (Spring 2000): 665–94. Parens Patriae is a legal concept that gives standing for a sovereign to initiate lawsuits on behalf of its citizens. American law only accepts this principle in the case of states, tribes, and the federal government. The current requirement is that a suit must be brought on behalf of all members. Fraser argues that it should be modified for tribal nations to assist them in bringing suit.

5478. Shinnick, Phillip K. “Natural Sport, The Olympic Prison, and the Fight for Sovereignty Rights of the Mohawk.” Journal of Ethnic Studies 9 (Spring 1981): 43–52. In 1978, at the XI Annual Youth Festival in Cuba, tribal representatives presented their case and received a great reception. The Mohawks described how Lake Placid Olympic Park would become a prison on tribal lands after the 1980 Winter Olympic Games. This became a sovereignty issue that put the state of New York in a difficult position and created conflict between federal, state, and tribal people.

5474. Hurtado, Albert. “California Indians and the Workaday West: Labor, Assimilation, and Survival.” California History 69 (Spring 1990): 2–11. Indians provided labor vital to California’s development. Many voluntarily became wage workers as a means to survive, but others became laborers through enslavement and debt peonage. An 1850 California law also allowed justices of the peace to indenture Indian orphans and adult loiterers to whites. This law

5479. Silvern, Steven E. “Scales of Justice: Law, American Indian Treaty Rights and the Political Construction Scale.” Political Geography 18 (August 1999): 639–68. Using the Chippewa–Wisconsin off-reservation hunting rights as a focal point, Silvern demonstrates how both the state- and Chippewa-reconstructed geographical scales modified the scope of political scale.

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5480. Skibine, Alex Tallchief. “Applicability of Federal Laws of General Application to Indian Tribes and Reservation Indians.” U.C. Davis Law Review 25 (Fall 1991): 85–140. Questions the courts’ methods of determining whether, when Congress passes a general law, that law applies to tribal lands. 5481. Stouff, Courtney A. “Native Americans and Homeland Security: Failure of the Homeland Security Act to Recognize Tribal Sovereignty.” Penn State Law Review 108, no. 1 (2003): 375–94. To deter future terrorist attacks, Congress passed the Homeland Security Act, which includes tribal governments as local governments. Tribal govern-

ments need to be separated from local governments and be defined as states. 5482. Tattershall, Doug. “‘Our Rights, Our Country, Our Race’: W. P. Ross and the Cherokee Advocate, 1844–1848.” Chronicles of Oklahoma 70 (Fall 1992): 326–36. Its first editor, Ross, tried to accomplish several goals with this newspaper. The publication aimed to defend tribal sovereign rights against federal intrusions, to resolve internal tribal disputes, and to enlighten non-Indian readers. Although it met many of its aims, it generally failed in these latter two.

Chapter 57 Bibliographies and Research Collections

5483. Adams, Edward L. “Pathfinder of Indian Religious Freedom.” Legal References Services Quarterly 15, no. 3 (1996): 15–102. Annotated bibliography assembled from research related to an amendment to AIRFA and divided by subject headings.

5488. Carter, Nancy Carol. “The Special Case of Alaskan Native American Law and Research.” Legal References Services Quarterly 22, no. 4 (2003): 11–46. Selected bibliography examines themes in Alaska Native legal history. 5489. Dees, Harry. “Basic Bibliography for Native American Law.” Law Library Journal 69 (February 1976): 78–89. Describes the foundation materials necessary to build a strong tribal law collection, including out-ofprint materials. Basic literature and ideas on keeping the library holdings current are included in these nonannotated entries.

5484. Baringer, Sandra. “Indian Activism and the American Indian Movement.” American Indian Culture and Research Journal 21, no. 4 (1997): 217–50. A bibliographic essay that provides unannotated sources pertaining to 1970s tribal activism. Topics include Alcatraz, Wounded Knee, the FBI, and AIM. 5485. Carter, Nancy Carol. “American Indian Law: Research and Sources.” Legal References Services Quarterly 4 (Winter 1984/1985): 5–71. Annotated sources ranging from government documents to primary and secondary sources pertaining to American Indian law. Executive decisions, statutes and legislation, and case law are included.

5490. Dupont, Jerry, ed. Native American Collection: A Bibliography Describing the Microfiche Collection Assembled and Marketed by the Law Library Microform Consortium. Honolulu, HI: LLMC, 1990. Un-annotated with a combined index of authors, place and proper names, subjects, titles and tribes.

5486. Carter, Nancy Carol. “American Indian Tribal Governments, Laws and Courts.” Legal References Services Quarterly 18, no. 2 (2000): 7–24. Selective annotated primary and secondary source entries on self-government and tribal sovereignty.

5491. Fausett, Rory Snow Arrow and Judith V. Royster. “Courts and Indians: Sixty-Five Years of Legal Analysis: Bibliography of Periodical Articles Relating to Native American Law, 1922–1986.” Legal References Services Quarterly 7 (Winter 1987): 107–229. There are 1,280 un-annotated citations divided by year and alphabetically by author.

5487. Carter, Nancy Carol. “American Indians and Law Libraries: Acknowledging the Third Sovereign.” Law Library Journal 94 (Winter 2002): 7–26. Though tribal nations are collectively the third sovereign in the American federal system, many legal scholars do not know that tribes and their governing institutions exist. Law librarians are following this same pattern. If they are not collecting tribal law documents, they are neglecting the legal histories and legal records of hundreds of sovereigns.

5492. Folts, James D. “Before the Dispersal: Records of New York’s Official Relations with the Oneidas and Other Nations.” In The Oneida Indian Journey: From New York to Wisconsin, 1784–1860, edited by Laurence M. Hauptman and L. Gordon McLester III, 151–70. Madison: University of Wisconsin Press, 1999.

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Describes related documents held in the New York State Archives and elsewhere, and assesses preservation and dissemination efforts. 5493. Foreman, Grant. “A Survey of Tribal Records in the Archives of the United States Government in Oklahoma.” Chronicles of Oklahoma 11 (March 1933): 625–34. The federal agency known as the Commission to the Five Civilized Tribes received tribal records that were referred to when making up rolls as part of the allotment process. Foreman describes the process through which these and other tribal records were preserved at the Oklahoma Historical Society, and summarizes the contents. 5494. Gasaway, Laura N., James L. Hoover, and Dorothy M. Warden. American Indian Legal Materials: A Union List. Stanfordville, NY: Earl M. Coleman, 1980. Un-annotated list of monographs, government documents, and serial titles for those items held in law school libraries, government collections and law firm libraries. 5495. Gillingham, John W. “Pathfinder: Tribal, Federal, and State Court Subject Matter Jurisdictional Bounds: Suits Involving Native American Interest.” American Indian Law Review 18, no. 1 (1993): 73–132. A researcher’s guide to the major issues, subject matter, and sources to consult when trying to understand the boundaries of federal, state, and tribal authority. An annotated bibliography focuses on sources that determine whether a tribe, state, or the federal government has jurisdiction in a specific situation. 5496. Grossman, George, Rennard Strickland, Hans Walker, Victoria S. Santana, and Larry Levanthal. “Sources of American Indian Law.” Law Library Journal 67 (November 1974): 494–527. A panel held at the Annual Meeting of the American Association of Law Libraries discussing American Indian sources. Included reference materials are historical, cultural, and legal in scope. 5497. Hoxie, Frederick E. “The View from Eagle Butte: National Archives Field Branches and the Writing of American Indian History.” Journal of American History 76 (June 1989): 172–80. Discusses the importance of understanding the varied and widely dispersed records that must be consulted to write tribal history and allow the subject to break free from its current bonds. 5498. Johansen, Bruce E. Native American Political Systems and the Evolution of Democracy: An Annotated Bibliography. Westport, CT: Greenwood Press, 1996.

Sources address the question of whether the Iroquois confederacy and other Native political systems influenced American democracy. The entries, some of which are extensively annotated, are arranged chronologically by date of publication. 5499. Jorgensen, Delores A. and Barbara B. Heisinger. A Bibliography of Indian Law Periodical Articles Published, 1980–1990, 2nd ed. Buffalo, NY: William S. Hein & Co., 1992. Un-annotated listings organized topically and including a table of cases. Includes a 1991 update. 5500. Kawashima, Yasuhide. “The Native Americans and White Man’s Law before 1800.” Indian Historian 11 (Spring 1978): 22–27. Examines research materials that could be used to construct legal relationships between tribal nations and their non-tribal neighbors. Legal resources are not being utilized to the full extent that they should be. 5501. Lauer, Tammy, John Poupart, and John Red Horse, compilers. American Indians and Repatriation: A Bibliography. St. Paul, MN: American Indian Research and Policy Institute, 1995. Includes published books and articles, and government documents. 5502. McDonald, David R. “Native American Hunting and Fishing Rights: An Annotated Bibliography.” Indian Historian 11 (December 1978): 57–62. Describes the difficulty in locating sources on this topic. The annotated sources selected were not intended as a comprehensive bibliography, but are accessible and important sources that often reflect the view that Indians continue to be blamed for wildlife and fishery population declines. 5503. McLaughlin, Michael R. “The Dawes Act, or Indian General Allotment Act of 1887: The Continuing Burden of Allotment. A Selective Annotated Bibliography.” American Indian Culture and Research Journal 20, no. 2 (1996): 59–105. Includes monographs, law review articles, U.S. Code, U.S. Statutes-at-Large, congressional documents, national archives publications and other materials relevant to the history of the Dawes Act. Many of the entries are annotated. McLaughlin includes tips for scholars pursuing research on American Indian law topics. 5504. National Indian Law Library Catalogue: An Index to Indian Legal Materials and Resources. Boulder, CO: Native American Rights Fund, 1982. Index to the NILL collection of case files, books, law journal articles, and other materials. Supplements followed in 1985 and 1989.

Bibliographies and Research Collections

5505. Pratter, Jonathon. “Treaty Research Basics.” Law Library Journal 89 (Summer 1997): 407–13. Provides a three-step process to research the current standing of treaties. 5506. Prucha, Francis Paul. A Bibliographical Guide to the History of Indian–White Relations in the United States. Chicago, IL: University of Chicago Press, 1977. Unannotated volume includes sections on Indian policy, military relations, treaties, trade, legal relations, education, health, missions, social and economic issues, tribal-specific studies, and special topics. Entries include books, academic and magazine articles, government publications, and dissertations. 5507. Prucha, Francis Paul. “Books on American Indian Policy: A Half-Decade of Important Work, 1970–1975.” Journal of American History 63 (December 1976): 658–69. Bibliographic essay that discusses book publishing on American Indian history, policy, and law. 5508. Prucha, Francis Paul. Indian–White Relations in the United States: A Bibliography of Works Published 1975–1980. Lincoln: University of Nebraska Press, 1982. Un-annotated volume supplementing a previous volume by Prucha, and conforming to the same format. 5509. Prucha, Francis Paul. United States Indian Policy: A Critical Bibliography. Bloomington: Indiana University Press, 1977. Bibliographic essay followed by a listing of selected sources. 5510. Remerowski, Anita, Ed Fagan, and Karl Funke. Bibliography on Indian Economic Development: Aids for the Development of Essential Legal Tools for the Protection and Regulation of Commercial Activities on Indian Reservations. Boulder, CO: Native American Rights Fund, 1982. Annotated list divided into articles, books, and government materials (including Congressional hearings). It is not further subdivided and includes no index. 5511. Sabatini, Joseph D. American Indian Law: A Bibliography of Books, Law Review Articles and Indian Periodicals. Albuquerque: American Indian Law Center, School of Law, the University of New Mexico, 1973. Un-annotated list divided into books, law reviews, and Indian periodicals sections and subdivided by topics. 5512. Salabiye, Velma S. and James R. Young. “American Indian Leaders and Leadership of the Twentieth Cen-

589

tury: A Bibliographical Essay.” Journal of the West 23 (July 1984): 70–76. Lists, with limited annotation, sources about political leaders, reformers, AIM, and women’s leadership. 5513. Strickland, Rennard. “The Dilemma of Preserving Tribal Culture and Promoting Resource Development: A Bibliographic Essay.” Natural Resources & Environment 7 (Spring 1993): 34–37, 63–64. Discusses sources pertaining to tribal natural resources. 5514. Strickland, Rennard. “The Price of a Free Man: Resources for the Study of Indian Law, History and Policy at the University of Tulsa.” Tulsa Law Journal 15 (Summer 1980): 720–32. A bibliographic essay on the important resource potential that exists at the University of Tulsa. 5515. Sutton, Imre. Indian Land Tenure: Bibliographic Essays and a Guide to the Literature. New York: Clearwater Publishing Co., The Library of American Indian Affairs Series, 1975. Three areas are explored in these un-annotated entries: Aboriginal Occupancy and Territoriality; Land Cessions and the Establishment of Reservations; and Land Administration and Land Utilization. 5516. Watts, Tim J. American Indian Tribal Autonomy and American Society in the 1980s: A Bibliography. Valparaiso, IN: Vance Bibliographies, School of Law, Valparaiso University, 1988. Un-annotated bibliography providing a sampling of works that were published in the 1980’s related to tribal sovereignty. 5517. White, Phillip M. Bibliography of Native American Bibliographies. Westport, CT: Praeger Publishers, 2004. Annotated entries organized topically and by tribe. 5518. White, Phillip. M. Peyotism and the Native American Church: An Annotated Bibliography. Westport, CT: Greenwood Press, 2000. Includes entries (most annotated) from books, articles, master’s theses, Ph.D. dissertations, newspapers, conference papers, government documents, online sites, and recorded performances, including non-English language sources. 5519. Wilkinson, Charles F. and Anna Nikole Ulrich. “Annotated Bibliography of the Basic Literature Needed for an Understanding of Tribal Governance.” Wicazo Sa Review 17 (Spring 2002): 7–12. A list of published books and articles with brief annotations ranking them for significance.

Author Index

Aamot-Snapp, E. W., 4878 Abbot, Austin, 1 Abbott, George A., 3263 Abbott, Kathyrn A., 5060 Abbott, Martin L., 958 Aberle, David F., 2898–99, 3475 Aberle, Sophie, 976 Abernathy, Col. Alonzo, 332 Abourezk, James G., 2289 Abrams, Robert H., 3773–75 Abu-Sa’ad, Isma’il, 212, 1307 Ackerman, Francis E., 2404 Adair, John, 5451 Adams, Alycee, 4999 Adams, E. Charles, 3053 Adams, Edward L., 5483 Adams, Gordon, 1581 Adams, Jill E., 4879 Adams, Jim, 3476, 4520 Adams, K. Bliss, 2290 Adamson, Rebecca , 1208, 3477 Aden, Steven H., 1741 Afrasiabi, Peter R., 3054 Agnew, Brad, 1281 Agnew, Richard D., 5417 Ahlberg, Kristin L., 1166 Ahola, Amber J., 4521 Ainsworth, Ed, 729 Aitken, Janice, 1209 Akers, Donna, 543 Akins, Nancy, 2969 Akwesasne Notes, 255 Alamo, Michelle L., 334 Albert, Steven K., 4382 Alcoze, Thom, 4470 Aleinikoff, T. Alexander, 1256 Alexander, John R., 4022 Alexander, M. Jacqui, 5124 Alexander, Robert William, 4754 Alfred, Taiaiake, 2 Ali, Saleem H., 4251–52 Allbaugh, Diane, 4880

Allen, Cain, 4075 Allen, John H., 3354 Allen, Leslie, 4383 Allen, Mark, 3478, 4384 Allen, W. Ron., 3355 Alleva, Patti, 1869 Allison, Amy Choyce, 3776 Alstad, Milva M., 3391 Alston, Lee J., 2405 Althouse, H. Scott, 2163 Alvarez, Alexander, 2023, 2030 Alverez, Frank H., 4235 Amato, Christopher A., 3055 Ambler, Marjane, 4254–56 American Indian Law Center, 1554 American Indian Lawyer Training Program, 3, 1282, 1870, 2024, 2291, 3777, 4277, 4311, 4316, 4319, 4331, 4335, 4343, 4371, 4377, 4385, 4425, 4448, 4475, 4501, 4510, 4513, 4881, 4945 Ames, David W., 969 Ames, Marilyn, 4755 Amnesty International, 4 Amundson, Ann E., 3778 Anaya, S. James, 1257, 5287–89 Anders, Gary C., 3479, 4522, 5143–45 Andersen, Bryan T., 2166 Anderson, Brett, 2799 Anderson, Celina, 4996 Anderson, David H., 4257 Anderson, Edward F., 2900 Anderson, Gary C., 1103 Anderson, George E., 335 Anderson, Grant K., 2406 Anderson, H. Allen, 336 Anderson, Harry, 337 Anderson, Ivy, 4076 Anderson, James, 5026 Anderson, Joseph S., 3480 Anderson, Karen, 5114 Anderson, Kevin N., 3454 591

Anderson, Lisa M., 3058 Anderson, Michael R., 4077 Anderson, Owen L., 4078 Anderson, Robert T., 1937, 3779 Anderson, Steven B., 1742 Anderson, Steven O., 2591 Anderson, Terry Lee, 743, 817, 882, 970, 1291, 2405, 3481–85, 3510, 3554, 3567, 3581, 3710–11, 4021, 4617 Anderson, Thomas A., 1743 Anderson, William L., 544, 649 Andrade, Ronald, 3264, 4523, 4672 Andreas, Mary Ann, 4672 Andreason, Cynthia Thorley, 2798 Andress, Judith, 5290 Andrews, Mark, 5146 Angell, John, 5147 Angle, Jerry, 2167 Anner, John, 4444 Annis, Melissa, 5027 Anson, Bert, 545–46 Ansson, Richard, 4386 Ansson, Richard J., Jr., 256, 1744, 3486, 4756–58 Anstead, Harry Lee, 1938, 3056 Antos, Susan T., 2592 Anyon, Roger, 3102, 3127, 3196, 3201, 3219 Apess, William, 1489 Aprill, Ellen P., 4759 Araas, John F., 3780 Archabeau, Rain, 3712 Archambeault, William G., 2025–26 Armsby, E. Raymond, 257 Armstrong, Troy L., 1555 Arnet, Cory, 3057 Arnett, Howard G., 3749 Arnold, David, 5148 Arnold, Kevin D., 4524 Arnold, Robert D., 5149 Arnott, Sarah, 2407, 5150 Arrow, Dennis W., 1639, 4760

592 Arsanjani, Mahnoush H., 5291 Arthur, Claudeen Bates, 1939 Aschenbrenner, Peter J., 4079 Ashabranner, Brent, 4258 Asher, Brad, 1745, 2027–28 Ashley, Jeffrey S., 1490 Ashton, Sandra J., 4525 Atkinson, Karen, 5151 Atkinson, Matthew, 2408 Atwood, Barbara Ann, 4882–84 August, Jack, Jr., 1940 Aumann, F. R., 338 Austin, Megan S., 5292 Austin, Raymond D., 1640 Baade, Hans W., 3781 Babbitt, Hattie, 4762 Babner, David Perry, 2901 Baca, Lawrence R., 5–7, 1746 Bacal, Jessica, 3782 Bachman, Ronet, 2023, 2029–30 Bacigal, Ronald J., 1104 Back, William Douglas, 3783, 5061 Baerreis, David A., 971, 1014, 5028 Bahr, Howard M., 41, 1124, 1958, 1976, 2158, 5026 Bailey, Garrick, 258 Bailey, Gypsy Cowherd, 3032 Bailey, Roberta Glenn, 258 Bailin, Roxanne, 5091 Baird, Brian Douglas, 3455 Baird, David W., 2409 Baird, Lisa, 4080 Bakeis, Christine D., 4885 Baker, Charles E., 494 Baker, Emerson W., 339 Baker, Mark T., 5062 Baker, Wayne, 1519 Bakers, Brenda J., 3058 Baldassin, William R., 2168 Ball, Milner S., 8, 1838, 5469 Balman, Gail, 340 Bamberger, James A., 2169 Bangs, Jeremy Dupertuis, 2410 Banks, Britt D., 2800, 4301 Banks, Dennis, 1105 Bannan, Helen M., 5127 Banner, Stuart, 2411 Bannon, John Thomas, Jr., 2902 Barce, Elmore, 341 Barerra, Richard, 895 Baringer, Sandra, 5484 Baris, Allan, 2170 Barker, Joanne, 2, 9, 3265, 4188 Barker, Michael L., 1995–96, 2293 Barker, Robert W., 2593 Barlow, Sarah W., 4977 Barnard, Susan K., 493 Barnes, Lela, 342 Barnes, Richard L., 2903, 4526

Author Index Barnett, Milton L., 971 Barney, Ralph A., 2594–97 Baron, Roger M., 4886 Barone, Jackie, 4527 Barreiro, José, 1283, 1346, 1356, 1473, 3059 Barrett, Kimberley Holt, 4920 Barrilleaux, Charles L., 3362 Barrington, Linda, 3488, 3716 Barron, Pam Moore, 4762 Barry, John Edward, 2598 Barry, Tom, 4259–60 Barsh, Russel Lawrence, 10–11, 816, 1284–85, 1641–42, 1747, 2294–95, 2412, 2599, 2801–2, 2904, 2970, 3266, 3713–14, 3742, 4081, 4261–62, 4387, 4763, 4887, 5293–98, 5423 Barth, R. P., 4888 Bartness, Duchess, 1969 Barton, Candace M., 2171 Barton, John D., 2171 Basehart, Harry W., 1286, 3665 Basinger, Douglas, 817 Bauer, Michael R., 3489 Bauer, William, 3490 Bauerlein, Monika, 4388 Bauman, Robert F., 547 Baxter, Melinda, 5063 Bays, Brad A., 644, 692, 1491–92, 1514, 2413, 4126, 4485, 4710 Beaglehole, Ernest, 5424 Beals, Ralph L., 2600 Bean, Jerry L., 12, 3456, 4082 Bean, Lowell John, 3491 Beatty, Donald R., 818 Beatty, Willard W., 5028 Beaulieu, David L., 730, 5092 Beaver, Jennifer B., 3392 Beck, Alma Soongi, 4083 Beck, David R. M., 972, 5093–94 Beck, Monte, 4084 Becker, Bidtah N., 1287 Becker, Herbert, 13 Becker, Marshall Joseph, 343 Becker, Mary Druke, 259 Beckerman, Ira, 3060 Bedortha, Christian C., 4528 Bee, Robert L., 680, 689, 704, 711, 819–20, 1052, 1093, 1288–90, 1359, 1493, 3356, 3492 Beeson, Ann E., 2905 Began, Manley, A., Jr., 3493–94, 4529 Begay, Harold G., 5029 Begay, Manley, 2019 Behrens, Jo Lea Wetherilt, 731, 2414 Beidleman, Richard G., 5436 Bekken, James M., 2172, 2601 Belisle, Stacy, 5152 Bell, Catherine, 3061 Bell, Sharon J., 2602

Belliveau, James J., 4530 Bellmard, Ken, 1941 Belsky, Martin H., 4085 Bender, Albert, 4531 Bender, Paul, 3062 Benedek, Emily, 2415 Benedict, Jeff, 4532 Benischek, Sandra D., 4389 Benge, William B., 1643 Bennett, Carla J., 3784 Bennett, Elmer F., 3495, 4263 Bennett, J. E., 2416 Bennett, Michelle K., 4889 Bennett, Robert L., 2603, 3496 Benson, Bruce L., 1291, 3483, 3485, 3554, 3567, 3581, 4617 Benson, Todd, 672 Bentley, Shannon, 4086 Bercaw, David G., 3063 Berens, John F., 1106 Berg, Laura, 4087 Berger, Bethany Ruth, 2296–97, 5115–16 Berger, Edward B., 4264–67 Berger, Jana M., 4533 Berger, Thomas R., 5153–54 Bergman, Gene, 2604 Bergman, Sandra E., 4268 Berk, Robert, 4088 Berkey, Curtis G., 108, 448, 896–99, 1258, 1292, 2298, 5299 Berlant, Steven H., 4390 Berman, Howard R., 2417, 5300 Berman, Samuel, 4391 Berman, Tressa, 4976 Bernard, Phyllis E., 1942 Bernardi-Boyle, Dao Lee, 3497 Bernardis, Tim, 1361 Bernholz, Charles D., 344 Bernstein, Alison, 5117 Bernstein, Alison R., 5452 Berry, Kate A., 644, 3785–86 Berry, Mary Clay, 5155 Berryhill, Peggy, 900 Berthrong, Donald J., 673, 732, 1107, 1293 Berutti, Ronald A., 1839 Best, Rick, 2418 Bieder, Robert E., 3064 Bielski, John R., 5156 Bigart, Robert, 345, 674 Bigart, Robert James, 3498 Bilharz, Joy A., 436, 5404 Billie, Bobby C., 675, 2971 Billington, Ray Allen, 346 Binney, Allison, 973 Biolsi, Thomas, 14, 260, 478, 676, 901–2, 1294, 1337, 1494, 1592, 2665, 3216, 3267, 3457, 3642, 5171 Birchfield, Don L., 347 Birdbear, Duane, 4034

593

Author Index Birdzell, Douglas, 2299 Birkett, Peter W., 1644 Bischoff, William N., 348 Bishop, Bruce A., 1495 Bishop, Catherine M., 4995 Bishop, Joan, 5095 Bishop, Kathleen, 974 Bisset, William T., 4535 Bissonnette, Andrew, 2419 Black, Charles L., Jr., 1943 Black, Kathryn A., 5157 Black, Sherry Salway, 1295 Blackburn, Bob L., 1556 Black Elk, Charlotte, 2883 Blair, Bowen, 3065–66 Blair, Jack, 3357 Blais, M. Jeanne, 548 Blake, James F., 15 Blanchard, David, 349 Blanchard, Rosemary Ann, 1296 Blaustein, Albert P., 16 Bledsoe, Samuel Thomas, 2420 Blend, Benay, 733, 1108 Bliss, Kevin J., 5158 Block, William E., Jr., 5159 Bloeser, Charles K., 4764 Blom, Deborah E., 3067 Blomstrom, Greg, 3748 Bloom, Paul L., 3787 Bloxham, Steven John, 2421, 5160 Blue, Martha, 4977 Blue Cloud, Peter, 1109 Bluehouse, Philmer, 1557, 1645 Bluemel, Erik B., 2972 Blumenthal, Walter Hart, 2422 Blumm, Michael C., 1748, 3499, 3788, 4089, 4473 Blurton, David M., 5161–62 Bobbitt, Chrystal, 1520 Bobroff, Kenneth, 1558 Bodine, John J., 2973–74 Boger, Carl A., Jr., 4536 Boggs, James P., 4269, 4392 Bogoslovskayas, Lydmila, 5200 Bohlman, Bruce E., 2300 Bohm, Fred C., 473 Bolinski, Dorissa, 4537 Bolster, Mel H., 734 Bolt, Christine, 1110 Bolton, Charles S., 549 Bolton, John J., 4538 Bonaparte, John C., 2605 Bond, Jay, 1521 Bond, Reford, 2423 Bond-Maupin, Lisa, 1559, 2031–32 Bonham, Charlton H., 2975 Bonney, W. P., 350 Bonnifield, Paul, 1297 Bonnin, Gertrude, 5425 Books, Richard K., 4270

Boomgaarden, Lynnette J., 3789 Booth, Peter M., 3715 Borbridge, John, Jr., 3647 Borchert, John W., 1522 Bordeaux, Ken, 2803 Bordewich, Fergus K., 17 Borgman, Francis, 1298 Bortner, M. A., 2032 Boston, G. Robert, 2804 Boston, Rob, 2906 Boulger, John V., 677 Bouvier, Tracey M., 4890 Bowekaty, Malcomb B., 3220 Bowen, Julia A., 5163 Bowen, Veronica, 4090 Bowman, Margaret B., 3068 Boxberger, Daniel L., 4091–93 Boyce, George A., 261 Boyce, John R., 5164 Boyce, Katharine Randolph, 3500–3501 Boyd, Julian, 351 Boyd, Thomas H., 3069, 3073 Boyle, Gerald J., 4765 Boylan, Virginia W., 4539 Boyles, Kristen L., 2976 Boyum, William, 5000 Bozarth, Bonnie, 2301 Bracey, Dorothy H., 2033 Bradford, William, 4095 Bradford, William C., 18, 821, 1560, 2302 Bradley, Gerard V., 2907 Bradley, Jennifer L., 4507 Brady, Joel, 2977 Brady, Michael L., 4743 Braithwaite, Charles A., 1166 Brakel, Samuel J., 1646–48 Branam, James T., 4271 Brandfon, Fredric, 1649 Brandt, Janice, 5467 Brann, Amy C., 2606 Brannon, Peter A., 352 Bransky, James A., 975, 1872 Branson, Douglas M., 5165 Brant, Joanne C., 2805 Braunstein, Richard, 2034–35 Braveman, Daan, 1749 Bravo, Karen E., 5301 Bray, Tamara L., 3058, 3070–71, 3106, 3114, 3121, 3133, 3138, 3207, 3058, Brayer, Herbert O., 2424 Breckenridge, Cabell, 3790 Breer, Charles, 4766 Brenneman, Elizabeth, 2990 Brescia, William, 3502 Bresette, Walt, 4239 Breyer, Stephen, 1840 Bricker, David C., 2978 Bridgers, Ben Oshel, 262, 2173 Bridges, Karen, 5166

Bridgewater, Bradley Scott, 4767 Brienza, Susan, 3791 Brietzhe, Paul H., 4540 Briggs, Eric R., 1081, 2174 Bristol, Tim, 5167–69 Britten, Thomas A., 3458, 5453–54 Britton, Sarah, 213, 3620, 3790, 3792–93, 3813, 3818, 3820, 3829, 3892, 3946, 3957, 4036, 4071 Broadbent, Suzanne, 4891 Brodeur, Paul, 2607 Brooks, Richard, 5302 Brookshire, David S., 3794 Broome, Benjamin J., 1299 Bronner, Edwin A., 353 Bronson, Ruth Muskrat, 19 Brooks, Catherine M., 4892 Brooks, Juanita, 4893 Brooks, Samuel D., 2979 Brophy, Alfred J., 5393 Brophy, William, 976 Brosnan, Dolores, 4541 Brothers, Lynda L., 3072 Brown, Aaron R., 2608 Brown, Brian Edward, 2980–81 Brown, Bruce L., 5170 Brown, Caroline L., 5171 Brown, Ellen C., 4768 Brown, F. Lee, 3795–96 Brown, Howard L., 1650 Brown, John B., III, 3075 Brown, Jovanna J., 4096 Brown, Kenny L., 1300 Brown, Lauralyn, 1523 Brown, Loren N., 735–37, 3268 Brown, Margery Hunter, 1387, 1651 Brown, Mark R., 2908 Brown, Ray A., 20, 903 Brown, Robert C., 4769 Browne, William P., 1301 Brownlee, E. Gardner, 1652 Brownwell, Margo S., 3269 Brugge, David M., 1303, 2425 Brunt, David, 4770 Bruun, Rita, 4097 Bruyneel, Kevin, 3270 Bryan, David, 5030 Bryant, Virginia, 354 Bryne, Edward C., 1997 Bryner, William M., 5172 Brzuzy, Stephanie, 4996 Bubrow, Jonathan, 2175 Bubser, Dave, 3743 Buchanan, Allen E., 21 Buchanan, Charles M., 4098 Buchanan, Robert W., 223 Buchin, Joanne, 2609 Buckenforf, Randal G., 4393 Bucy, Pamela, 2610 Buffalo, William, 3503

594 Buffalohead, W. Roger, 904 Bugg, Steven W., 1524 Bullis, Ronald K., 2909 Bundy, David H., 5157 Buntin, Martha, 550 Burch, Ernest S., Jr., 5173 Burch, Jordan, 22 Burchardt, Bill, 4272 Burge, Moris, 1302 Burk, Jerry L., 551 Burk, R. L. Stoney, 4099 Burke, Joseph C., 1841 Burke, Robbie Emery, 2525 Burley, Carl L., 4273 Burling, James S., 2176 Burman, Barbara, 3459 Burness, H. S., 3797 Burnett, Donald L., Jr., 3393, 4100 Burnette, Robert, 1111, 1304 Burnham, Philip, 5437 Burns, Larry Alan Burns, Louis F., 738 Burr, Lance W., 4542 Burr, Sherri L., 3076 Burris, Tracy, 4543 Burt, Larry W., 678, 822, 977, 3458, 3504 Burton, David, 5174–77 Burton, Jeffrey, 1750 Burton, Lloyd, 2982, 3798–3800 Bushnell, David, 2426 Busiahn, Thomas R., 4101 Buthod, Therese, 4894 Byler, Celia, 2983 Bynum, Tim, 2037–38 Byran, Jennifer S., 3394 Byrne, Christopher S., 5178 Bysiewicz, Shirley R., 5118 Cabaniss, John C., 2427 Cable, Keith, 2177 Cadigan, Michael, 1748 Cadue, Ken, Sr., 1102 Cadwalader, Sandra L., 823, 835, 893, 922, 1126, 1195, 1263, 1837, 2438 Cahill, Bryan, 2178 Cahn, Edgar S., 23 Cain, Gordon, 2428 Caldwell, Russell L., 824 Caliguire, Daria, 3505 Callard, Amy, 4274 Calliou, Brian, 3506 Cambra, Rosemary, 999 Cameron, Michael W., 825, 3507 Camp, Gregory S., 263, 739 Camp, Laurie Smith, 2611 Campbell, Ben Nighthorse, 1099 Campbell, Carl, 4103 Campbell, Gregory R., 5001 Campbell, Sarah P., 4394

Author Index Campbell, Susan D., 679 Campbell, Susan Millington, 3801 Campf, Darren M., 2179 Campisi, Jack, 264, 355–58, 784, 978–79, 1009, 1191, 1396, 2612–13, 3271 Canby, William C., Jr., 24–25, 2180 Canfield, George F., 26 Canoe, Lorraine, 265 Cantor, Raymond E., 4771 Capers, Tankia Michelle, 4545 Carillo, Jo, 27 Carleton, Jennifer Nutt, 4772 Carlson, Alvar W., 2429 Carlson, David J., 1112 Carlson, Kirsten Matoy, 1873 Carlson, Leonard A., 740–43, 2614, 3716 Carlson, Sarah-Eva Ellen, 2039 Carlson, Tim, 4546 Carmack, William, 1082 Carpenter, Charley, 4773 Carpenter, Kristen A., 2806, 2984–85, 4546, 5179 Carpenter, Leah J., 1210 Carpenter, William Geoffrey, 359 Carr, Allen Lane, 2303 Carr, Kathleen Marion, 3807, 3816, 3874, 3930 Carr, Robert S., 3077 Carr-Howard, Maxwell, 4548 Carrico, Michael L., 4774 Carrico, Richard L., 2040 Carriker, Robert C., 2617 Carrillo, Jo, 2615 Carroll, Ahnawake, 1305, 3358 Carroll, Jane Lamm, 2041, 2616 Carroll, Peter F., 4275–76 Carson, James Taylor, 552 Carson, Richard M., 2986 Carter, Edward L., 553 Carter, John B., 3802 Carter, Kent, 744, 3272 Carter, Mickale, 2181 Carter, Nancy Carol, 2618, 5031, 5485–88 Carter, Samuel, III, 554 Carter, Truman, 3508 Case, David, 5180–81 Casey, James A., 28 Cash, Jospeh H., 905 Cass, Lewis, 555 Castile, George Pierre, 680, 689, 704, 711, 820, 826–29, 1052, 1083–84, 1093, 1113, 1359, 1751, 5283 Castillo, Edward D., 1114 Cattelino, Jessica R., 4549 Caulfield, Richard A., 5200 Cavanagh, Michael F., 1874 Cave, Rodina, 1211 Caver, Alfred A., 556

Caywood, Elzie Ronald, 1306 Cazedessus, Sanders R., 3460 Cecil, Kelly L., 3509 Celichowski, John, 2807 Chadwick, Bruce A., 41, 1124, 1958, 1976, 2158, 5026 Chamberlain, Sue Abbey, 3803 Chambers, Chad, 4776 Chambers, Reid Peyton, 1212, 1752–53, 2430, 3804–5 Chamblin, Anthony, 4551 Champagne, Duane, 29–30, 212, 1158, 1307–9, 2079, 3506, 3510, 3545–46, 4590, 5312 Chandler, Mark E., 3806 Chaney, Christopher B., 2304 Chaney, Ed, 4104 Chang, Hedy Nai-Li, 4983 Chapin, Kristen, 4105 Chapman, Berlin B., 360–62, 557, 681–85, 745–49, 2431–33, 2619 Chapman, Carye Cole, 2620 Chase, Douglas, 4552 Chatigny, Bradford E., 3511 Chato, Genevieve, 5119 Chaudhuri, Joyotpaul, 830 Chavers, Dean, 5032 Cheatham, Kae, 1115 Checchio, Elizabeth, 3807 Chen, Bess Lee, 4777 Cheshire, Tamara, 4920 Cheski, Cynthia, 1653 Chestnut, Steven, 4277 Cheyfitz, Eric, 1310 Chiago, Carol (see also Lujan, Carol Chiago), 2032 Chibitty, Charles J., 108 Childs, Ryan H., 3808 Chino, Wendell, 4396 Chomsky, Carol, 2042 Chrisbens, Erin Goff, 5182 Christenson, Steven M., 2182 Christie, John C., Jr., 2621–22 Christianson, Cabot, 5157 Christianson, Cynthia Pickering, 5157 Christman, Henry, 3359 Christoffel, Gregory J., 2305 Christofferson, Carla, 5120 Churchill, Ward, 31–34, 363, 1116–18, 1311, 1844, 2434, 2623–25, 4278, 4396, 5304 Claassen, Sharon E., 4778 Claiborne, Louis F., 1754, 1944 Clampitt, Brad R., 364 Clark, Carter Blue, 266, 558, 906, 1259–60 Clark, David S., 1875 Clark, Emmet Robert, 3809 Clark, John G., 762 Clark, Joseph Stanley, 365

Author Index Clark, William G., 4106 Clarke, Patrick, 3461 Clarke, Suzanne, 2435 Clarke, Tracylee, 4397 Clarkin, Thomas, 1085 Clarkson, Gavin, 1654 Clayton, Thomas W., 2183 Clayton, William F., 2043 Clear Sky, Chief, 436 Clement, Julie A., 1525 Clemmer, Richard O., 267, 366, 907, 2436, 2626, 4279–80 Cleveland, Sarah H., 1261 Clifford, James, 3273 Clift, R. Spencer III, 3512 Clifton, James A., 366, 1312, 3274 Cline, Christopher P., 2808 Clinebell, John Howard, 5305 Clinefelter, Jeremy, 1526 Clinton, Fred S., 4281 Clinton, Michael J., 3810–11 Clinton, Robert N., 35–37, 176, 1262, 1755–56, 1869, 1876–77, 1918, 2306–7, 2627–28, 2910, 3513, 4351, 5306, 5394 Clow, Richmond L., 750, 908, 1387, 2044–45, 2184, 3715, 3757, 3760, 3890, 4107–8, 4398, 4433, 4438, 4499, 4500, 4779–80, 5416 Clowser, Don C., 368 Cluett, Jeffrey R., 4399 Clum, John P., 1998 Clute, James, 1313 Clyde, Edward W., 3812 Coan, C. F., 369, 686 Cobb, Daniel M., 4978 Cochran, Steffani A., 4400 Cockerham, William C., 1999 Coen, Barbara N., 980 Coffeen, William R., 5405 Coffey, Wallace, 3078 Coggins, George Cameron, 4109 Cohen, Cynthia Price, 5307 Cohen, Fay G., 1119, 4110 Cohen, Felix S., 38–39, 831, 1314, 1757, 2437, 2629, 3275, 3462 Cohen, Mark S., 2987 Cohen, Warren H., 40, 4895 Coker, William Sidney, 3276 Colby, Bonnie G., 213, 3620, 3790, 3792–93, 3807, 3813, 3818, 3820, 3829, 3892, 3946, 3957, 4036, 4071 Coldebella, Gus P., 2630 Cole, D. C., 559 Cole, D. H., 2631 Cole, Terrence M., 5183 Coleman, Kenneth, 370 Coleman, Michael C., 751 Coleman, Patrick, 371 Coleman, Steve J., 4553

Collier, John, 112, 832, 909–11, 928, 932, 5455 Collier, Peter, 41 Collins, Camala, 2988 Collins, Cary C., 4111 Collins, Richard, 4781 Collins, Richard B., 42, 1655, 2308, 2989, 3395, 3814–15, 4781 Colombi, Benedict J., 4112 Colson, Elizabeth, 268 Colt, Peter Thrush, 2046 Colton, David S., 4782 Colton, Harold Sellers, 1561 Colton, Milo, 2309 Combs, Mary J., 4113 Commission on State–Tribal Relations, 1496 Condra, G. E., 560 Conkle, Daniel O., 2809 Conlan, Czarina C., 372, 1657 Conley, John M., 3079 Conn, Stephen, 1562, 1626, 5184–88, 5202, 5212–15 Connell, Colleen, 4783 Connelly, Michael E., 4896 Connors, Joan F., 5189 Connot, Mark J., 5002 Conser, Walter H., Jr., 561 Constans, Judith W., 4114 Conte, Christine, 5119 Contreras, Kate Spilde, 4557 Conway, Thomas G., 373 Coodey, Tiffany, 1316 Cook, Charles A., 2632 Cook, Dennis C., 3816 Cook, Jessee, 1213 Cook, Samuel R., 833, 981 Cook, Stacy, 4785 Cook, Tom, 3515 Cook-Lynn, Elizabeth, 1214, 2633, 3221 Coombe, Rosemary J., 5308 Cooney, James B., 4420 Cooper, Charles M., 752 Cooper, Margaret Baba, 5064 Cooper, Robert L., 3080 Cooper, Sarah, 3516 Cooper, William Bennett, III, 4558 Cooter, Robert D., 1658–59 Copus, Gary D., 5162, 5254 Corbett, William P., 5438 Cordeiro, Eduardo E., 4559 Core, M. Allen, 1878 Corker, Charles E., 3817 Corn, James F., 562 Cornell, George, 4560 Cornell, Stephen, 43–44, 1317–19, 1497, 1716, 2518, 3494, 3507, 3517–32, 3596, 4559 Corntassel, Jeff J., 3360 Correa, Floyd R., 3533

595 Cortelyou, George H., 4979 Cortner, Hanna J., 4401 Cosens, Barbara A., 3818–24 Costello, Nancy A., 1660 Costo, Rupert, 45, 3295, 3825, 4402 Cotroneo, Ross R., 753 Coulter, Robert T., 46, 1759, 1984, 2185, 2438, 2634, 3396, 5309–10 Coursen, David F., 3826, 4403 Cousineau, Phil, 2883 Covington, George M., 4206 Covington, James Warren, 374, 2439 Cowger, Thomas W., 1120–21 Cox, Amy L., 4561 Cox, Bruce A., 2440 Cox, Michael D., 4562 Cox, Thomas R., 1320 Coyne, Randall, 1122 Crafts, Amy, 2186 Craig, Carol, 4115 Craig, Jeneva, 3744 Craig, Sandra Jo, 4786 Cramer, Rene’e Ann, 982, 4563 Crammond, James D., 3807, 3816, 3874, 3930 Crane, Daniel M., 2635 Crane, Jolene, 2636 Crass, Karen, 3827 Craven, Rex P., 2810 Crawford, G. D., 2310 Crawford, Richard W., 2048 Crawford, Suzanne J., 3081 Cree, Linda, 2187 Creel, Von Russell, 1760, 2049 Crenshaw, Ronald W., 2050 Croman, Kelly S., 5003 Cross, John, 2051 Cross, John T., 5311 Cross, Raymond, 47–48, 1215, 2441, 2990, 3534, 4404, 5033 Cross, Suzanne, 4932 Crosse, Murray L., 2188 Crow, Margaret, 754 Crow Dog, Leonard, 1123 Crowther, Wendy, 3082 Crum, Steven, 563, 5312, 5439 Crum, Steven B., 4564 Crump, Richard S., 1945 Cruz, Christine Zuni (see Christine Zuni), 1563, 1946–1947 Crystal, Susan E., 3415 Cubberley, Douglas B., 2311 Culter, Regina, 4405 Cummings, André Douglas Pond, 3222 Cummings, R. G., 3797 Cunningham, Thomas J., 2811 Currie, David P., 4565 Curry, Lucy A., 3277 Cushing, Charles S., 1761 Cushman, Robert Fairchild, 5034

596 Cusick, Steve, 3083 Cutter, Donald C., 2637 Cuykendall, Clydia J., 4787 Cypress, Billie, 983 Czech, Brian, 4116–17 Daes, Erica-Irene, 2991, 5313–14 Dahl, Eric William, 2992 Dahl, Kathleen A., 984 Daily, David W., 912 Daily, Harry P., 1762 Daily, Tony, 3502 Dale, Edward Everett, 3717 Dale, Michael J., 1879, 4897 Dale, Nina, 2638 Dallam, H. Elizabeth, 5315 Damji, Feyrouz, 2442 Dane, Perry, 49 Danforth, Sandra C., 2639 Daniel, Michelle, 1564 Danahy, Scott D., 1527 Danziger, Edmund Jefferson, Jr., 375, 687, 1086, 5096 Darian-Smith, Eve, 4566–67 Daugherty, Danelle J., 2052, 4898 Daugherty, Dani, 3718 Davidson, John H., 3828 Davidson, Paula A., 5426 Davidson, Thomas E., 3278 Davies, Bruce, 3535 Davies, Glen E., 4788 Davies, Wade, 3279, 5004 Davis, Edward, 376 Davis, J. B., 1565 Davis, John Joseph, 2640 Davis, Kenneth Penn, 564 Davis, Laurence C., 1661, 2189 Davis, Michael, 1301 Davis, Russell, 4282 Davis, Shelton H., 4308 Davis, Toni Hahn, 4899 Davisson, Russell W., 3397 Dawson, Susan E., 4283 Day, Christopher W., 1528 Day, Priscilla A., 4681 Day, R. Morris, 377–78 Day, Robert C., 41, 1124, 1958, 5026 Day, Stuart R., 4789 Dayish, Frank, 2883 D’Azevedo, Warren L., 366, 1369, 1446, 3600 Dean, S. Bobo, 1087–88 Dean, Stephanie, 4790 Debo, Angie, 269, 985, 1321–22 Decker, Craig A., 379 Decker, Mary J., 4045 DeCoteau, Jerilyn, 3829 Deegan, Michael N., 3398 Deer, Ada, 838, 1426 Deer, Sarah, 1662, 1974, 2076, 5121–22

Author Index Dees, Harry, 5489 Deganan, June I., 5190 Dein, Judith Gail, 4406 DeLaCruz, Joe, 1089 de la Hunt, Jill, 380 DeLashment, W. Pemble, 2993 Delekta, Diane H., 4118 Dellwo, Robert D., 3830–31, 4791 Deloria, Ella, 50 Deloria, Philip S., 1090, 1125, 1880–81, 1918, 1948–49, 3280, 3945, 4351, 4407 Deloria, Sam, 51 Deloria, Vine, Jr., 52–63, 381–82, 431, 438, 823, 830, 834–37, 860, 893, 913, 922, 1126–27, 1195, 1263, 1357, 1663, 1837, 2438, 2641–42, 2812–15, 2883, 2994, 3031, 3084, 3373, 3701, 4057, 4119, 5349 Delorme, David P., 986 DeLuca, Richard, 1128 DeMallie, Raymond J., 383–84, 1454, 1585, 3536 De Meo, Antonia M., 3085 Demolli, Frank A., 2190 DeMontigny, Myra A., 4961 Dempsey, Jeffrey A., 4568 Dempsey, Sharon, 987 Dennie, Christian, 3223 Denson, Andrew, 1323 De Puy, Henry F., 385 de Raismes, Joseph, 3399 d’Errico, Peter, 65, 1845 DeRosier, Arthur H., Jr., 386–88, 565–68, 5097 Desmond, Brenda C., 1651 Deutsch, Herman J., 2443 De Valigner, Leon, Jr., 111 de Verges, George, 2191, 2912 DeVleming, John, 4120 DeVorsey, Louis, Jr., 2444 Dewes, W., 1324 De Young, Tim, 3832 Diamant, Adam, 3537 DiCastri, Frank W., 2445 Dick, A. Robert, 4284 Dickason, Olive P., 5321 Dickinson, Marke, 3538 Diekemper, Tracy A., 4121 Diener, Colleen M., 4408 Dieterich, Mary Frances, 4455 Dietrich, Steve E., 3539 Dill, John C., 2053 Dillingham, Brint, 5005 Dillingham, Terese, 5191 Dillsaver, Joe D., 2312, 3745, 4980 DiMatteo, Larry A., 3719 Dindinger, F. J., II, 1530 D’Innocenzo, Pamela, 3086 Di Pietro, Susanne, 5192–93

Dixon, Susan N. Harris, 4122 Dobbs, G. Byron, 1763 Dobyns, Henry F., 914, 1950, 2454, 3833 Dockins, William S., 4792 Dockser, Amy, 1951 Doerksen, Harvey, 4015 Doerr, Brian M., 2054 Doherty, Robert, 270, 4123 Dolan, Brian T., 4285 Dombrowski, Kirk, 5194–95 Donahue, Debra L., 4409 Donaldson, Laura E., 2055 Dongoske, Kurt E., 3087, 3127, 3196, 3201, 3219 Donohue, Gary W., 4569 Doran, Kwinn H., 3540 Doremus, Christine A., 4124 Dorsay, Craig J., 2913 Dossett, John, 1504 Doty, Peggy, 5470 Doty, Sharon Womack, 2056 Dougherty, Terence, 3224 Dowell, Steven R., 3088 Dowling, Thomas F., 2313 Downer, Alan S., 3089, 3127, 3196, 3201, 3219 Downes, Randolph C., 915, 2643 Downey, Roger, 3090 Downs, Ernest C., 271, 988, 2447 Doyel, David E., 3091 Doyle, John T., 2914 Dozier, Jack, 688, 753, 755, 2448 Drake, James, 2058 Drinnon, Richard, 989 Drucker, Paul M., 3834 Druke, Mary A., 390, 400, 437 Drummond, A. M., 391 Du Bey, Richard A., 4410–12 DuBoff, Leonard D., 3225 DuChateau, Andre Paul, 1325 Ducheneaux, Frank, 272, 916 Ducheneaux, Karen, 2692 Duck, Aaron S., 2192 Dudas, Jeffrey R., 66 Duffié, Mary K., 5316–17 Duffield, Lathel F., 569 Dufford, Philip W., 3835 Duffy, Patrick K., 3092 Dugger, Connie, 4238 Duin, Virginia Nolan, 4981 Dukelow, Gayle L., 2644 DuMars, Charles T., 2314, 3836–37 Dumont, Clayton W., Jr., 3093 Dumont, James, 2059 DuMonteir-Pierre, Debra, 4900 Duncan, DeWitt Clinton, 756 Dunn, Robert G., 2915 Dunstan, Roger, 4570 Dupont, Jerry, 5490 Dupris, Joseph C., 4125

Author Index Duran, Elizabeth, 392 Duran, James, Jr., 392 Durham, Jessie Huff, 1091 Durhan, W. Cole, 67 Duryea, Michelle, 1664 Dussias, Allison M., 1764, 2193, 2645, 2817, 3094–95, 3226, 5035 Dustin, Fred, 393–94 Dutfield, Graham, 3251 Duthu, N. Bruce, 68, 694, 990, 1498, 4351, 5471 Dworkin, Judith M., 5395 Dwyer, William E., 2646 Dye, Karen, 757 Dyre, Jon T., 5065 Eadington, William R., 4546, 4551, 4571–72, 4585, 4588, 4667, 4670, 4691, 4694, 4697, 4709, 4727–29, 4732 Eads, Sharon, 2449 Easter, K. William, 3732 Easton, Lea Ann, 2913 Easton, Stephens D., 2060 Ebbin, Syma A., 4126 Ebright, Malcolm, 3839 Ebbot, Elizabeth, 317 Echohawk, John E., 3805 Echohawk, Larry, 4793, 4901 Echo-Hawk, Roger C., 3096–97 Echo-Hawk, Walter R., 2818–19, 2883, 3096–97, 3177, 3200 Eck, John Terrance, 3235 Eckersley, Brent, 2450 Edgerton, Robert B., 991 Edmondson, Ed, 1665 Edmondson, June E., 1665 Edmunds, R. David, 395, 570–71, 1103, 1125, 1152, 1160, 1179, 1203, 1206, 1281, 1326, 1334, 1361, 1364, 1373, 1469, 1476, 1990, 2061, 3542, 5046 Edwards, John, 1566 Edwards, Newton, 3543 Egan, Ewell E., Jr., 1765 Egede, Ingmar, 5200 Eggan, Fred, 64 Eguiguren, A. R., 1092 Ehle, John, 572 Eicher, Carl K., 964, 3544 Eichstadt, Richard Kirk, 4127 Eisenstadt, Eric, 4128 Eisgruber, Christopher, 2820 Eisler, Kim Issac, 4574 Eklund, Allsion Fabyanske, 4575 Elbridge, Coochise, 1695 Elliott, Randall, 5427 Ellis, Hal William, 4794 Ellis, Mark R., 2000 Ellis, Richard N., 1129, 3361, 5456 Ellison, W. H., 335

Ellisor, John T., 573 Ellwanger, Kimberly T., 3746 Embree, John F., 839 Emerson, Haven, 992 Emory, Meade, 5196 Endreson, Douglas B. L., 1327, 1666, 1766 Engle, Karla, 1882 Engstrand, Iris Wilson, 2451 Engstrom, Richard L., 3362 Ensworth, Laurie, 2995 Epp, Todd D., 2062 Epstein, Richard A., 2648 Erdoes, Richard, 1105, 1123 Erhart, Karl Jeffery, 2315 Erickson, Jon D., 3545–46 Erickson, Ralph, 2452 Erickstad, Ralph, 1883 Erickson, Robert, 3840 Ericson, Robert, 3401 Ericsson, Robert J., 2649 Erlich, Richard, 3547 Ertman, Martha M., 3115, 3204 Erwin, Greagory Dubois, 3704 Esber, George S., Jr., 1093 Esmay, Niki, 4129 Espeland, Wendy (Nelson), 4413, 5406 Essin, Emmett M., III, 396 Estep, Raymond, 574 Estes, Charles, Jr., 1767 Estill, A. Emma, 2453 Estin, Ann Laquer, 1263 Etchart, Graciela, 3756 Euler, Robert C., 2454, 2650 Evans, Michael J., 3188, 4490 Evans, Nancy H., 4286 Evans, William Edward, 2063 Evans, William L., 3098 Evans, W. McKee, 273 Evans Horse, Billie, 274 Everett, A. H., 1846 Ewen, Alex, 4576 Faben, Charles H., 5425 Faben, W. W., 575 Faber, William O., 1328 Fabish, Peter, 2316 Factor, Kenneth, 2317 Fadden, Stephen, 993, 3099, 4130, 4414 Fadell, Gary, 4131 Fagan, Ed, 2383, 5510 Fahey, Richard P., 1667 Faiman-Silva, Sandra, 275, 3548–49 Fairbanks, Robert Alvin, 69, 994, 1567, 5006–7 Falcone, Barbara S., 2996 Falk, Donald, 2997 Falkowski, James E., 70, 5290 Farley, Christine Haight, 5318 Farnsworth, Wayne R., 3463, 4751

597 Farr, William E., 397, 3100 Farrand, Max, 2455 Faulhaber, Dwight L., 4795 Fausett, Rory Snow Arrow, 2374, 4474, 5491 Fausz, J. Frederick, 576 Favor, Lesli J., 1329 Fay, George E., 398, 1330 Febbraio, Samuel, Jr., 4796 Feher-Elston, Catherine, 2456 Feimer, Steve, 2034, 2093 Feinman, Clarice, 2001, 5123 Feinstein, Marc S., 4577 Felch, Alpheus, 399 Feldman, Stanley G., 1884 Feldman, Stephen M., 1768, 3841, 4415, 5418 Felsenthal, Steven A., 995 Fenelon, James V., 276, 4578–79 Fensten, Jos. J., 577 Fenton, William N., 390, 400, 437 Feraca, Stephen E., 71 Ferguson, Christina D., 3402 Ferguson, Karen, 4132 Ferguson, T. J., 1331, 3022, 3101–2, 3158 Fernandez, Ferdinand F., 3464 Ferrara, Peter J., 1332 Ferrell, Susan J., 4982 Fershee, Joshua, 72 Festa, David H., 3550 Fetzer, Clark B., 3842 Fetzer, Philip Lee., 1769 Fey, Harold E., 996 Feyerham, William H., 2139 Fick, Matthew L., 3843 Fickinger, Paul L., 2457 Field, Les, 997–99 Field, Oliver P., 1770 Fikentscher, Wolfgang, 1658–59 Fikes, Jay C., 1333 Findlay, John M., 689 Fine, Adele, 1216 Fine-Dare, Kathleen S., 3103 Finger, John R., 277, 578–80, 1000, 3281, 5457 Fink, David A., 3619 Finkelstein, Norman, 1848 Finley, Barbara, 5197 Finney, Frank F., 690, 5066 Finney, Frank F., Sr., 4287 Finnigan, Richard A., 4133 Fiorentino, Susan R., 4134 Firkus, Angela, 4580 Fischer, Ann, 278 Fish, Jeff, 2998 Fish, Mary, 3651 Fisher, Andrew H., 401, 4135–36 Fisher, Burton R., 969 Fisher, Louis, 2821

598 Fisher, Robert L., 402 Fisher, Sarah, 2195 Fisher, Todd, 3844 Fiske, Terry Noble, 4288, 4797 Fitchett, Allen D., 2458 Fitzpatrick, Brian Casey, 4581 Fitzpatrick, Jeremy R., 1217 Fixico, Donald L., 279, 1001, 1334, 4138, 4289, 4416, 5098 Fjetland, Conrad. A., 4139 Flacks-Jatta, JoHanna G., 3465 Flanagan, John K., 403 Flanagan, Sharon P., 3282 Flanagan, Thomas E., 3483, 3485, 3554, 3567, 3581, 4617 Flanders, Nicholas E., 5198 Fletcher, Alice C., 758 Fletcher, Carrie E., 1218 Fletcher, Matthew L. M., 1953, 3227, 4798, 5067, 5472 Flies-Away, Joseph Thomas, 1668, 3283 Flood, Maura, 3104 Florio, Roger, 3845 Flowers, Ronald B., 2318 Flynn, Clinton R., 73 Fodor, Martha A., 4799 Foerster, Arthur F., 2196 Fogelson, Raymond D., 264 Fogleman, Amelia A., 3551 Foley, William E., 2065 Folk-Williams, John A., 3846–49 Folsom, Roy D., 2066, 4140, 5036 Folts, James D., 5492 Fonaroff, L. Schuyler, 3720 Fontana, Bernard L., 759, 3617 Forbes, Gerald, 581, 2459, 4290–91 Forbes, Jack D., 74, 280, 1094, 1130 Forbes-Boyte, Kari, 2999 Ford, Cynthia, 1954 Ford, Marilyn J. Ward, 5199 Foreman, Carolyn Thomas, 404 Foreman, Grant, 405–6, 582–83, 691, 2067–68, 2460, 5068, 5493 Foreman, Richard L., 3850 Formanek, Rjean K., 2651 Forrester, Garry, 1782 Forsgaard, Karl, 4141 Forslund, Morris A., 1999 Forsyth, Marion P., 3055, 3144, 3149, 3173–74, 3182 Fort, Denise D., 3851 Fort, Timothy L., 2822 Fortunate Eagle, Adam, 1131–33 Foster, Doug, 2069 Foster, Hama, 5209 Foster, Henry W., 4902 Foster, Karen L., 4800 Foster, Lenny, 2819, 2883

Author Index Fouberg, Erin Hogan, 281, 644, 692, 1491–92, 1514, 4126, 4485, 4710 Fowler, Loretta, 1335–39 Fox, Ben E., 4142 Fox, Catherine, 4143 Fox, Michael J., 3105 Francis, Harris, 774, 3012 Francisco, William Payne, 5428 Francisconi, Michael Joseph, 3552 Franco, Jere’ (Bishop), 3364, 5458–59 Franks, Kenny A., 407–8 Frantz, Klaus, 75 Fraser, Cami, 5473 Frederick, Davis T., 409 Fredericks, John, III, 76, 760 Fredericks, Thomas, 3852 Free, Kalyn Cherie, 2070 Freedman, Eric, 4417 Freeman, Milton M. R., 5200 Freitag, Christian M., 3403 Frichner, Tonya Gonnella, 2883 Frickey, Philip P., 5319, 5396 Freedman, Eric, 3000 Freimund, Jeffrey, 2197 French, David, 282, 1002 French, Katherine, 282, 1002 French, Laurence, 77–78, 115, 1813, 2017, 2051, 2071–75, 2088, 5069 French, Rebekah, 3001 French, T. Barton, Jr., 4582 Fretz, Burton D., 3404 Frickey, Philip P., 79, 840, 1265, 1771–72 Friedlander-Shelby, Velda, 1340 Friedman, Howard M., 2652 Friedman, Robin A., 1781 Friesen, Carol, 1885 Fritz, Henry E., 584, 1134 Frizzell, George E., 3365 Frizzell, Kent, 2198 Froelich, Cezar M., 4583 Froehling, Oliver, 2287 Fromson, Brett Duval, 4584 Frost, Lynda, 5320 Frye, Paul E., 3553 Fuller, Lauren L., 5070, 5201 Fuller, Lynn, 3721 Fulton, Dorothy, 2128 Fulwood, S. Leigh, 4802 Funk, Karen J., 3193 Funke, Karl A., 3284, 5397, 5510 Furber, Bradley B., 917, 2240 Furgal, Christopher, 5273 Furst, Gary C., 2823 Gabbidon, Shaun L., 2023 Gaebler, Helen A., 2319 Gage, Duane, 585 Gaillard, Frye, 5037

Gainer, Phyllis Wilson, 4802 Galanda, Gabriel S., 80 Galbraith, Crag S., 3554 Gallagher, Brian D., 4903 Gallerito, Cecilia, 5008 Galligan, Thomas C., Jr., 4144 Galloway, William C., 3853 Gamino, John, 1955, 3466 Ganje, James, 1883 Ganter, Granville, 2653 Garbarino, Merwyn S., 283 Garber, Bart K., 5186, 5202 Garcia, F. Chris, 1354 Garcia, Nora, 4585 Gardner, Peter J., 3002 Garitty, Michael, 4586 Garner, Suzanne, 4904 Garner, Van Hastings, 410 Garonzik, Daina, 1886 Garrett, Robert D., 1568 Garrison, Emma, 2199 Garrison, Tim Alan, 586–87 Garroutte, Eva Marie, 3285 Garrow, Carrie E., 1443, 1668, 2076 Garry, John, 1341 Garry, Joseph R., 928 Garry, William C., 2320 Gartland, John C., 4145 Garza, Christina E., 3106 Gasaway, Laura N., 5494 Gates, Charles M., 348, 411 Gates, Merrill Edward, 761, 3286 Gates, Paul Wallace, 762, 841, 2461 Gatliff, John, 2824 Gaufin, Sam O., 3854 Gaupp, Anna-Emily C., 3555 Gave, Howard B., 2077 Gearing, Fred, 284 Geb, John, 2825 Gede, Thomas, 4587 Gedicks, Al, 4292–93 Gedicks, Frederick Mark, 2826 Geier, Deborah A., 81 Gentry, Carole M., 1345 George-Kanentiio, Doug, 436, 2883 George, Keller, 3556 George, Wendell, 4588 George, William H., 4920 Gerber, D., 5262 Gerdes, Karen, 4589 Gerrard, Jessica, 2200 Gerstenblith, Patty, 3003 Gestel, Allan Van, 2654–55 Getches, David H., 82, 1342, 1773–74, 3855–57, 4418, 5203 Getty, Harry T., 3722 Ghere, David L., 2078 Gibbens, Daniel G., 1400 Gibbons, Francis M., 4294

599

Author Index Gibeaut, John, 1219 Gibrusy, John, 1669 Gibson, Arrell Morgan, 279, 588, 763, 906, 1008, 1082, 1108, 1150, 1343, 2462–63, 2917, 3322, 3450, 4295 Gibson, Michael M., 2464 Gibson, Wayne Dell, 589 Giffen, Helen S., 693 Gilbert, William H., 2465 Gilbreath, Kent, 3557 Gilcrest, Debra Thatcher, 5204 Gill, E. Ann, 1135 Gillingham, John, 3004 Gillingham, John W., 5495 Gilstrap, William G., 2259 Gil-Swedberg, Marta Cecilia, 3520 Gingrich, Jennifer, 3747 Gingrich, Ronald, 3492 Gips, Robert L., 3558 Gitlin, Martin W., 3228 Giudici, James C., 4146 Glass-Sirany, Sandra, 2234 Glauner, Lindsay, 842 Goeppele, Craighton, 2201 Goffin, Glenn M., 4147 Gold, David I., 1956 Gold, Larry, 1635, 1675, 2009, 2025, 2033, 2128, 2144, 4213, 4470, 4682, 5229 Goldberg-Ambrose (Goldberg), Carole E., 1344–45, 1670, 2079, 2202–4, 3107, 3287, 3467, 4590–91, 4803, 4905 Goldin, Nicholas S., 4592 Goldman, Patti, 2466 Goldsmith, Donna, 4906–7 Goldstein, Edward S., 3229, 3559 Goldstein, Jerry R., 1781 Goldstein, Lynne G., 3108, 3144 Goldstein, Michael S., 1671 Gonzales, Tirso A., 4419 Gonzalez, Ellice B., 3288 Gonzalez, Gerald T. E., 2205 Gonzalez, Mario, 2206, 5009 Goodby, Robert G., 3109 Gooding, Susan Staiger, 2827, 3289 Goodman, Ed, 4148 Goodman, Edmund J., 3858 Goodman, James M., 2467, 3560 Goodnow, Frank J., 4804 Goodrich, Chauncey Shafter, 285 Gordon, Chad M., 4593 Gordon, Leon M., II, 590 Gordon, Sarah B., 3005 Gordon, Suzanne, 4296 Gordon-McCutchan, R. C., 3006 Gorman, Peter W., 4908 Gorman, W. D., 3797 Gormley, Donald C., 2656

Gough, Robert, 3561 Gould, Diane Brazen, 2828 Gould, Larry A., 2002–3 Gould, L. Scott, 1775–76, 2321, 3290 Gover, Kevin B., 286, 1499, 2207, 3405, 3562–63, 3859, 4420–21, 4489, 4877 Grab, Susan Evelyn, 3406 Graber, Dorothy, 3110 Graber, Kay, 3338 Graburn, Nelson H., 5205 Graebner, Norman Arthur, 2468 Graening, Paige, 3860 Graham, Christopher P., 2359 Graham, Hugh Davis, 1136 Graham, Lorie, 3564 Graham, Lorie M., 4909–10 Granen, Michael R., 3407 Grant, J. A. C., 2208 Grant, Kenneth, 3505 Grant, Michael, 4594 Gravitt, Winnie Lewis, 1975 Gray, Janet Davis, 4149 Green, Donald E., 2080 Green, Elizabeth, 918 Green, Ernestene L., 3053, 3101 Green, Jess, 4595 Green, Jessie D., 83, 4911 Green, L. C., 1220, 5321 Green, Michael D., 591–637 Green, Michael K., 1829, 1857 Green, Robert D., 4150 Greenawalt, Kent, 2829 Greene, Abner S., 2916 Greene, Brian M., 4596 Greene, Bruce, 4151 Greene, Helen Taylor, 2023 Greenbaum, Susan, 1003 Greenleaf, Richard E., 2469 Gregory, David L., 2830 Gregory, Hiram F., 3565 Griffin, Rayanne J., 3007 Griffith, Alanah, 1887 Griffith, Gwendolyn, 3861 Griggs, John W., 3111 Grijalva, James M., 694, 3862–63, 3945, 4410 Grim, John A., 4419 Grimm, Lydia T., 3008 Grimsrud, Richard M., 3566 Grinde, Donald A., Jr., 592, 843, 1345–48, 3112, 4422 Grinnell, George Bird, 2470 Grobsmith, Elizabeth S., 1004, 2081–83 Grogan, Susan, 1672 Gross, David W., 2657 Gross, Emma R., 1095 Gross, Harold M., 2471 Gross, Eric Kenneth, 1673

Gross, Michael Paul, 1096, 1957, 5038–39 Gross, Winifred T., 4297 Grossman, George, 5496 Grossman, George S., 84 Grunsted, Shelly, 5071 Gubin, John P., 2658 Gubler, Brent H., 2322 Gulliford, Andrew, 3113 Gump, James O., 5322 Gupta, Rupa, 5323 Guzman, Christine, 4597 Grunsted, Shelly, 1888 Guenther, Jerry D., 4487 Guenzel, Robert C., 2659 Guerrero, Manuel, 4912 Guerrero, Marianna, 3864 Guerrero, Marie Anna Jaimes, 5124 Guest, Richard, 3230 Guggenheim, Jack Achiezer, 3231 Guhin, John P., 1266 Guilfoyle, Michael H., 1555 Guillemin, Jeanne, 1136 Gulig, Anthony G., 85 Gunn, Steven J., 1889, 2323 Gunning, S. Gail, 5429 Gunter, Dan, 1005 Gunter, William B., 2660 Gunther, Erna, 3232 Gunther, Gerald, 1500 Gunther, Vanessa, 2084 Gurich, Noma D., 2085, 2324 Gurr, Ted Robert, 1136 Gustavsson, Nora S., 4932 Gutfeld, Arnon, 1777 Guthals, Joel E., 2209 Guttman, Allen, 593 Guyette, Susan, 5072 Gwydir, R. D., 594 Haake, Claudia, 412 Haas, Johnathan, 3074, 3114 Haas, Theodore H., 86, 919, 928, 1349, 2472 Haberfeld, Steven, 5440 Haberfield, Steven, 1350, 1674 Hacker, Patrick E., 2210 Hacker, Peter R., 413 Haddock, David D., 1531, 1778, 3567 Haddon, Sam E., 2473 Hadwiger, Don F., 4598 Haensly, Thomas F., 4152 Haes, Brenda L., 595 Hafen, P. Jane, 1137 Hagan, William T., 87, 414, 695, 764–65, 844, 1138–39, 1351, 2004, 2474, 2661–62, 3291 Haiku, William J., Jr., 3233 Hain, Paul L., 1354

600 Haines, Francis, 845, 2663 Halbritter, Ray, 3568, 4547 Hall, Edwin L., 2086 Hall, Emlen G., 4835 Hall, Gilbert L., 1221, 2087 Hall, Jan Erik, 3723 Hall, Scott C., 5390 Hall, Thomas D., 88, 1778 Halliburton, Janet, 1569 Halm, Lindsay, 4153 Halverson, Lowell K., 1958, 1976 Hamilton, James, 1370 Hamilton, James T., 1222 Hamilton, Marci A., 2831–32 Hamlin, Thomas, 4805 Hammond, Mary Mead, 3865 Hampton, Carol, 596, 2917 Handlin, Oscar, 2664 Haner, Jennifer Smith, 4423 Hanks, Jane Richardson, 1570 Hanely, Pat, 5206 Hanna, Tassie, 1779, 3569 Hannah, D. Jay, 1352 Hannum, Hurst, 5324 Hanold, Jerilyn A., 2328 Hansen, Kenneth C., 974 Hansen, Sandra, 2211 Hanson, Randel, 5441 Hanson, Randel D., 2665, 3570 Hanson, Stephen Cosby, 2666 Hannay, Felicity, 3875 Hannum, Eric, 3866 Hansen, Adrian N., 3867 Harbison, John S., 3868, 4424 Hardin, John T., 3408 Hare, John C., 3869 Hargreaves, Margaret Barnwell, 4983 Hargrett, Lester, 1353 Harjo, Suzan Shown, 1223, 2833–34, 3116, 3177, 3366 Harlan, E. R., 920 Harmon, Alexandra, 766, 1140, 3292–93, 5099 Harmon, George D., 1224 Harper, Allan G., 767, 928, 2475, 3571, 5407 Harper, Keith, 2325 Harper, Susanne Banta, 696 Harriman, Edward A., 1849 Harriman, Helga H., 3572 Harring, Sidney L., 85, 1571, 1780, 2088–89, 2326, 5207 Harris, Angela P., 5125 Harris, Arthur, 4298, 4425 Harris, Cheryl I., 3294 Harris, David J., 3117 Harris, Frank H., 597 Harris, Fred R., 1354 Harris, James J., 3573 Harris, Kathryn, 2835

Author Index Harris, LaDonna, 1141, 1354 Harris, Richard R., 3748 Harrison, Jill M., 4324 Harrison, John S., 2476 Harsha, William Justin, 89 Hart, E. Richard, 697, 768, 1006, 1331, 2572, 2667–71 Harte, John J., 1890, 2212 Hartman, Paul J., 4866 Harvey, Elizabeth, 2327 Harvey, Irene K., 1267 Harvey, Sioux, 3574, 4599 Hasian, Marouf, Jr., 2090 Hasday, Lisa R., 1532 Haskew, Derek C., 846 Haslam, Connie K., 4600 Hassrick, Royal, 5074 Harding, Sarah, 3115 Hatch, Mike, 2328 Haugen, David M., 4601 Haugestad, Anne K., 3709 Haught, R. Steve, 2324, 2672 Haupt, Barbara, 2477 Haupt, Robert J., 5074 Hauptman, Laurence M., 90, 287, 357, 415, 436, 598, 606, 698, 769, 784, 921–22, 978, 1007–9, 1142–45, 1191, 1268, 1396, 1493, 1501, 2478, 2673–75, 2703, 5492 Havard, James J., 4496 Hawkinson, Ella., 416 Hawley, Brian A., 4154 Hawnsly, Sharon I., 3130 Haycox, Stephen W., 5208–9 Hayes, Jerry G., 5075 Haynal, Patrick, 1010 Haynes, James B., 5210 Hayter, Earl W., 599 Hazeltine, Sheri L., 5211 Hazlett, Maril, 5084 Head, Amy, 4602 Heady, Brian, 2836 Hearne, David W., 23 Heaston, Michael D., 5076 Heath, Joseph J., 4806 Hecht, Robert A., 1146, 3009 Hedger, Jeff, 4807 Heidler, David S., 600 Heidler, Jeanne T., 600 Heilbron, Bertha L., 417 Heimann, Robert K., 5077 Heinecke, Peter S., 5391 Heinze, Andrew R., 699 Heinzman, Ruth H., 5325 Heisey, Geoffrey C., 2329 Heisinger, Barbara B., 5499 Heizer, Robert F., 335, 418, 1114, 2676 Helton, Taiawagi, 1355, 3870 Henderson, Al, 3575–76, 4299 Henderson, Archibald, 419

Henderson, Eric, 1011, 3381, 4603 Henderson, James Youngblood, 11, 1642, 2295, 2412, 2479, 4262, 5009, 5040 Henriksson, Markku, 5326 Henry, Jeannette, 45, 3057, 3295 Henslick, Harry, 420 Henson, Eric, 3577, 5010 Hermann, Christopher R., 3871 Her Many Horses, Danielle, 923 Hermes, Katherine A., 2213 Herrera, Jessica R., 3234 Herring, Joseph B., 601 Hershberger, Mary, 602 Hertzberg, Hazel W., 1147–48 Herz, Richard, 5327 Herzberg, Stephen J., 1012–13 Hess, Danielle, 2837 Hesse, George R., 3872 Hester, Thurman Lee, Jr., 91 Hibbert, Michelle, 3118 Hick, Carter W., 4604 Hickey, Michael M., 3873 Hicks, Sarah, 1504 Hietter, Paul T., 2091 Higginbotham, C. Dean, 3119 Higgins, Frank B., 5328 Hightower, Michael J., 4300 Highwater, Jamake, 3296 Hilfinger, Alisa S. H., 3153 Hill, Burton S., 421 Hill, Gerald L., 1959 Hill, James D., 3749, 3874 Hill, Jamie, 3578 Hill, Kathleen S., 4125 Hill, Richard, 1356, 4605 Hill, Richard W., Sr., 3120–21 Hillhouse, William A., II, 3875 Hilliard, Sam B., 422 Hinsley, Curtis M., Jr., 3122 Hintz, James R., 1891 Hippler, Arthur, 5187–88, 5212–15 Hirschfield, Martha, 5216 Hobbs, Charles A., 1781, 4155–56 Hocker, Anne Pearse, 315, 1186 Hodge, Ronald A., 2677 Hodgson, Dorothy, 1149 Hoebel, E. Adamson, 1014, 1572, 1580, 5217 Hoerig, Karl A., 2480 Hoffman, Amy R. Pivetta, 2215 Hoffman, Fred, 4941 Hogan, Lawrence J., 2092 Hogan, Thomas E., 2481 Hoig, Stan, 423, 603 Hoikkala, Päivi H., 5126 Holland, Lauren, 4426 Holland, Reid A., 604 Hollinger, Joan Heifetz, 4913 Holly, Marilyn, 1675 Holford, David M., 770

Author Index Holm, Tom, 605, 771, 847, 1150, 1357, 5460 Holmes, Dennis R., 3409 Holmes, Jack D. L., 424 Holt, Barry, 1782 Holt, Barry H., 4157 Holyoak, William D., 1783 Honahni, Dan, 5041 Hood, Garfield W., 1872 Hood, Susan R., 1015 Hook, Jonathan B., 288 Hook, M. Julia, 4301 Hooker, Ann M., 3010 Hookey, John, 5329 Hoopes, Chad L., 2678 Hoover, Herbert T., 905, 1358, 2679 Hoover, James L., 5494 Hopkins, Kenneth N, 1960 Horgan, Daniel E., 4606 Hornbuckle, Jim, 5069 Hornestein, David T., 4158 Horr, David Agee, 2594, 2718 Horse, Perry, 3011 Horsman, Reginald, 606 Horwitz, William E., 4607 Hosmer, Brian C., 323, 3490, 3579, 3606, 3750, 4350, 4549, 4699, 4976, 5148 Hostyk, Aaron H., 3876 Hotopp, Margaret Tobey, 2628, 2680 Hough, Henry W., 3580 Houghton, N. D., 92, 3367 Houle, Antoinette J., 3751, 4302 Houser, Nicholas P., 1016 Houston, Les, 2216 Hovenkamp, Herbert, 1784 Hovis, Nancy E., 4427 Howe, Leanne, 3627 Howell-Rom, Marcia L., 4914 Howland, Todd, 2482 Hoxie, Frederick E., 93, 425–26, 700, 848–49, 1116, 1151, 1359–61, 5497 Hryniewicki, Richard J., 427–28 Hsu, Cathy H. C., 4536, 4608, 4726 Hubbard, Secody J., 1490 Huber, Marg, 1676 Huddleston, Carol A., 2330 Hudson, Peter J., 5078 Huemoeller, James L., 4808 Huffman, James L., 3581, 4428 Hughes, John T., 701 Hughes, Richard, 289, 1785 Hughes, Richard W., 3752 Hughes, Sharman E., 5330 Hume, C. Ross, 1786 Humphrey, Norman D., 2005 Humphrey, Timothy J., 4507 Humphreys, Glen A., 429 Hundley, Norris, Jr., 3877–80 Hunt, Jack, 2483

Hunter, Mary Jo B., 1677 Hunter, Priscilla, 4672 Hurt, Douglas A., 2484 Hurt, Douglas F., 3724 Hurt, Wesley R., 5100 Hurtado, Albert L., 1787, 5474 Hutchins, Francis G., 1017 Hutchins, Wells A., 3881 Hutt, Sherry, 94, 3123–24, 3147 Hutton, C., 2093 Hyde, George W., III, 4609 Hynous, Anne-Marie, 4809 Ibbotson, Joseph H., 430 Icenogle, John P., 3582 Ickes, Dennis R., 3583 Ide, Britt E., 5392 Idleman, Scott C., 1362, 2838 Igou, Jeffrey M., 2217 Ihant, Patricia, 4810 Indian Civil Rights Task Force, 2218 Indian Law Resource Center, 2486 Ingber, Jeffrey, 3413 Ingram, Helen M., 3795–96, 3836 Ingram, John McGee, 4984 Inouye, Daniel K., 1395, 2684, 2840, 3125 Institute for the Development of Indian Law, 431 Institute for Natural Progress, 4162 Iobst, Richard W., 607 Iron Shield, Harold, 290 Irvin, Amelia W., 4303 Irving, Mark, 2664 Irwin, Lee, 1200, 2841, 3132 Isenberg, Andrew, 4163 Isham, Robert, Jr., 3883 Isherwood, James H., III, 4164 Ishii, Izumi, 5079 Ishiyama, Noriko, 4429 Israel, Daniel H., 95, 4304, 4430, 4813 Iverson, Peter, 96, 291–95, 905, 1152–53, 1364, 1961–62, 2812, 3279, 3725, 4289, 5331 Iwamoto, Kim Coco, 1365 Jabaily, Annalisa, 5332 Jack, Theodore H., 608 Jackson, Danna R., 3369 Jackson, Deborah Davis, 5101 Jackson, George, III, 4610 Jackson, Helen Hunt, 97 Jackson, Leroy, 432 Jackson, Vicki C., 1788, 4611 Jacobs, Margaret D., 2842 Jacobs, Ren’ee, 1366 Jacobson, Clair, 702 Jacobsen, Judith E., 3884 Jacoby, Gordon C., 4058 Jahoda, Gloria, 609

601 Jaimes, M. Annette, 34, 98, 850, 1442, 2625, 2685, 2815, 3297, 3864, 4162, 5344 James, Elizabeth, 773 James, Parthena (Parthenia) Louise, 2487, 3298 James, Paul F., 4165 James, Richard E., 2219 Jamieson, Amie, 2843 Janisch, Roy F., 4612 Janke, Ronald A., 433–34 Jarboe, Mark A., 3584 Jarding, Lilias Jones, 1503 Jassma, Keith, 2844 Jay, John E., 919 Jeffery, Robert C., Jr., 3414 Jemison, G. Peter, 435–36, 3126–27 Jenkins, Myra Ellen, 2488–89 Jennings, Francis, 99, 390, 400, 437 Jensen, Erik M., 100–101, 1367, 1789 Jensen, Jon J., 1894, 2095 Jergovic, Rosemary, 4282 Jim’enez’, Vanessa J., 2220 Jimson, Leonard B., 1626 Joh, Elizabeth E., 1678 Johansen, Bruce E., 102, 438, 468, 522, 1018, 1154–55, 1226–27, 1368, 2490, 2653, 2727, 3128, 4305, 4313, 4422, 4431, 4613–16, 5011, 5498 Johanson, Stanley M., 2303 Johnny, Ronald Eagleye, 1679, 2221, 3546, 3585, 3726 Johnsen, D. Bruce, 4166 Johnson, Broderick, 3733 Johnson, Carl H., 4432, 5218 Johnson, Dana, 4167 Johnson, David C., 4814 Johnson, Edward C., 1369 Johnson, Elden, 3129 Johnson, James T., 4168 Johnson, Joel, 4915 Johnson, Kenneth M., 2686 Johnson, Kenneth W., 3299 Johnson, Kim Chandler, 3235 Johnson, N. B., 1156 Johnson, Ralph W., 103, 1533, 1655, 1790, 1963, 3130, 3415, 4169, 5333 Johnson, Ronald N., 3727, 3729, 4617 Johnson, Ross S., 776 Johnson, Susan, 1504 Johnson, Steven M., 2333 Johnson, Tadd M., 1370 Johnson, Tim, 4618, 5305 Johnson, Troy R., 104, 1157–58, 1178, 3696, 4916, 5304 Johnson, Wendy J., 4619 Johnston, Jeremy, 5046 Johnston, Robert, 2918 Johnston, William B., 4988 Jojola, Theodore S., 4433

602 Jones, B. J., 1680, 1895–96, 4917 Jones, Cliff A., 3416 Jones, Dorothy Knee, 5219 Jones, Dorothy V., 439–40 Jones, Douglas C., 441 Jones, Eric D., 4620 Jones, Gary T., 2687 Jones, Mack T., 4918 Jones, Oakah L., Jr., 2006 Jones, Quentin Michael, 4306 Jones, Willis B., II, 4170 Joranko, Timothy W., 924, 1534, 1897 Jordan, David B., 3236, 3586, 4621 Jordan, Glenn H., 610 Jorgensen, Delores A., 5499 Jorgensen, Joseph G., 851–52, 3587–90, 4255–56, 4269, 4280, 4286, 4293, 4307–8, 4312, 4329, 4345, 4357, 4622 Jorgensen, Miriam, 1443, 2019, 3591–93 Josephson, Andrew, 5220 Josephy, Alvin M., Jr., 105–6 Juliano, Ann, 3885, 4434 Julnes, Theresa, 3594 Kades, Eric, 1850 Kading, Linda King, 4623 Kalish, Jason, 4624 Kallen, Stuart, 4625 Kalt, Joseph P., 1318–19, 1371, 1716, 2518, 3494, 3507, 3521–32, 3595, 3596, 4559, 4626 Kamm, Jennifer, 3709 Kammer, Jerry, 2491 Kamper, David, 4579, 4587, 4591, 4593, 4599, 4672–73, 4707, 4712 Kancewick, Mary, 5269 Kane, Albert E., 2335, 3370 Kane, Lucile M., 442 Kane, Robert, 5012 Kane, Rosalie, 5012 Kanner, Allan, 4435 Kannler, Kathleen A., 3886 Kaplan, Michael J., 2688 Kaplan, Patricia A., 3468 Kappler, Charles J., 443 Karns, Christopher A., 4815 Karr, Steven M., 1573, 3887 Kasen, Larry M., 2492, 5221 Katz, Jane B., 1159 Kaufmann, Jeanne, 1504 Kawamoto, Walter, 4920 Kawashima, Yasuhide, 703, 1019, 1574–76, 2223, 5500 Kaye, Francis W., 2493 Keane, Coleen, 4919 Keith, Shirley, 2224 Kelbe, Bruce C., 3237 Kelleher, Michael, 611 Keller, Charles, 2096

Author Index Keller, George, 4985 Keller, Robert H., 3597, 5442 Keller, Robert H., Jr., 296, 444–45, 1791, 2046, 4171 Kelley, Klara Bonsack, 774, 2494, 3012 Kellogg, M. J. L., 1626 Kellough, William C., 1792 Kelly, David G., 2495 Kelly, Dean M., 3013 Kelly, Eugene, 5222 Kelly, James Michael., 2689 Kelly, Joseph M., 4627 Kelly, Lawrence C., 853, 925–27, 2496, 4309 Kelly, Meghan, 4628 Kelly, Michael J., 3131 Kelly, T. Christopher, 2336 Kelly, William H., 854, 928 Kelsey, Harry, 446 Kelton, Paul, 1372 Kemp, Helen M., 3598 Kempers, Margot, 2690 Kendall, Brenda, 1793 Kendrick-Hands, Karen D., 2691 Kenison, Robert S., 4986 Kennedy, Edward M., 2225 Kennedy, Gary D., 3371 Kent, Robert A., 4816 Kepner, George S., 1794 Kerber, Jordan E., 3060, 3067, 3075, 3109, 3120, 3137, 3168, 3184, 3205 Kerbeshian, Lynn A., 4921 Kerr, James R., 107 Kersey, Harry A., Jr., 297, 929, 1020–21, 1373, 5127 Ketcham, Frank S., 1022 Kholhoff, Dean, 5461 Kickingbird, Kirke K., 108, 298, 447, 855, 1023, 1681, 1964, 2692, 4629, 5397, 5419 Kickingbird, Lynn, 108, 298, 448, 930 Kidwell, Clara Sue, 1160, 3132, 5128 Killion, Thomas W., 3071, 3133 Kilty, Keith M., 4589, 4992, 4996, 5130 Kim, Stephanie J., 2097 Kim, Suzanne, 2442 Kimball, Solon T., 1024 King Duane H., 564, 607, 1610 King, Gary K., 3888 King, Jamelle, 2226 King, James T., 2098 King, James Winston, 2337 King, Thomas S., 3134 Kinley, Larry, 3599 Kinnaird, Lawrence, 449 Kinney, J. P., 856, 3753 Kinsler, Jeffery S., 5431 Kintigh, Keith W., 3108, 3144 Kirchner, Grace, 1374 Kirk, Peggy Sue, 3889

Kirkwood, Martin, 2227 Kirwan, Laura, 3890 Kissel, Benedetta A., 5475 Klaczek, Kristin A., 4583 Klein, Christine A., 450 Klein, Karen K., 2228 Kless, Trude, 3754 Klessert, Anthony L., 3135 Kline, Teresa L., 4540 Klios, George, 612 Klopfenstein, Carl G., 613–14 Kluckhohn, Clyde, 928 Klugman, Julian, 3197 Kmiec, Douglas R., 2845 Knabenshue, S. S., 451 Knack, Martha C., 299, 704, 3600, 4436, 5129 Knapp, Lyman E., 5223 Knapp, Timothy, 3630 Knecht, Steven A., 2693 Knepper, Paul, 2007 Knight, Oliver, 615, 1375, 1577 Knoepfler, Karl J., 109 Koczara, Ryan T., 1535 Koehler, Lyle, 2099 Koehler, Marc, 1376 Koenig, K. Alexa, 4630 Kolkema, Jason D., 4631 Kono, Kevin H., 3891 Koons, Melvin E., Jr., 2338 Koppes, Clayton R., 857 Korsmo, Fae L., 5224 Koslosky, John Gregory, 4172 Kosslak, Renee M., 3136 Koster, John, 1111 Kotlowski, Dean J., 858, 1161 Kovnat, Ruth L., 4437 Kozub, Robert M., 4310 Krahe, Diane L., 4438 Krakoff, Sarah, 300, 1795 Kramer, Karl J., 1796 Kramer, Kelly B., 4632 Krauss, E. P., 2694 Kreger, Robert B., 4311 Krepps, Matthew B., 3755 Krieger, Albert J., 1162 Krieger, Heinrich, 931 Kronowitz, Rachel San, 110 Kropf, Ramsey, 3892 Krosgseng, Kari, 4173 Kruger, Linda, 3756 Krupnik, Igor I., 5200 Kunesh-Hartman (Kunesh), Patrice, 4922 Kunitz, Stephen J., 3601 Kunstler, William, 1163–64 Kuntz, James W., 2229 Kupferer, Harriet J., 301 Kurman, Michael J., 4817 Kurtz, Rick S., 4174 Kuswa, M. Wesley, 2339

Author Index Kutner, Peter B., 2230 Kvasnicka, Robert M., 452 Labin, Tracy A., 1797, 2325 Lacey, Eric Jonathan, 3602 Lacey, Linda J., 4924 LaCourse, Richard, 3238 Lacy, David M., 3137 Lacy, Michael G., 859–60 Ladd, Edmund J., 3102, 3138, 3158 LaDuke, Winona, 111, 2883, 3603, 4278, 4312, 4439 La Farge, Oliver, 112–14, 767, 932, 1025–26, 3734 LaFave, LeAnn Larson, 775 Lafferty, Stephen, 1536 La Fontaine, Frank S., 2231, 2340, 3604 LaFrance, Ron, 436 LaFromboise, Richard, 115 LaFromboise, Teresa, 115 Lahrman, Dolores M., 776 Laird, A., 1324 Laird, Michael S., 3893 Lake, James A., Sr., 3300 Lake, Robert G., 4440 Lam, Eddie, 2919 Lam, James, 4987 Lamb, Michael F., 3894 Lamb, Terrance J., 3895 Lambert, Paul F., 453 Lambert, Valerie Long, 2846 Lamphere, Louise, 3605 Lamsam, Teresa Trumbly, 4313 Landau, Jack L., 4175 Landau, Patricia M., 3139 Landman, Lawrence B., 5334 Landsman, Gail H., 1165 Lane, Ambrose I., Sr., 4633 Laney, Nancy K., 3896 Lang, Gottfried O., 2695 Langley, Stephen, 1188 Lannan, Robert W., 3140 Lansford, R. R., 3797 Lantis, Margaret, 5225 Larson, Guistive O., 454 Larson, Jeff, 2341 Larson, Sidner, 116–17 Lash, Robin, 3728 Lassiter, Luke Eric, 274, 1377 Lathrop, Anthony, 5226 Latterell, Steven R., 3239 Latus, Justin, 5013 Lauderdale, Pat, 1578 Lauer, Alisa Cook, 2100 Lauer, Tammy, 5501 Laurence, Robert, 118–21, 455, 694, 705, 1269, 1505, 1779, 1798, 1880–81, 1898–1905, 1918, 1949, 2101, 2232, 2342–43, 3405, 3417–19, 4176, 4441–42, 4818, 5043, 5398

LaVelle, John P., 777, 1378, 1712, 2344, 4443 LaVere, David, 616, 3606 Laverty, Philip, 1027 Lavin, Chris, 2696 Lawrence, Jane, 5014 Lawrence, William J., 1682 Lawson, Michael, 5408 Lawson, Michael L., 778–79, 3897–98 Lawson, Paul E., 2920, 2921, 5399 Laxore, Danielle M., 5335 Laycock, Douglas, 2847–49 Layden, Robert A., 1400 Layton, Robert, 3161 Lazarus, Arthur, Jr., 3420, 5227, 5409 Lazarus, Edward, 2697 Lazarus, Keri B., 5336 Lazerwitz, David J., 3141 Lea, John M., 456 Leach, Carol S., 3899 Leach, James D., 3014 Leaming, Judy, 1799 Leaphart, Bill, 3900 Lear, Phillip Wm., 1869, 1881, 1906 Leavenworth, Peter S., 457 Leavitt, John H., 2698 LeBeau, Tracey A., 2233 Lednicer, Oliver, 1683 Le Duc, Thomas, 2699 Ledwon, Lenora, 3240 Lee, Andrew J., 3607 Lee, Nella, 2102, 5228–29 Lee, R. Alton, 3301 Lee, S., 4888 Lee, William F., 1058 Lee, Yuanchung, 1800 Leeds, Stacy L., 780, 3421, 3469 Leeper, John W., 3901 Legters, Lyman H., 10, 363, 861, 864, 1311, 1379, 1394, 1482, 2850, 3473, 3594, 3596, 3697, 3756, 4822, 5044 Lehmann, Michelle L., 4926 LeMaire, Kerstin G., 2103 Lembertson, G. M., 3302 Lemont, Eric D., 933, 1308, 1350, 1371, 1380–82, 1480, 3283 Lenertz, Karen L., 2234 Lennon, Noreen C., 1383 Lent, Eric S., 4634 Leonard, Deni, 862 Leornard, Kimberly Kempf, 2139 Leonard, Louis G., III, 3608 Lerch, Patricia Barker, 1028 Lesko, Lawrence M., 3757 Lester, David, 2104 Leung, Wai-Shan, 4529 Leupp, Francis E., 781 Leventhal, Alan, 998 Leventhal, Larry, 5496 Leventhal, Larry B., 1228

603 Levin, Stephanie A., 4635 Levine, Barry L., 4927 Levine, Frances, 3902 Levine, Stuart, 122, 250, 278, 301, 328, 1312, 1950 Levinson, Pamela, 3142 Levitan, Sar A., 123, 4988 Levy, Guy, 4636 Levy, Jerrold E., 4317 Lévy, Pierre, 3903 Lew, Alan A., 4637 Lewis, A., 4932 Lewis, Andrea, 4444 Lewis, Anna, 1384 Lewis, Bernard L., 4989 Lewis, David Rich, 1385, 4445 Lewis, Jim, 863, 1386 Lewis, O. Yale, III, 4177 Lewis, Wendy, 4928 Libecap, Gary D., 3727, 3729 Lichtenfels, Christine, 3904 Lichtman, Joanne, 110 Liebmann, Joanne, 4819 Lieder, Michael D., 1684, 2700, 3905 Lief, Joshua N., 2701 Lien, Arnold J., 3303 Lieux, L. Reneé, 4638 Light, Alfred R., 1907, 2702, 4446 Light, Steven A., 4639–41, 4687–90 Lightfoot, B. B., 617 Lightstone, Marte, 3906 Liljeblad, Sven, 1029 Lilley, Thomas E., 5080 Limas, Vicki J., 3422, 3470, 3609 Limprecht, Jane, 4929 Lin, Li-Chun, 4536 Lindefield, Robert O., 2922 Linder-Cornelius, Rebecca S., 4642 Lindo, Michelle M., 782 Lindquist, G. E. E., 124, 458 Lindquist, Mark A., 426, 5412 Lindsay, Britt, 5230 Lindsay, Diana, 4740 Lindsley, Sheryl L., 1166 Lindstrom, Vieno, 3423 Linge, George, 3015 Line, Sarah, Jane, 706 Linxwiler, James D., 5231 Linzee, E. H., 2497 Lipps, Oscar H., 2498 Lipton, Charles, 4318–20 Liston, Maria A., 3058 Littlefield, Daniel F., Jr., 783, 1685, 2105, 2345, 3304–5, 3758 Littman, Jonathon, 4643 Liu, Sylvia F., 3907 Livesay, Thomas A., 3143 Llewellyn, Karl N., 1580 Lobel, Jules, 54 Lobo, Susan, 125

604 Lobsenz, James E., 126 Locklear, Arlinda, 784, 2703–5 Lockwood, Patricia, 1686 Loesch, Martin C., 2851 Lofgren, Lois A., 3092 Loftin, John D., 2852 Loftis, Lynn, 2706 Logan, Clayton, 436 Lomawaima, K. Tsianina, 234 Lomayesva, Fred, 3306 Lombardi, Anne-Marie, 4178 Lombardi, Michael, 4644 Lomond, Kristin M., 5311 London, J. Tate, 5232 Long, Carolyn N., 2923 Long, Douglas, 2892 Long, Jack, 1687 Long, Jonathan W., 4447 Long, Phyllis, 3908 Longwitz, Tobi Edwards, 4645 Lonsdale, Linda S., 4646 Looking Horse, Arvol, 2892 Lopach, James J., 1387, 1801 Lope, Susan, 2707 Lopez, Anthony Guy, 2883 Lopez, Antoinette Sedillo, 4930 Lopp, W. James, II, 4448 Lora, Ronald, 873, 1358, 3016 Lorber, Leah L., 4647 Lorbiecki, Stefanie A., 4648 Lord, William B., 3810, 3846, 3855, 3901, 3909, 3916, 3924, 3926, 3935, 3963, 3992, 4015, 4018, 4026, 4031, 4061, 4065, 4072 Loudbear, Richard, 1388 Lovacs, Leanora A., 3910 Lovelace, Bryan W., 2534 Lovett, Laura L., 3307 Loving, Paul E., 3241 Lovis, William A., 3144 Lowe, Marjorie J., 1389 Lowe, Patty, 459 Lowndes, John P., 4497 Lowry, Daniel L., 1688 Loy, Debra K., 2106 Lubick, George M., 1390, 3016 Lucas, Joseph A., 334 Lucido, Robert O., 2708 Lucke, Thomas W., Jr., 1391 Luckerman, Douglas, 4449 Ludtke, Jean E., 3308 Ludwick, Brendan, 3309 Ludwig, Ann, 3610 Luebben, Ralph, 2107 Luebben, Thomas E., 2709, 4314–16 Luebke, Frederick C., 384 Lueck, Dean, 3710–11 Lujan, Carol Chiago, 1581 Lujan, Phillip, 3435

Author Index Luna (Luna-Firebaugh), Eileen M., 1392, 2008, 3372, 5337 Lupe, Ronnie, 1393 Lupton, Susan, 1582 Lupu, Ira C., 2853, 2924 Lurie, Nancy Oestreich, 122, 250, 278, 301, 328, 1030–31, 1167, 1312, 1950, 2710–13, 3611 Lusvardi, Anthony A., 2499 Luthey, Graydon Dean, Jr., 4649 Lutz, Donald S., 1583 Lux, Joseph R., 3310 Lyden, Fremont J., 10, 363, 864, 1311, 1379, 1394, 1482, 2850, 3473, 3594, 3596, 3697, 3756, 4822, 5044 Lynaugh, Thomas J., 2235, 4321 Lynch, Andrew D., 4717 Lynch, Judy D., 3424 Lyons, David, 2714 Lyons, Edward, 2854 Lyons, Maurice, 4650 Lyons, Oren, 52, 127, 436, 1258, 1268, 1348, 1395, 1414, 1472, 1584, 2883, 4651, 5300 Lytle, Clifford M., 62–63, 1663, 4820 Maas, David C., 5283 McAndrew, Stephen, 3017 McAuliffe, Billee Elliott, 1229 McAuthur, C. L., 2500 McBride, Mike, III, 2236 McCain, George A., Jr., 5233 McCain, John, 3145 McCall, Hugh, 460 McCallister, Elizabeth, 3911 McCarthy, Robert, 865 McCarthy, Robert J., 3425 McCarthy, Sean R., 2328 McCartney, Gaylene J., 4931 McChesney, Fred S., 785, 3484 McClatchey, Brian P., 4652 McCleary, Stephen P., 4821 McClellan, E. Fletcher, 1097 McClendon, R. Earl, 461 McClendon, Thomas A., 5280 McConnell, Michael W., 2855–56, 2925 McCool, Daniel, 3018, 3373, 3890, 3912–18 McCulloch, Anne Merline, 4653 McCurdy, James R., 4823 McCluggage, Robert W., 2501 McClure, Kade, 1032 McCoy, Melody, 1689 McCoy, Padraic I., 1230 McCoy, Robert G., 129 McCrary, Henry T., 2346 McCullar, Marian Ray, 462 McCulloch, Anne Merline, 1033 McCullogh, Ann, 4822 McDermott, John T., 1965

McDonald, David R., 5502 MacDonald, James, 1188 MacDonald, Peter, 128, 1363, 1397, 4326 McDonnell, Dale L., 4654 McDonnell, Janet A., 786–87 McEachern, Diane, 5130 McEachron, Ann E., 4932 McElroy, Scott B., 3919 McFadden, Karen S., 4655 McFadden, Marguerite, 3311 McFarland, Sean R., 2237 McFeeley, Mark, 3612 McGee, Patti Palmer, 4322 McGee, Robert W., 4824 McGinty, G. W., 2715 McGoldrick, Susan M., 2347 McGovern, Dan, 3613 McGovern, Gina, 3920 MacGregor, Gordon, 5410, 5463 McGuire, Randall H, 3146 McGuire, Thomas R., 3810, 3846, 3855, 3901, 3916, 3921–24, 3926, 3935, 3963, 3992, 4015, 4018, 4026, 4031, 4061, 4065, 4072 McHugh, Laurence A., 3614 MacIntyre, Donald D., 3927 McKanna, Clare V., Jr., 2108–13 Mackay, Greg P., 2348 MacKay, Kathryn L., 2523 McKay, Nancy, 4656 McKee, Jesse O., 1098 McKeown, C. Timothy, 3124, 3147 Mackey, Mike, 5015 Mackiel, Natalie M., 2238 Macklem, Patrick, 1398 MacLachlan, Bruce B., 1585, 2115 McLanahan, Elizabeth A., 4324 McLane, Alfred E., 2502, 4323 McLaren, John, 5209 McLaughlin, Castle, 3730 McLaughlin, Michael R., 5503 McLaughlin, Robert, 1966–67 McLaughlin, Robert H., 3148–50 McLeod, Mary Beth, 5234 MacLeod, William Christie, 2010 McLester, L. Gordon, III, 415, 606, 2703, 5492 McLester, Thelma Cornelius, 1396 McLish, Thomas P., 1537 McLoone, John P., 4179 McLoughlin, William, 618–23 McManamon, Francis P., 3151 MacMeekin, Daniel H., 2116 McMillen, Christian, 1168 McMurry, C. Steven, 3925 McMurry, Orrin K., 2114 McNabb, Steven, 5235 McNally, Kendra Shawne, 5443 McNally, Mary, 3926

Author Index McNeely, R. L., 2037 McNeil, Kent, 2716, 5338 McNeil, Kinneth, 463 McNeil, Michael J., 3242 McNeil, Richard J., 3242 McNeill, Daniel, 3759 McNickle, D’Arcy, 866, 934–36, 996, 1169 McNoble, Steven, 5236 McPherson, Robert S., 707, 2503, 3615, 3731, 4325 McQuillan, Alan G., 3760 McQuire, Thomas R., 867, 2504 McSloy, Steven Paul, 110, 130–32, 302, 1802–3, 2717, 3568 McWhorter, Lucullus V., 788 Madden, James M., 1533 Madden, Ryan, 5237 Madrigal, Luke, 4933 Maestas, Roberto, 1155 Magliocca, Gerard N., 3312 Magnanni, Vanessa, 5238 Maguire, Peggy, 5239 Mahan, Bruce, 624 Mahon, John K., 464–65 Maillard, Kevin Noble, 4934 Mallory, Jeffrey B., 4657 Mallouf, Robert J., 3152 Malloy, Robin Paul, 3616 Malmsheimer, Robert W., 3153 Malone, S. Caroline, 2239 Malone, Timothy R., 2240 Maloney, John, 4658–59 Maltz, Earl M., 3313 Mancall, Peter C., 1116 Mander, Jerry, 133 Mandleco, Sarah, 4450 Mankiller, Wilma, 134–25, 1399 Manley, Henry S., 466–67 Mann, Barbara Alice, 468 Mann, Roger, 3741 Manners, Robert A., 2718–20 Mansfield, Emily, 1690 Manuel, Henry F., 3617 Manus, Peter, 4451–52 Manzo, Joseph T., 625 Maraousek, Linda A., 4935 Marchiniak, Martin, 4999 Marcus, Barry, 2241 Marenin, Otwin, 5240–41, 5254 Marin, Kenneth, 2926 Markowitz, Kristal, 3618 Marks, Anthony J., 4660 Marks, Patty, 817 Marozas, Bryan A., 2721 Marsh, Gene A., 3154 Marsh, Randolph L., 4327 Marshall, William P., 2857, 2927 Marston, Lester J., 3619 Mathurk, Mary E., 5339

Martin, Connie Sue Manos, 4453 Martin, Fredericka, 5242 Martin, Kallen, 3155, 4825 Martin, Jill E., 2716, 2722, 2858, 3314, 5081, 5400–5401 Martin, S. Lee, 2349 Martin, John F., 2723 Martin, Kallen, 1034 Martin, Lucille J., 626 Martinez, A., 1324 Martinis, Berrie, 1790, 3928 Martone, Frederick J., 136, 2350 Martone, Rosalie, 3929 Marx, Jane, 3930–31 Mason, James R., III, 2928 Mason, W. Dale, 1170, 1570, 4661–62 Massad, Anthony M., 1400 Massie, Michael, 3932–33 Matal, Joseph D., 5243 Matheny, Stephanie D., 4454 Mathes, Valerie Sherer, 469, 1171 Matheson, David, 303 Matheson, L., 4936 Mathews, Robert O., 4308 Mathews-Lamb, Sandra K., 2505 Matt, Clayton, 3620 Matteoni, Paul A., 5244 Matthews, M. A., 2242 Matthiessen, Peter, 1172, 1395, 2506 Mattison, Ray H., 708 Mattson, Yvonne, 2243 Mause, Philip J., 40 Max, Theodore C., 2724 Maxey, Kenneth G., 4026 Maxfield, Peter C., 2351, 4328, 4455 Maxwell, Amos, 1401 Maxwell, Jean A., 4329 May, Phillip, 5082 Maynez, A. Patrick, 3934 Mazur, Cynthia S., 2929 Mead, Kim, 4180 Meagher, Michael J., 3719 Means, Russell, 1173 Medcalf, Linda, 1968 Meeks, Elsie, 2118 Megehee, Mark K., 1402 Mehrotra, Ajay K., 1586 Meidinger, Errol E., 1403 Meier, Dennis C., 2210 Meighan, Clement W., 3156 Meindl, Kristine, 4456 Meinhardt, Nick, 470 Meisner, Kevin, 2352 Meister, Alan, 4663 Mekeel, H. Scudder, 471, 937, 3621 Melaku, Martha, 3315 Melendy, Patrick, 5102 Melton, Ada Pecos, 1555, 1587 Meltzer, Daniel, 4664 Membrino, Joseph R., 3935–36

605 Mentor, Joseph P., Jr., 4181 Meriam, Lewis, 137 Meredith, Howard L., 1404–7 Merenstein, Adele, 3157 Merkley, Nicholas, 1538 Merrell, James H., 1116 Merrill, James L., 3794, 3937 Merrill, William L., 3158 Meserve, Charles Francis, 789 Messerschmidt, Jim, 1174 Metcalf, P. Richard, 1408 Metcalf, Warren R., 1035 Metteer, Christine, 3316, 4937–39 Mettler, Earl, 138 Meyer, Alison Joan, 4990 Meyer, Jon’a F., 1691–92 Meyer, Melissa L., 304, 790, 1409 Meyer, Michael C., 3938 Meyer, Randy L., 2725 Meyer, Roy W., 472, 709, 1036, 5411 Meyer, William, 1175 Meyers, Gary D., 4182, 5340 Meyers, Jason, 627 Mezey, Nanomi, 4665 Michaels, Lee S., 1908 Michaelsen, Robert S., 2859–64 Michaelson, Susan, 2019 Michel, Karen Lincoln, 3374–75 Michie, Preston, 5245 Mickenburg, Neil H., 5341 Migliazzo, Arlin C., 473 Mihesuah, Devon A., 1176, 2814, 3064, 3081, 3108, 3122, 3135, 3139, 3156, 3159–60 Mika, Karin, 3622 Mikkanen, Arvo Q., 5083 Miklas, Christine L., 3778, 3847, 3939, 3954, 3990, 4009, 4035, 4064, 4074 Milam, Joe B., 2507 Milani, Vincent C., 1693 Milchan, Suzanne, 3243 Milczarek-Desai, Shefali, 5131 Miles, Edwin A., 1851 Miles, Lion G., 2508 Miles, Marilyn Meissner, 4940 Miles, Ray, 2865 Miles, William, 628 Milford, Jana B., 4457 Millenbach, Lew A., 1852 Miller, Blake D., 1881, 1906 Miller, Brian D., 3426 Miller, Bruce G., 1037, 1588–92, 3019, 4183, 5476 Miller, Bruce Granville, 5342 Miller, Cary, 474 Miller, Char, 3020, 3918, 3959, 3981 Miller, David B., 2726 Miller, David R., 390, 400, 437 Miller, Dorothy L., 4941 Miller, Ernest G., 1394

606 Miller, Fred H., 1969, 3508 Miller, Gerald B., 3028 Miller, Gerald R., 3940 Miller, Jay, 4184 Miller, Jeffery S., 4666 Miller, Jody, 3941 Miller, Kathleen, 2353 Miller, Lloyd Benton, 5246 Miller, Margo S., 791 Miller, Mark Edwin, 1038 Miller, Robert, 1531 Miller, Robert A., 2509 Miller, Robert J., 1410, 3021, 3567, 3581, 3623, 4185–88, 5084 Miller, Susan A., 3317 Miller, Todd, 2244 Millhouse, Keith F., 2245 Million, Dian, 2354 Milligan, James C., 1411 Mills, Barbara J., 3022 Mills, Denise K., 1804 Mills, James P., 5247 Mills, John R., 4667 Mills, Lamond R., 3942 Mills, Lawrence C., 305–6 Mills, Robert F., 4942 Milun, Kathryn, 3339 Miner, H. Craig, 629, 2510, 3624, 4330 Minnis, Michael, 4827 Minugh, Carol J., 142, 188, 1089, 1340, 1412, 1475, 3318, 3599, 5310 Miranda, Anthony, 4650 Mirande, Michael, 4458 Misterek, Leon, 2355 Mitchell, Carol A., 2356 Mitchell, Donald Craig, 5248–49 Mitchell, John Arai, 1909 Mitchell, Marie, 475 Mize, Richard, 1413 Modrcin, William, 4109 Moeller, James C., 2119 Mohanty, Chandra Talpade, 5124 Mohawk, John C., 255, 436, 1414–15, 2727–28, 3318, 3625, 4668 Mohr, Mary Beth, 792 Molander, Susan Sanders, 3427 Molloy, Donald W., 4828 Monahan, Barbara S., 3943 Monahan, Forrest D., 2511 Mondou, Darla J., 3761, 3944 Monette, Richard A., 139–40, 1231, 1539, 2357, 3428, 3945, 4351, 4459 Monk, Janice, 5119 Monsivais, Jose J., 4669, 4943 Monson, Peter C., 4189 Monteau, Harold A., 4670 Monteau, Richard, 4331 Montgomery, Andrew S., 2512 Monro, James, 2247 Moody, Donna Roberts, 3137

Author Index Moody, Richard, 391 Moore, Christopher J., 4671 Moore, John H., 141, 260, 711, 829, 1416, 3548, 5001 Moore, Junius B., 793 Moore, Louis R., 4332 Moore, Lucy, 3946 Moore, MariJo, 74, 347 Moore, Michael R., 3947 Moore, Mikel, 3948 Moore, Stephen, 3161 Moore, Steven C., 2930, 3023 Moore, Tyrel G., 434, 1098, 2020 Moreland, J. Wm., 3244 Morgan, Edward M., 5343 Morgan, George R., 2931 Morgan, Lael, 5250 Morgan, Megan, 1040 Morisset, Mason D., 3762, 4190, 4840 Morris, Charles, 1417 Morris, C. Patrick, 868, 2920, 3949, 5044 Morris, Glenn T., 34, 142, 188, 1089, 1340, 1412, 1475, 3318, 3599, 5310, 5344 Morris, Melanie T., 2377 Morris, Richard, 1189 Morrison, Alvin H., 2078 Morrison, James D., 3626 Morrison, Richard N., 3950 Morrison, Scott, 3627 Morrison, Sharon M., 3951 Morrison, William E., 4829 Morse, Bradford W., 1593, 1636, 5286, 5345–46 Morton, Ohland, 1418–19 Moser, Kurt R., 3952 Moses, L. G., 806, 1129, 1145, 1171, 1303, 1390, 1420, 2932 Moses, Marsha, 2729 Moshier, John T., 1910 Moul, Francis, 2730 Moulton, Gary E., 1421 Mounce, William J., 4267 Mouser, Denette A., 1422 Moynihan, Ruth Barnes, 2513 Mudd, John O., 3628 Mudd, Joseph, 2120 Mudgett, Helen Parker, 143 Muehlen, Mary L., 3429 Mueller, J. R., 1594 Muga, David A., 144 Mullen, Kenneth, 1996, 2293 Mullis, Angela, 4579, 4587, 4591, 4593, 4599, 4672–73, 4707, 4712 Mumford, Jeremy, 3376 Mundell, Thomas C., 4830–31 Mundt, Karl E., 2248 Murakami, Judith G., 4460 Murphy, James C., 476 Murphy, James E., 2358

Murphy, Lindsay, 3953 Murphy, Mary Lynn, 3162 Murphy, Sharon W., 2933 Murray, David W., 3629 Murray, Jeffery, 4944 Murray, Virginia, 1595 Musial, James J., 2934 Muskrat, Jerry, 145, 3430 Myers, Joseph A., 1695, 4945 Myers, Larry, 3197 Myers, Mark D., 1039 Myhre, Russell J., 5103 Mykkeltvedt, Roald, 2935 NAACP Legal Defense and Educational Fund, 5045 Nader, Laura, 1596 Nafziger, Rich, 3763 Nagel, Joane, 1158, 1177–78, 3319, 3630 Nagel, Patricia McKeown, 3764 Nakai, Katasha Belwin, 1911 Nakamura, Gary, 3748 Nanda, Serena, 150 Napoli, Maria, 4589 Nash, Douglas R., 1232, 2121, 2359, 3954 Nash, Philleo, 869 Naske, Claus-M., 5251 Nason, James D., 3245 Nathan, Luxman, 3577 National Committee and Council, 1597 National American Indian Court Judges Association, 1696–97, 2122–23, 2249 National Association of Attorneys General, 2250 National Indian Law Library, 146 National Lawyers Guild, 147 Nayback, Kyle T., 4832 Naylor, Harry L., 2650 Neal-Post, Jody, 3024 Neath, Mark, 3320 Nebel, Reynold, Jr., 2731 Neely, Sharlotte, 1423, 3631 Neighbours, Kenneth F., 477, 630 Nelkin, Doroth, 4461 Nelson, Andrew, 3956 Nelson, Cathy, 2709 Nelson, Douglas, 5046 Nelson, Harry W., 3632 Nelson, Joseph G., 4673 Nelson, Katherine F., 2732 Nelson, Melissa K., 4419 Nelson, Michael C., 3957–58 Nelson, Robert A., 2124–25 Nesper, Larry, 478 Ness, Letitia, 4334 Neubach, Walt, 4243 Neumeyer, Elizabeth, 631 Newbold, Lindsay A., 3633 Newcomb, Steven, 4674

Author Index Newcomb, Steven T., 2514–15 Newcombe, Barbara T., 479 Newell, Alan S., 3959 Newell, Leslie, 3246 Newell, William B., 1598 New Holy, Alexandra, 2733 Newhouse, Michael R., 2516 Newkumet, Vynola, 1407 Newman, Gregory J., 4675 Newmyre, R. Kent, 1853 Newton, Nell Jessup, 37, 148, 870, 1233–34, 1271, 1698, 1918, 2360, 2517, 2734–37, 3247, 3280 Newville, Ed, 3960 Nguyen, Mariah Nhu, 4991 Niblock, Raymond L., 1912 Nichols, David A., 1508 Nichols, Roger L., 149, 871 Nickels, Bryan, 5347 Nickeson, Steven, 872, 3961 Nielsen, Marianne O., 1555, 1557, 1627, 1691, 1699, 1700–1701, 1721, 1729, 1732–34, 1737, 1997, 2012, 2030, 2038, 2059, 2081–82, 2093, 2126–29, 2148–49, 5241 Nielsen, Richard Allen, 2738 Nielson, Parker M., 1041 Nielson, Paul, 4833 Niethammer, Carolyn, 1424 Niezen, Ronald, 2846, 2866, 3209 Nilsson, Erik D., 1805 Nilsson, Mats A. N., 5164 Nissenbaum, Paul, 2518–19 Noble, Heather, 5252 Noble, Jim, Jr., 4834 Nockels, Joan M., 5253 Nolen, Curtis L., 1425 Noley, Grayson, 5047 Nordby, Larry V., 3151 Nordhaus, Robert J., 2739, 4335, 4835 Norgen, Jill, 150, 191, 632, 1817, 1854–56 Norman, William, 2130 Norris, L. David, 1411 North Carolina Commission of Indian Affairs, 307 Northard, Scott, 4462 Norton, George W., 3732 Norton, Hana Samek, 3962 Norwood, Frederick, 633 Novack, George, 151 Novello, Antonia C., 3248 Nowack, Sandra Lee, 1426 Noyes, Henry S., 2361 Nugent, Ann, 4191 Nunes, Keith D., 5348 Nuñez, Austin, 3963 Nunis, Doyce B., Jr., 2131 Nunn, Francis L., 1970 Null, David, 4946

Nurge, Ethel, 964, 1328, 3670 Nutten, Wesley L., III, 5433 Nydahl, Theodore L., 5444 Nye, Bradley I., 4192 Nyquist, Steven B., 480 Oakley, Andrea Geiger, 2520 Oakley, Christopher Arris, 4677 O’Barr, William M., 3079 Oberly, James W., 1427, 4193, 5412 O’Brien, Jean M., 2521 O’Brien, Lawrence, 1702 O’Brien, Sharon L., 1236–37, 1428, 2867–68, 5349–50 O’Callaghan, Jerry A, 2740–41 Occhialino, M. E., Jr., 1918 O’Connell, John D., 2742 O’Connell, Michael P., 1540 O’Connor, Sandra Day, 1703 O’Day, Sean E., 3964 Officer, James E., 1042, 5104 O’Gara, Geoffrey, 3965, 4336 Ogborn, Michael J., 2132 O’Hagen, Mike, 3966 O’Hair, Jennele Morris, 3967 Ojibway, Hilde, 990 Olguin, John Phillip, 2869 Olguin, Mary T., 2869 Olipant, J. Orin, 2522 Olivas, Michael A., 5048 Oliver, Lester, 3968 Oliver, Robert W., 152 Oliviero, Melanie Beth, 2362, 2383 Olney, Orville N., 1704 Olsen, Darryll, 3634 Olsen, Dennis M., 4337 Olsen, Matthew G., 110 Olson, James S., 153–54 Olson, Mary B., 4194 Olson, Paul A., 155, 3714, 3949, 5143, 5331 Olson, Thomas W., 2251 Oman, Kerry R., 481 O’Hara, C., 1324 O’Leary, Marilyn, 3837 O’Neil, Floyd A., 938, 2523 O’Neill, Catherine A., 4463 O’Neill, Colleen, 323, 3490, 3579, 3606, 3635, 4350, 4549, 4699, 4976, 5148 O’Neill, Terry, 712 Opacki, Michael, 3026 Opland, David V., 4947 Opler, Morris E., 713 Oravetz, Ladine, 3486 Ordon, Kimberly, 2524 Orem, Belinda K., 3969 Orfield, Gary, 1043 Orlando, Caroline L., 2743 Orloff, Chet, 5209 Orlowski, D. Faith, 2525

607 Orona, Richard A., 1928 Oringer, Andrew L., 4836 Ortiz, Alfonso, 292, 1454, 1456, 1585, 3475, 3970 Ortiz, Roxanne Dunbar, 156, 3637–38, 3971, 5351–53 Osborne, Alan, 634 Osborne, Deborah, 3164 Osborne, Stephen D., 1857, 3249, 5270 Osburn, Katherine M. B., 5132 Osburn, Richard, 5354 Ostergran, David, 5356 Ostler, Jeffrey, 3639 O’Sullivan, Kathleen M., 4678 Otis, Delos Sacket, 794 Otis, Ghislain, 5273 O’Toole, Francis J., 482 Ott, Brian Richard, 4195 Ott, Dennis G., 4837 Ou, Jay, 1596 Ovsak, Catherine M., 4196 Owen, Patricia, 2363 Owens, Nancy, 3640 Owens, Nancy J., 4338 Owl, Frell M., 1429 Owley, Jessica, 3972 Pace, Julie A., 1913 Pacheco, Michael M., 939, 3377 Pacheco, Thomas H., 2744 Padget, Cindy D., 1044 Padillo, Pablo, 1702 Page, Jake, 2700 Painter-Thorne, Suzianne D., 3163 Palermo, Dave, 4644 Palma, Jack D., II, 3973–74 Palmer, Michael D., 4838 Palmer, Sarah, 3164 Panagia, Giancarlo, 5441 Papke, David Ray, 1599 Paquin, Michelle Therese, 4908 Paredes, Anthony J., 297, 308, 311, 318–19, 1028, 1045, 1430, 3565, 3631 Parenteau, Patrick A., 4498 Park, Charles, 3321 Parker, Alan, 2819 Parker, Alan R., 2252, Parker, Arthur C., 1431 Parker, Christopher, 2936 Parker, Dominic P., 3485 Parker, Dorothy R., 1179 Parker, Grant D., 4412 Parker, Linda A., 3322 Parker, Linda S., 635, 2745 Parkinson, Bradley Donald, 2937 Parlow, Anita, 2526 Parman, Donald L., 158, 873, 940, 2133, 3641, 4197, 4580 Parsley, Jon Keith, 3250

608 Partoll, Albert J., 483 Paschal, Rachael, 1046 Pasquaretta, Paul, 4679 Paternoster, R., 2038 Paterson, John M. R., 1238 Pattea, Clinton M., 4589 Patterson, Brian, 309, 3027 Patterson, John, 3975 Patterson, Kelsey D., 5016 Paul, Amita, 5355 Paul, Wilber, Jr., 3647 Pauli, Dan J., 2210 Paulsen, Michael Stokes, 2870 Paulson, Michael I., 4198 Pavel, D. Michael, 3028 Pavel, Mary J., 3028 Pavis-Weil, Theta, 4680 Pavlik, Steve, 2938, 4464 Payen, Diana, 5017 Payne, Diane, 470, 5017 Peacock, Robert B., 4681 Peacock, Thomas D., 4681 Peak, Ken, 2011, 2134 Pearldaughter, Andra, 3431 Pearson, Byron E., 5413 Pearson, Joyce A. McCray, 3323 Pearson, Katherine C., 5018 Pearson, Mary, 4199 Pearson, Timothy J., 4200 Pease, Gregory, 1509 Pechota, Terry, 1543 Pedersen, Alden, 1914 Peel, Ryan T., 5255 Pelcyger, Robert S., 1807, 3976–77 Peltier, Leonard, 1180–81 Pemberton, Richard, Jr., 3029 Pendleton, Jean, 2253 Pensley, D. S., 3165 Perdue, Theda, 310, 636–37, 1137, 1143, 1167, 1176, 1432–33 Peregoy, Robert M., 3166–62, 3978 Perez, Richard L., 4839 Perkins, Craig, 2030 Perkins, Joseph J., Jr., 5256 Perkins, Kathy Imig, 1655 Perkins, Matthew, 2871 Peroff, Nicholas C., 1047, 4682–83 Perret, Karen, 5257 Perron, Brian J., 4201 Perry, Rashelle, 2939 Perry, Richard J., 4339 Perry, Richard Warren, 1048 Person, Louis D., II, 2254 Peters, Bill, 3030 Peters, Ramona L., 3168 Petersen, James B., 3067 Petersen, Willam J., 484, 2527 Peterson, Charles S., 3979 Peterson, Geoff, 3378 Peterson, Helen L., 941

Author Index Peterson, John E., II, 3169 Peterson, John H., Jr., 311 Peterson, Mark R., 3980 Peterson, Susan C., 3471 Peterson, Thomas F., 4202 Petoskey, John, 3031 Petoskey, Michael D., 159 Petterson, Jay R., 2135 Pettit, Kenton Keller, 5258 Petty, Kenneth, 4203 Pevar, Stephen L., 160 Pfaller, Louis L., 2136, 2528 Pfander, James E., 1541 Pfefferbaum, Betty, 5019–20 Pfefferbaum, Rose L., 5019–20 Phelps, Glenn A., 3379 Phillips, George Harwood, 714 Phillips, Richard G., Jr., 4204 Phillips, Robin A., 161 Phillips, Sloan, 4948 Philp, Kenneth R., 162, 874, 904, 938, 942–43, 1042, 1049, 1090, 2529, 2872, 5105, 5259 Phinney, Archie M., 944 Phipps, Eugenia Allison, 1239 Piatote, Beth Hege, 4205 Pickering, Kathleen, 3642–43, 5365 Pierce, Margaret Hunter, 2746 Pierce, Richard J., Jr., 1240 Pierre, George, 163 Pierson, Annette M., 3644 Pilling, Arnold R., 2873 Pingrey, D. H., 3324 Pipestem, F. Browning, 312, 2255 Pirtle, Robert L., 4840 Pisani, Donald J., 3981–82 Pisca, Jeremy P., 4684 Pitchlynn, Gary S., 1542 Pavlik, Steve, 4465 Pittman, Philip, 4206 Platzman, Steven, 3170 Pluth, Edward J., 485 Pochop, Sandra Ashton, 2940 Poindexter, Mark D., 795 Poirier, Robert, 5356 Polashuk, Stacie S., 2364 Pollack, Floyd A., 945 Pollman, Terrill, 2137 Pomedli, Michael M., 486 Pomerance, John R., 1808 Pommersheim, Frank, 164–66, 694, 1272, 1434–35, 1510, 1543, 1600, 1705–12, 1869, 1915–16, 2093, 2118, 2138, 2256, 2747–48, 3432, 3645 Poore, James A., III, 167–68 Poorman, J. Kevin, 4253 Pope, Carl E., 2037, 2139 Pope, Catherine E., 4466 Porter, Frank W., III, 1050–52, 3288, 3328

Porter, Joy, 1182 Porter, Robert B., 1436–38, 1511, 1601–2, 2365, 3325, 4685, 5402 Porter, Robert Odawi, 169–72 Posey, Alexander, 3326 Posey, Darrell A., 3251 Pospisil, Leopold, 1603 Potaka, Tama William, 5357 Poten, Constance J., 1439 Pottinger, Richard, 3646 Potts, Jim, 1664 Pound, Cuthbert W., 1512 Poupart, John, 5501 Poupart, Lisa M., 2139 Powell, Shirley, 3106, 3135 Powell, Thomas Reed, 4841, 5085 Powers, Melissa, 4207 Powers, Patrick E., Jr., 4842 Powless, Irving, Jr., 313, 436, 2749 Prakash, Saikrishna, 1273 Pratt, Carla D., 3327 Pratt, Raymond B., 4340 Pratter, Jonathon, 5505 Preloznik, Joseph F., 995 Preso, Timothy Joseph, 1809 Preston, Richard, 3647 Price, David, 173 Price, Lynn, 2750 Price, H. Marcus, III, 3171 Price, Monroe E., 37, 174–76, 1971, 2430, 3983, 5260–62 Priest, Loring B., 1183 Priestley, L. J., 5358 Prince, John Randolph, 177 Prindelville, Diane-Michele, 5133 Pritchett, L. Bow, Jr., 2257 Pritzker, Barry M., 178 Probasco, Robert D., 3433 Prucha, Francis Paul, 487, 638–40, 794, 875–80, 1184–85, 5506–9 Prygoski, Philip J., 1274 Pryor, Anita Clark, 3032 Puckett, Michael B., 2007 Purcell, L. Edward, 641 Purkey, Andrew, 3648 Purtich, Richard R., 5262 Putzi, Paul, 4843 Puzella, Mark S., 2630 Quail, Keith F., 2531 Quam, Darrin J., 5263 Quandt, Amy, 4208 Quesenberry, Stephen V., 5359 Quinn, Miriam Latore, 5360 Quinn, William W., Jr., 1053–54, 1604, 4467 Radlauer, Charles, 314 Radon, Amy, 2366 Radtke, Derek P., 2367

Author Index Ragsdale, Fred L., Jr., 179, 1917, 4844 Ragsdale, John W., Jr., 642, 881, 1055–56, 1241, 1605–6, 2258, 4468 Raines, June Camille Bush, 3172 Rains, Rebecca, 2941 Raley, Bennett W., 3984 Ralphs, Stewart P., 4845 Ramierz, Bruce, 5050 Ramon, Juliann, 3617 Rand, Kathryn R. L., 4639–40, 4687–90 Randall, Archie, 2140 Randall, Bette, 2140 Rank, Nancy, 4949 Rannow, Robin K., 3033 Ranquist, Harold A., 3985–86 Ransom, Richard E., 1918, 2259 Raper, Elaine Both, 180 Rassier, Phillip J., 2368 Raver, Angela L., 4209 Ravnsborg, Jason, 4210 Ray, S. Alan, 3034 Ray, Verne R., 1057 Real Bird, Richard, 3649 Record, Ian Wilson, 315, 1186, 1440, 3650 Redhorse, David, 4846 Red Horse, John, 5501 Reding, Julie M., 4469 Reed, Gerald A., 1441 Reed, James B., 1513 Reed, Little Rock, 2141 Reed, Melanie, 2260 Reed, Scott W., 3987 Reese, Jim E., 3651 Rees-Jones, Trevor, 4341 Reeve, Frank D., 2532 Reeve. Robert K., 2369 Reiblich, G. Kenneth, 3434 Reid, Harry, 4691 Reid, John Phillip, 643, 1607–10, 2142 Remerowski, Anita, 3432, 5510 Render, Jesse Andrew, 2751 Renner, John Robert, 4950 Reno, Janet, 1713 Reno, Phil, 3652–53 Repole, Palma, 3654 Reppert, Linda P., 4342 Resiman, W. Michael, 5361 Resnik, Judith, 181, 1810, 1920 Rey-Bear, Daniel I. S. J., 3988 Reynavann, Michael T., 4144 Reynolds, Laurie, 1869, 1921, 2261–62, 4211 Reynolds, Matthew, 3989 Reynolds, Osborne M., Jr., 2263–65 Rhoades, Everett R., 5019–20 Rhodes, John, 2874 Rhonda, James, 2266 Rice, Eric M., 3655 Rice, George William, 489

Rice, Randolf J., 2875 Rice, William G., 312, 316, 1858, 1972–73, 4351 Richards, Andrew P., 5264 Richards, Clinton G., 2370 Richards, Kent D., 4212 Richards, Stephen C., 2026 Richardson, Douglas, 4343–44 Richardson, Frank K., 3990 Richland, Justin B., 1714, 1974 Richman, Jennifer R., 3055, 3144, 3149, 3173–74, 3182 Richter, Daniel K., 436 Ricisak, John, 3077 Ridgeway, Michael, 4692 Riding In, James, 2143, 3175–77 Rievman, Joshua D., 3035 Riga, Joseph F., 4693 Riggs, Christopher K., 3656 Riley, Angela R., 3253, 5362 Rinaldi, Catherine A., 5265 Rinehart, Melissa A., 644 Ringold, A. F., 2533 Ripani, Michael N., 3036 Risenhoover, Angela M., 715 Rister, Carl Coke, 490, 2534 Ritchie, James E., 4694 Ritchie, Lucus, 3178 Ritter, Beth R., 1004 Ritzenthaler, Robert, 3657, 3765 Rivera, DeAnna Marie, 5363 Rivers, Theodore John, 1611–12 Roat, Elizabeth, 5445 Roback, Jennifer, 882 Robbins, Lynn Arnold, 946, 3658–59, 4345–49, 5236 Robbins, Rebecca L., 1100, 1442 Robbins, William G., 2535 Roberts, Alexandra, 3089 Robertson, Dario F., 182 Robertson, Lindsay G., 1859, 2536 Robertson, Paul, 1443 Robinson, Derrick H., 4991 Robinson, Paul A., 3075 Robinson, Robyn L., 4847 Robinson-Weber, Sandra, 1613, 1811 Robyn, Linda, 4213, 4470 Roca, Paul M., 3380 Rockwell, John G., 257 Roderick, Janna, 4214 Rodgers, William H., 4471 Rodgers, William H., Jr., 3991, 4125 Rodriguez, Carlos L., 3554 Roe, Terry L., 3732 Roels, Starla Kay, 4215 Roessel, Ruth, 3733 Rogers, Carl Bryant, 2267 Rogers, Kristine Olson, 4472 Rogues, Raymond S., 3435 Rolater, Fred S., 645

609 Roleff, Tamara L., 183 Rolland, Richard A., 1514 Rollings, Willard H., 2537 Roncalio, Teno, 3992 Ronda, James P., 646 Ronney, Rachael A., 1187 Roos, Philip D., 1188 Rose, Bryan J., 2876 Rose, I. Nelson, 4695–98 Roseman, David, 1238 Rosen, Deborah A., 2268, 3179 Rosen, Lawrence, 184, 3180, 5364 Rosen, Mark D., 3436 Rosen, Mark J., 2942 Rosenberg, Milton D., 4216 Rosenblatt, Judith, 317 Rosenfelt, Daniel M., 82, 5051–52 Rosenquist, Kerry S., 2095 Rosenstein, Steve, 2943 Rosenthal, Harvey D., 2752–53 Rosenthal, Nicolas G., 4699 Rosenthal, Melissa A., 4848 Rosier, Paul C., 185, 947, 1444, 4350 Ross, Anne, 5365 Ross, Anne E., 3993 Ross, Jeffrey Ian, 1635, 1675, 2009, 2025–26, 2033, 2128, 2144–45, 4213, 4470, 4682, 5229 Ross, Luana, 2146–47 Ross, Richard M., 5053 Ross, Rupert, 2148 Ross, Thomas E., 434, 1098, 2020 Rosser, Ezra, 3660 Rotenberg, Daniel L., 1515, 2372 Roth, George, 318 Roundtree, Helen C., 319, 3328, 3329 Royster, Judith V., 797, 1275, 1812, 2269, 2373–74, 3945, 3994, 4351–53, 4473–74, 5491 Rubenstein, Bruce, 798 Rubin, Ivan B., 186 Rubin, Ted, 1922 Rudio, Anne Alise, 4835 Ruffin, Sandra C., 4951 Ruffing, Lorraine Turner, 3661–63, 4354–57 Rugg, Janet V., 2944 Ruiz, Vicki L., 5119 Ruppert, David, 2982 Rusco, Elmer R., 948–50, 1445–46, 1813 Rusco, Mary K., 1446 Rusinek, Walter, 3995 Russell, Isaac Franklin, 187 Russell, Frank, 1447 Russell, Orpha B., 1448–49 Russell, Scott, 4603 Russell, Scott C., 3381 Russell, Steve, 1276, 1544, 1814, 3181 Rutland, Robert A., 491

610 Ryan, Anne M., 5086 Ryan, Frank, 4475 Ryan, James E., 2877 Ryan, Joe, 5366 Ryan, Kevin, 4700 Ryser, Rudolph C., 142, 188, 1089, 1340, 1412, 1475, 3318, 3599, 5310 Saavedra, Ronald T., 3664 Sabatini, Joseph D., 5511 Sachs, Noah, 4476 Sacks, Jeremy David, 5266 Sady, Rachel Reese, 951 Safar, Dwight, 5026 Saffouri, Hasan, 4952 Sager, Larry, 5367 Sager, Lawrence G., 2820 St. Clair, Gilbert K., 1354 St. Clair, James D., 1058 St. George, James R., 3550 St. Germain, Jill, 5369 St. Jean, Wendy, 2538 St. John, Lewis H., 320 Saison, Tania, 2878 Saito, Natsu Taylor, 5368 Salabiye, Velma S., 5512 Salmon, Sue, 1923 Samelson, Kirk S., 3996 Samuels, Richard A., 2375 Sanchez, Dolores, 999 Sanchez, John, 1189 Sande, Charles F., 3997 Sanders, Allen H., 3998, 4217 Sanders, Douglas, 1450 Sanders, James Marshall, 1815 Sando, Joe, 1451 Sandoval, Nicolasa I., 4703 Sanscrainte, Jennifer, 4411 Santana, Victoria S., 5496 Santangelo, Francis X., 2879 Santiago, Tessa Meyer, 4901 Santoli, Timothy J., 2945 Santoni, Roland, 4704 Sappier, James, 321 Sasaki, Tom T., 1286, 3665 Satz, Ronald N., 647–49, 4218 Saucedo, Everett, 4705 Saugstad, Kathryn, 4358 Saunders, Stella, 4851 Savage, Mark, 189, 4852 Savage, William W., Jr., 650 Savagian, John, 952 Sayer, John William, 1190 Schaab, William C., 3666 Schaaf, Gregory, 1452 Schacter, Jane S., 1816 Schaller, David A., 4477 Schaller, Michael J., 4583 Schapiro, Karen M., 3999 Schein, Anna M., 436

Author Index Schelhas, John, 4478 Scherer, Mark R., 322, 1860, 2754 Scheuerman, Richard D., 2568 Schifter, Richard, 1059, 2539–40, 3667 Schilz, Thomas F., 651 Schlegel, Richard P., 1924 Schlender, James H., 4219 Schlesinger, Robert A., 2541 Schlissel, Lilliam, 5119 Schlosser, Thomas P., 1545, 2270 Schmid, Suzanne S., 799 Schmidhauser, John R., 4220 Schneebeck, Richard, 3037 Schneider, Alan J., 3182 Schneider, Christopher, 3254 Schnidman, Frank, 4479 Scholes, Jennifer, 2921 Schomp, Bonnie, 3668 Schowalter, James, 3610 Schrader, Robert Fay, 3255 Schroeder, Albert H., 3970 Schnuelle, Kim Laree, 4953 Schuetz, Janice, 190 Schulenberg, Raymond F., 492 Schultz, Jerry A., 1102 Schultz, Stephanie, 5021 Schulze, Jeffrey M., 1060 Schusky, Ernest L., 283, 716, 934, 1453–54, 3437, 3669–71 Schwartz, Douglas O., 4480 Schwartz, E. A., 2542 Schwartz, William P., 4000 Schwartzman, Grace M., 493 Schwarz, Maureen Trudelle, 2543 Schwarz, Ted, 1397 Schwechten, John L., 3672 Schweinle, Amy, 2035 Sclar, Lee J., 5106 Scott, Charles, 1455 Scott, Jane E., 2271 Scott, Kenneth, 494 Scott, Wilfred, 4359 Scott, William C., 3832, 4001 Scrivner, Larry E., 1242 Scudder, Thayer, 2544 Seagle, William, 2376 Searles, Janis, 4221 Sears, Kelley D., 4853 Secakuku, Ferrell, 4360 Seciwa, Calbert, 1331, 3177 Seeman, Carole, 495–96 Segal, Elizabeth A., 4589, 4992, 4996, 5130 Seger, Michele L., 3038 Seielstad, Andrea, 1546 Seifert, Joshua L., 1861 Sekaquaptewa, Pat, 1614 Selander, Kenneth J., 2755 Seldin, Chris, 4002 Semple, W. F., 1975, 2545

Sentelle, David B., 2377 Sewell, Ellen M. W., 2880 Seymour, Flora Warren, 800, 2546 Shadid, Todd, 2378 Shadle, Paul, 2518–19 Shagen, Paul, 4854 Shames, Deborah, 1061 Shanahan, Donald G., Jr., 2756 Shane, E. Brendan, 4003–4 Shane, Ralph M., 717 Shanteau, Charie, 3164 Shapio, David G., 5267 Shapira, Anne, 5477 Shargo, Alvin H., 4005 Sharp, Polly, 4996 Shattuck, George C., 2757 Shattuck, Petra T., 191, 1817, 1856 Sheffield, Gail K., 3256 Sheley, Joseph F., 2124–25 Shepard, Dustan, 4993 Shepard, Harold S., 4006, 4481 Shepard, Ward, 3734 Shepardson, Mary, 1456–57, 1715 Shepherd, Jeffrey P., 323 Sheppard, Mary Jane, 1243 Sherick, Steve Paul, 2273 Sheridan, Richard B., 497 Sherrow, Victoria, 1862 Sherry, John W., 3767 Shetrone, H. C., 498 Shifter, Richard, 883 Shields, Lillian B., 499 Shimizu, Eileen, 4007 Shinnick, Phillip K., 5478 Shipek, Florence C., 2547, 2758 Shirley, Tom, 3673 Shockey, Frank, 3472 Shoemaker, Nancy, 5126–27, 5132, 5138 Shore, Jim, 4008 Shrader-Frechette, Kristin, 4482 Shreves, Catherine Elliott, 2759 Shupe, Steven J., 3778, 3847, 3939, 3954, 3990, 4009–11, 4035, 4064, 4074 Shurts, John, 4012 Sibley, Michelle, 3183 Sicius, Francis J., 3674 Sider, Gerald, 1062 Siemann, Dan, 4483 Sievers, Michael A., 500 Silliman, Dena, 1458 Silliman, Sue I., 501 Silver, James W., 652 Silverman, Robert A., 1555, 1627, 1997, 2012, 2030, 2038, 2059, 2081–82, 2093, 2126–27, 2129, 2148–49, 5241 Silvern, Steven E., 4222, 4484–85, 5479 Silvestro, Jo-Nell, 2379 Simkus, Albert A., 2086

Author Index Simmons, Benjamin F., 2946 Simmons, Paul S., 4013 Simms, Richard, 4014 Simon, Benjamin, 4015 Simon, Brona G., 3184 Simonds, Jerome H., 4361 Simone, Andrea A., 2944 Simoneau, Susan E., 2881 Simpson, Garrett William, 3382 Simpson, Michael H., 4223 Simson, Helene, 4954 Singer, Joseph William, 192, 1277, 1818, 2548–49, 2760–61, 3257, 5403 Singer, Scott N., 193 Sirois, Jonathan I., 4855 Sisk, Gregory C., 1244 Sitkowski, Robert, 3675 Skari, Andrea, 1716 Skenandore, Francine R., 1191, 5134 Skibine, Alexander Tallchief, 194, 694, 1245, 1717, 1819, 1869, 1925, 2274, 2362, 2380–83, 2762–63, 3438, 3676, 4016, 4707–8, 4856, 5480 Skinner, Ramoa Ellen, 5268 Skogen, Larry C., 2764 Skolnick Jerome H., 4709 Skoog, Douglas M., 2012 Slade, Lynn H., 1869, 1881, 1926, 3187, 4362–63 Slagle, Al Logan, 884, 1064, 4017 Slagle, Richard M., 718 Slater, Wendy, 719 Slotkin, James S., 2947 Slosson, Preston, 503 Sly, Peter W., 4018–19 Small, Michael, 4486 Smith, Andrea, 2882, 5022 Smith, Barbara J., 5050 Smith, Burton M., 504, 801 Smith, Chadwick, 2550 Smith, Charlene L., 4224 Smith, Clay, 195 Smith, David, 3331 Smith, Dean Howard, 3480, 3677–80 Smith, Dowell H., 1188 Smith, Dwight L., 505–8 Smith, E. B., 2765 Smith, Eric, 5269 Smith, Gordon S., 3768 Smith, Gregory D., 2150 Smith, Huston, 2883, 2948 Smith, James Morton, 2577 Smith, Justine, 4364 Smith, Kaighn, Jr., 3439, 5468 Smith, Karen L., 4020 Smith, Kyle B., 2384 Smith, Laura Hansen, 4710 Smith, Lee Ann, 509 Smith, Marian L., 5370 Smith, Mary, 3039

Smith, Michael T., 953, 3330 Smith, Patrick, 4487 Smith, Paul Chaat, 1192 Smith, Philip J., 1927, 3681, 4857 Smith, Richard A., 720 Smith, Robert E., 653, 2151 Smith, Robyn Cerny, 5135 Smith, Rodney K., 2884 Smith, Rodney T., 4021 Smith, Theodore Reynolds, 4846 Smith, Zachary A., 3799 Smither, Harriet, 721 Smithson, Thomas L., 4813 Snake, Rueben, 1333, 2948 Sniffen, Matthew K., 5425 Snipp, C. Matthew, 88, 1331, 3630, 3682–84, 4194, 5023 Snow, Alpheus Henry, 196 Snow, C. O., 802 Snow, D. Rebecca, 3401 Snowden, John Rockwell, 3331 Snyder, Michael C., 4955 Snyder, Steve, 3946 Snyder-Joy, Zoann K., 2385 Sockbeson, Henry, 1065 Soifer, Aviam, 1820 Sokolow, Gary A., 197, 4711 Soll, Lauren Natasha, 722 Somers, Douglas E., 3407 Sommer, Geoffrey D., 5270 Sommer, Tiane L., 3440 Sondheim, Harry B., 4022 Song, Soo C., 2220 Sonosky, Marvin J., 2275, 4365 Sophy, Michael M., 2949 Sorensen, Stephen, 5107 Sorkin, Alan L., 4994, 5023, 5108 Spade, Eric F., 4023 Sparks, Joe P., 5109 Spears, Daniel, 4536 Spence, Mark David, 5446–48 Spencer, Jack, 2134 Spencer, Joab, 510 Speroff, Leon, 1193 Spilde, Katherine A., 4712 Spiller, Pablo T., 2405 Sprague, Roderick, 3185 Spruhan, Paul, 1287, 2386 Stabile, Mark E., 4713 Stambor, Howard, 3040 Standefer, Amy J., 2387 Standing Bear, Geoffrey M., 4366 Stanley, Sam, 3491, 3536, 3617, 3661, 3685–86, 3702, 4119 Stanton, David M., 4025 Starna, William A., 355, 358, 1066, 1459, 2478, 2654, 2661, 2673, 2696, 2705, 2749, 2784 Startler, Norman H., 4026 Staudenmaier, Heidi McNeil, 4715–17

611 Stauss, Joseph H., 1976, 5110 Steele, D. Gentry, 3139 Stefon, Frederick J., 885, 954, 1067 Stegner, John R., 4225 Stein, Gary C., 654, 3333 Steiner, Susan, 30, 3506, 5130, 5312 Steinman, Erich, 4718 Stephenson, Barbara, 4368 Stephenson, David J., 3258 Steponaitis, Vincas P., 3144 Sterling, Everett W., 1246 Stern, Kenneth S., 1194 Stern, Theodore, 511, 3769 Stern, Walter E., 3186–87, 4488 Sternberg, Arnold C., 4995 Stetson, Catherine Baker, 1499, 1615, 3562, 3859, 4489, 4956 Stetson, C. L., 3441 Stevens, Carl, 3383, 3442 Stevens, Ernie L., Jr., 4672 Stevens, Phillip J., 2766 Stevens, Susan McCulloch, 3686 Stevenson, Marc G., 5200 Stewart, Murray B., 4859 Stewart, Omer C., 299, 324, 366, 2152, 2767–72, 2899, 2931, 2950–59 Stiffarm, Denise L., 4957 Stiles, Curt H., 3554 Stockel, H. Henrietta, 1141 Stocker, Robert W., II, 4719 Stoebner, Kerry, 817, 5271 Stoffle, Richard W., 2551, 3188, 3687, 4490 Stohr, Glen, 1821 Stomski, Laura, 5371 Stone, Albert W., 4027 Stone, Joseph C., 2552 Stoner, Kelly, 1928 Stoner, Scott D., 4743 Storey, Lee Herold, 4028 Stouff, Courtney A., 5481 Strang, Lee J., 1741 Stratton, John, 2013 Straus, Jerry C., 4008, 4720 Strausfield, David M., 1195 Street, Ida M., 512 Strickland, Rennard J., 198–202, 655, 1616–21, 1863–64, 1977–81, 2553–54, 3189–90, 3259, 4029, 4226, 5019–20, 5496, 5513–15 Strickland, William M., 1863–64 Stroll, Dawn, 2555 Stromwall, Layne K., 4996 Strong, John A., 1068 Struve, Catherine T., 1549 Stuart, Benjamin F., 656 Stuart, Kenneth M., 723 Stuart, Michelle L., 2885 Stuart, Paul, 803

612 Stuart, Paul H. (same guy as above?), 1101 Stubben, Jerry D., 3473 Stuckey, Mary E., 1189 Stull, Donald D., 1102, 3688 Stumpf, Gary D., 3191 Sturm, Circe Dawn, 3334–35 Sturtevant, William C., 5, 264, 292, 324, 366, 440, 452, 853, 869, 892, 1114, 1148, 1369, 1446, 1456, 2462, 3475, 3600, 5173 Sturve, Catherine T., 2276, 2773 Suagee, Duane B., 1982, 2556, 3041, 3192–93, 4227, 4491–98, 5372–73 Sudbury, Ryan, 4030 Sullivan, Alan L., 4369 Sullivan, Edward P., 4721 Sullivan, John F., 2277 Sullivan, Julia E., 2557 Sullivan, Martin, 3194 Sullivan, Robert, 4228 Summit, Ben, 5272 Sunderland, Kaye McDonald, 2886 Supereaw, Kathy, 3190 Sutton, Imre, 750, 804, 2558–60, 2600, 2613–14, 2622, 2688, 2711, 2723, 2752, 2772, 2775–78, 2788, 2795, 3715, 3757, 3760, 3890, 4107, 4398, 4433, 4438, 4499–4500, 5203, 5353, 5416, 5421–22, 5515 Svensson, Frances, 1196, 3443 Svingen, Orlan J., 2153, 3195, 3384, 3735 Swamp, Chief Jake, 436 Swan, Robert C., 1983 Swan, William J., 4031 Swanson, Eric J., 4723 Swanton, John R., 1566 Sweeney, Rosemary, 1069 Swenson, Chad W., 5414 Swentzell, Rina, 3444 Swepston, Lee, 5374 Swidler, Nina, 3127, 3196, 3201, 3219 Swift, Brett M., 4089 Swimmer, Margaret A., 4370 Swimmer, Ross O., 1460, 3689 Swindler, William F., 1865 Switzer, Justin W., 4724 Syndergaard, Rex, 657 Szasz, Margaret Connell, 1197, 5054–55 Taft, Philip, 2154 Tahsuda, John, 2779, 3690 Tail, Jim, Jr., 3771 Talbot, Steve, 125, 203, 1198, 2887 Taliman, Valerie, 1247, 3336, 3691 Tallan, Mark D., 2103 TallBear, Kimberly, 3337 Tamblyn, Katherine Anne M., 2388

Author Index Tamir, Orit, 2561 Tanner, Helen Hornbeck, 1822 Tano, Mervyn T., 4412 Tapahe, Luralene, 2888 Tarlock, A. Dan, 204, 4032, 4501 Tasso, Peter, 2389 Tate, Michael L., 2014 Tattershall, Doug, 5482 Tatum, Melissa L., 1929, 2390, 4033, 5136–37 Taylor, A. J., 724 Taylor, Benjamin J., 3692 Taylor, Eli F., 725 Taylor, Graham D., 955–57 Taylor, Jeff, 4034 Taylor, Jeffery S., 3783 Taylor, John L., 2465 Taylor, Jonathan, 3593 Taylor, Jonathan B., 1497, 3693 Taylor, Les, 4371 Taylor, Michael, 1718 Taylor, Quentin, 658 Taylor, Richard B., 4959 Taylor, Scott A., 4725, 4862–63 Taylor, Theodore W., 886, 1461 Taylor, William B., 2562 Teague, Faye, 2550 Tebben, Carol, 205, 1930 Tehan, Kevin, 2563 Tepker, Harry F., Jr., 2961 Thakali, Ren’ee G., 3757 Tharp, Stan J., 4229 Thériault, Sophie, 5273 Thiem, Rebecca S., 2564 Thom, Stephen N., 3197 Thomas, David Hurst, 3198 Thomas, James, 659 Thomas, Mark W., 2780 Thomas, Oliver S., 2849 Thompson, Benjamin W., 5274 Thompson, Edward L., 4960 Thompson, Elizabeth A.C., 805 Thompson, Gary L., 2467 Thompson, Gregory C., 660 Thompson, Jerome, 2565 Thompson, Joseph J., 1622 Thompson, Mark, 887 Thompson, Patricia, 5275 Thompson, Ray, 513 Thompson, Robert, 514 Thompson, Sherry M., 5375 Thompson, Vern E., 2566 Thompson, William N., 206, 4726–27 Thompson, William P., 1719 Thomson, J. S., 207 Thorington, Nancy, 2278 Thornton, Thomas F., 5276 Thorpe, Dagmar, 3694 Thorpe, Grace, 4372, 4502

Thorson, John E., 213, 3620, 3790, 3792–93, 3813, 3818, 3820, 3829, 3892, 3946, 3957, 4035–36, 4071 Tibbles, Thomas Henry, 3338 Tilleman, Paul J., 726 Tilsen, Kenneth E., 1199 Timmermans, Isabella, 5056 Tippeconnic, John W., 5057 Tisdale, Todd, 2889 Tittman, Edward D., 4037 Titus, Jeffery A., 4038 Tixier, Susan, 4864 Tobin, Tom, 701 Todderud, Eric, 5277 Tollefson, Kenneth D., 958, 1070, 5278 Tombar, Frederick, III, 3644 Tomlison, Zachary, 4230 Tong, Benson, 5087 Tong, Mary Lee, 5088 Tongate, B. W., 4728 Tooker, Elizabeth, 1462 Topper, Martin D., 4503 Toren, Peter, 4039 Torgerson, James E., 5376 Torgerson, Randall E., 3736 Torgerson, Ray, 1248 Torjesen, Karen Jo, 30, 3506, 5312 Torres, Gerald, 1249, 3339 Toussaint, Denise, 4180 Townley, John M., 5415 Townsend, Jon, 1674 Townsend, Kenneth, 5462 Townsend, Mike, 515 Tracey, Patricia Cleland, 2567 Trachman, Will, 2391 Tracy, Valerie, 727 Trafzer, Clifford E., 354, 473, 495–96, 509, 516, 531, 2155, 2568, 5138 Trahant, Mark N., 3385 Trail, Mary Jean, 4865 Trainor, Daniel J., 3260 Traisman, Ken, 1623 Trakman, Leon E., 208 Travis, V. A., 1463 Treat, James, 1200 Trees, May, 1464 Trelease, Frank J., 4040, 4455 Trennert, Robert A., 728, 5024 Trentadue, Jesse C., 1720, 2279, 4961 Treuer, Margaret (Seelye), 1465, 4041 Tribe, Laurence H., 209 Trigger, Bruce G., 3199 Trink, Reinhard, 2781 Trink, Richard, 5377 Trope, Jack F., 2890, 3042, 3200 Trosper, Ronald L., 210, 1285, 3340, 3695–97, 3737 Trost, Charles A., 4866 Tso, Tom, 1624–25, 1721–22

Author Index Tsosie, Ivan, 2128 Tsosie, Rebecca, 211–14, 518, 1250, 1824, 2570, 3078, 3201–2, 3201–2, 3261, 3341–42, 3945, 5058 Tsuk, Dalia, 960–61 Tubbs, Scott, 2571 Tullberg, Steven M., 888, 962, 1984, 2438 Tullis, Eddie, 4729 Turcheneske, John A., 661 Turcotte, Cindy, 4962 Turek, Michael F., 5442 Tureen, Thomas, 482 Turner, Allen C., 4730 Turner, Alvin O., 3698 Turner, Charles C., 889, 3386 Turner, Dennis, 4941 Turner, Shelley D., 4231 Tutterow, John T., 1931 Tuttle, Roger L., 3699 Tweedie, Ann M., 3203 Tweedy, Ann, 215 Twetten, Daniel, 4731 Twitchell, Marlyn J., 5279 Twomey, Joseph G., 4963 Tyler, S. Lyman, 890, 2572 Tyndall, Wayne, 3331 Udall, Stewart L., 216, 4732 Ujke, David Michael, 2280 Ullman, Carl, 4042 Ulmer, Mark K., 1071, 4997 Ulrich, Anna Nikole, 5519 Ulrich, Roberta, 4232 Underhill, Lonnie E., 1468, 1685, 2105, 2345, 3758 Unmack, Fred, 3043 Unrau, William E., 519, 629, 806, 1469–71, 4043, 5089–90 Upchurch, O. C., 963 Upchurch, Virgil, 3343 Upite, Daina, 4044 Uram, Charlotte, 4045 Useem, John, 5463 Useem, Ruth Hill, 964, 5463 Usner, Daniel H., Jr., 5111 Uthe, Lynn Klicker, 4964 Utton, Albert E., 3837 Valandra Edward C., 1073–74 Valencia-Weber, Gloria, 217, 1723, 1981, 1985, 2281, 3446, 5139 Valley, David J., 4740 Valsich, James A., 3738 Vance, Ann Gifford, 2573 Vance, John T., 2782 van de Logt, Mark, 2574 Van de Mark, Ruth, 5118 Vander, Jim, 1118

Vandervest, Brian, 1517 VanDevelder, Paul, 2783, 4505 Van Every, Dale, 662 Van Hove, Scott J., 4867 Van Loon, L. G., 520 Van Norman, Mark C., 924 Van Otten, George A., 4637 Van Winkle, Marlene, 5130 Van Zomeren, Barbara R., 4506 Varney, Tamara L., 3058 Vaskov, John A., 2393 Vaughan, Alden T., 521 Vaznelis, Antonina, 5434 Vecsey, Christopher, 326, 355, 663, 2474, 2478, 2654, 2661, 1673, 2669, 2705, 2749, 2784, 2862, 2868, 2891, 3023, 3044, 3097, 4326 Veeder, William H., 4046–54 Veeder, William V., 4868 Velie, Alan R., 3344 Venables, Robert W., 326, 436, 522, 663, 1472–73, 2474, 4326 Vennum, Thomas Jr., 4234 Verges, Scott C., 5280 Verhoeven, Charles K., 1075 Vernon, Howard A., 5378 Versaggi, Nina M., 3205 Vessels, Rod, 4235 Vest, Lindsay Loudon, 5379 Vetter, William V., 1932, 2394, 3700 Viarrial, Jacob, 4741 Vicenti, Carey N., 1724, 1986, 2892 Vicenti, Dan, 1626 Vick, Margaret, 4869 Viers, Becky J., 4373 Vinje, David L., 3701 Vipperman, Carl J., 523, 664 Vizenor, Erma J., 4672 Vizenor, Gerald, 327, 524, 3206 Voegelin, Erminie Wheeler, 525 Vogel, Howard J., 4224 Vogt, Evon Z., 5464 Vogt, Peter, 3447 Volk, Paul S., 2395 Vollmann, Tim, 2396, 2785, 4055, 4374 Voss, Ivy N., 4965 Wachtel, David, 2015–18, 2964 Wacker, R. Fred, 4742 Waddell, David D., 4743 Waddell, Jack O., 3587, 5104, 5112 Wadzinski, Kevin J., 3503 Wahrhaftig, Albert L., 3702 Wakeling, Stewart, 1725, 2019 Wala, Laurel I., 3213 Walch, Michael C., 1076 Waldman, Hilary, 1627 Waldmeir, Peter W., 2282

613 Walker, Deward E., Jr., 328, 3044 Walker, Francis A., 3345 Walker, Hans C., Jr., 2338, 5496 Walker, Jana L., 3563, 3931, 4056, 4236, 4421, 4507 Walker, Samuel, 2009 Wallace, Clifford J., 1933 Wallace, Anthony F.C., 665 Wallace, Harry B., 2786 Wallace, Mary G., 3810, 3846, 3855, 3901, 3909, 3916, 3924, 3926, 3935, 3963, 3992, 4015, 4018, 4026, 4031, 4057, 4061, 4065, 4072 Wallace, Pamela S., 2787 Wallenstein, Peter, 5435 Wallingford, Jayne, 1726 Wallis, Michael, 1399 Walsh, John F., 5281 Walter, David A., 526 Walters, Jennifer L., 4966 Walters, William, 1866 Wamser, Garry, 4967 Wan, Andrea V. V., 5282 Wantland, William C., 218 Ward, Carol, 3630 Ward, Edward J., 219 Ward, Robert Charles, 3045 Warde, Mary Jane, 2575 Wardell, Morris L., 1474 Warden, Dorothy M., 5494 Warden, Robert A., 5196 Waring, Antonio J., 1628 Warren, Hanna R., 527 Warren, John S., 3448 Warrior, Robert Allen, 1192, 1201 Washburn, Kevin K., 1202, 1727, 1934, 2157, 4744 Washburn, Wilcomb E., 5, 220–21, 440, 452, 666, 807, 853, 869, 891–93, 965, 1148, 2462, 2576–77, 2788 Wasmuth, Edward H., Jr., 4237 Wasserman, Richard David, 2397 Waters, James H., 2283 Watkins, Arthur, 1077 Watkins, Joe, 3207 Watson, Blake A., 1825, 2578 Watson, Editha L., 1987, 3772 Watson, O. Michael, 3587, 5104, 5112 Watters, Lawrence, 4238 Watts, Gary L., 3794 Watts, Stan, 4968 Watts, Tim J., 5516 Wax, Murray L., 222–23 Weatherford, Gary D., 3983, 4058 Weatherhead, L. R., 1078 Weaver, Hilary N., 4681, 4969 Weaver, Jace, 224, 2893, 3208, 3908, 4364, 4372, 4508–9, 5022 Webb, Barbara J. Larson, 3449

614 Webb, John R., 3449 Webb, Walter Prescott, 528 Webber, Joe D., 529 Webb-Vignery, June, 3703 Weber, Kenneth R., 3387 Webster, D., 4888 Webster, Joseph H., 1088 Webster, Michael E., 4375 Weeks, Charles J., 966 Weibel-Orlando, Joan, 5113 Weil, Richard H., 808, 2020, 3704 Weil, Robert, 225 Weinberg, Bill, 2579, 3739, 4059 Weiss, Lawrence David, 3705, 5283 Weist, Katherine, 5416 Weitz, Mark A., 4060 Welch, Deborah, 1203, 3706 Welch, John R., 3046 Weldon, John B., Jr., 3948, 4061 Well, Judith H., 226 Welliver, Mark, 809 Wellons, Gregory D., 2965 Wells, Matthew D., 5380 Wells, Samuel J., 530 Wells-Stevens, LynDee, 1475 Welsh, Erin T., 4062 Welsh, Louise, 667 Wendelowski, Karyn I., 5381 Wendt, Bruce H., 531 Wenzel, Mark C., 4745 Werhan, Keith M., 1826 Werntz III, Joseph Lee, 3474 Wesley, Clarence, 928 Wessel, Thomas R., 3740 West, Mary Beth, 3707 West, W. Richard, Jr., 2540, 4510, 5227 Westbrook, Landon, 4870 Western States Water Council, 4063 Weston, Rose, 227, 5382 Westphal, Amanda B., 4970 Wetherington, Chris, 2398 Wetmore, Ruth Y., 1079 Wetzel, Christopher, 4746 Wexler, Lesley M., 4971 Weyler, Rex, 1204 W. F. C., Jr., 2156 Whaley, Rick, 4239 Whatley, John T., 3047 Wheat, Douglas D., 2399 Wherry, James D., 978, 1493 White, Barry J., 4969 White, Benton R., 1476 White, Christine Schultz, 1476 White, Dale T., 1988 White, David R. M., 2894 White, Eric B., 2400 White, James D., 2895 White, Jay Vincent, 4871 White, John R., 2789 White, Patricia, 5025

Author Index White, Phillip Allen, 1935 White, Phillip M., 5517–18 White, Richard, 228 White, Robert H., 3708 Whitehead, Jenna, 271 Whiteing, Jeanne S., 4872 Whitson, Hollis A., 2580 Whitson, Keith E., 4873 Whitt, Laurie Anne, 3262 Whittenburg, James P., 2581 Wicks, Hamilton S., 2582 Wickstrom, Stefanie, 249 Widley, Julie L., 2284 Wiessner, Siegfried, 5383, 5384–85 Wiggins, Bill, 3538 Wigmore, John H., 1629 Wilcox, Michael, 3209 Wilcox, Ronald L., 2790 Wildenthal, Bryan H., 247, 1278 Wilen, James E., 4282 Wiles, David B., 4874 Wilhardt, Liesl, 3210 Wilkins, David E., 229–34, 382, 532, 1033, 1080, 1251–52, 1279, 1477–80, 1518, 1827–29, 1867, 2583, 2896, 3346–47 Wilkins, Thurman, 668 Wilkinson, Charles F., 82, 235–39, 533, 1081, 2285, 4064–66, 4240–42, 4376, 4511, 5449, 5519 Wilkinson, Glen A., 2791 Wilkinson, Norman B., 534 Wilkinson, Richard G., 3058 Will, J. Kemper, 4512–13 Willard, C. William, 967, 1481–83, 2966 Williams, Andrew, 1702 Williams, Aubrey W., Jr., 1484 Williams, C. Herb, 4243 Williams, David, 1830 Williams, Ethel J., 810 Williams, H. David, 2584 Williams, James R., 1831 Williams, Jason, 2792 Williams, Joan C., 3115, 3204 Williams, John L., 4514 Williams, Larry E., 2158 Williams, Paul, 436 Williams, Robert A., Jr., 240–46, 1280, 1630–31, 1832–33, 2585–86, 3048, 4875, 5386 Williams, Robert T., 4747 Williams, Susan M., 1499, 3859, 3931, 4056, 4067–69, 4876–77 Williams, Ted, 4244 Williams, Teresa A., 4515 Williams, Walter L., 273, 988, 1485, 1834, 3329 Williams, Wes., Jr., 4070 Williamson, Andrew S., 1550 Williamson, Terrion L., 3348

Wills, Ted, 2401 Wilmer, Franke, 4748, 5387 Wilms, Douglas C., 2587 Wilson, Alissa, 4972 Wilson, Diana Drake, 3211 Wilson, Frazer E., 535 Wilson, James G., 1835 Wilson, Margaret, 2402 Wilson, Patrick Impero, 4516 Wilson, Paul Burns, 2588 Wilson, Paul E., 3212 Wilson, Paul T., 3388 Wilson, Raymond, 154, 806, 1129, 1145, 1171, 1205–6, 1303, 1390, 1420, 2793, 5450 Wilson, Richard, 4377 Wilson, Richard H., 536 Wilson, Robert F., 4797 Wilson, Rollie, 4254 Wilson, Scott W., 2403 Wilson, Terry P., 1486, 4378 Wilson, Theresa R., 1551 Wilson, Thomas L., 4749 Wilson, Walt, 3349 Wilson-Hoss, Robert D., 2286 Wimer, Richard C., III, 3360 Winchell, Dick G., 1514 Winder, Samuel, 2794 Winfrey, Robert H., Jr., 3450 Winkler, Albert, 2159 Winkler, Ernest William, 2589 Winslow, Anastasia P., 3049 Winslow, Kate, 248 Wise, Jennings C., 3350 Wishart, David J., 2160, 2287, 2590, 2795, 5388 Witheridge, David E., 2897 Withey, David L., 1884 Wirth, Rex, 249 Wise, Katherine J., 1989 Wise, Steve, 2138 Wiseman, Frederick, 3067 Withington, W. R., 811 Witt, Shirley Hill, 250 Witte, John, Jr., 2967 Wolf, Roger C., 4998 Wolf, Sidney M., 4750 Wolfe, Kara, 4536 Wolfe, Mary Ellen, 5389 Wolff, David A., 4325 Wolff, Eric B., 1552 Wolff, Mark J., 1728 Wolfley, Jeanette, 3389 Wolfsong, Beth, 4071 Wolkman, John M., 533 Wollock, Jeffery, 251 Wood, David L., 5465 Wood, Harlington, Jr., 1207 Wood, James E., Jr., 2968 Wood, Jeffery H., 5284

615

Author Index Wood, Jennifer A., 4379 Wood, Mary Christina, 1253–55, 4246–47, 4517–18 Woodall, James H., 3050 Woodbury, Stephen E., 4248 Woodcock, Clarence, 345 Woodman, Gordon R., 1593, 1636, 5286 Woods, Karen M., 4973 Woodward, Arthur, 693 Woodward, David, 4974 Woodworth-Ney, Laura, 537 Worcester, Donald E., 377–78, 386–88, 396, 469, 538–39, 812, 5097 Work, Shannon D., 5285 Work, Susan, 83, 329 Worth, Murlene Jean, 3390 Worthen, Kevin J., 3051, 3451, 4380, 4751 Wright. Douglas R., 1553 Wright, Gordon K., 1936 Wright, J. Bart, 2288 Wright, J. Leitch, Jr., 540 Wright, Muriel H., 541, 669, 1868 Wright, Peter M., 968

Wrone, David R., 3351, 4249 Wulfhorst, J. D., 3709 Wunder, John R., 542, 894, 1990 Wunder, John R., 252–53 Wyckoff, Theodore, 330 Yablon, Marcia, 3052 Yalung, Catherine Bergin, 3213 Yamashiro, Jane M., 5286 Yanagida, Joy A., 4250 Yano, Lester I., 3214 Yardas, David, 4072 Yazzie, Alfred, 2021 Yazzie, Robert, 1632–33, 1638, 1729–32, 1991–92 Yellow Bird, Dorreen, 1993 Yellowman, Connie Hart, 3215 Young, Gordon C., 4753 Young, James R., 5512 Young, Lise, 4381 Young, Mary E., 670–71, 813–14, 3352 Young, Robert A., 3741 Young, Robert W., 1487 Young, Ronald T., 4073

Young, Rowland, 2161, 2796 Young, Stephen B., 1836 YoungBear-Tibbetts, Holly, 815 Zah, Peterson, 4074 Zahniser, Timothy, 5059 Zakheim, Rosalyn S., 2644 Zanger, Martin, 426, 5412 Zehnder, Michelle, 4975 Zelio, Judy A., 1513 Zellmer, Sandi B., 4519 Zimmerman, Larry J., 3216–19 Zingg, Elaine Oser, 3212 Zion, Elsie B., 1738 Zion, James W., 254, 331, 1557, 1634–38, 1645, 1673, 1691, 1701, 1721, 1729, 1732–38 Ziontz, Alvin J., 1837, 3452–53 Zissu, Erik Marc, 3353, 5466 Zittel, Katherine M., 3406 Zlock, Tracy N., 1994 Zobel, Ron, 2162 Zorn, Stephen, 1488 Zuni, Christine P., 1739–40, 1918, 5139

Subject Index

Abenaki Indians, 2078; aboriginal title of, 2708; fishing rights of, 4124; Green Mountain National Forest and, 3137 aboriginal people, 1699, 5311. See also indigenous people; tribal people aboriginal rights, 3061, 4471, 5311 aboriginal title, 5180; of Abenaki Indians, 2708; destruction of, 2479; treaties and, 2750 Aboriginal Youth Justice Committees, 1699 Abourezk, James, 887 abrogation, 333, 455, 840, 1265, 4221, 4441 abstention, 1869, 1926; discretionary, 1890 accretion, 2611 Acoma Pueblo Indians, 3179 activism, 125, 1086, 1161; in 1970’s, 1201; pan-Indian, 223; “Red Power,” 287, 1124, 1200; retrocession and, 2158; rise of, 1107; self-determination and, 162 Act of Separation of 1820, 482 “actual consideration and choice” test, 4441 Adair, William Penn, 1372 adjudication, 3922 adoption: cross-racial, 4934; high unemployment and, 4913 Adoption and Safe Family Act (ASFA), 4888 adversarial systems, 1692 AFDC. See Aid to Families with Dependent Children affirmative action, 1095, 1949 after-acquired lands, 4632, 4652 agencies, 715 agriculture, 3475, 3710 Agua Caliente Reservation, 3612

Aid to Families with Dependent Children (AFDC), 4983 AILTP. See American Indian Lawyer Training Program AIM. See American Indian Movement AIRFA. See American Indian Religious Freedom Act Akwesasne Mohawk Reservation, 4422 Alabama: Alabama–Coushatta Indians, 288, 4602; Alabama & Coushatta Tribes v. Big Sandy School District, 5059; Poarch Band of Creek Indians v. Alabama, 1523 Alabama–Coushatta Indians, 288, 4602 Alabama & Coushatta Tribes v. Big Sandy School District, 5059 Alabamas of Texas, 720 Alaska: Alaska Child in Need of Aid, 5146; Alaska Eskimo Whaling Commission, 5181; Alaska Native Brotherhood, 5148, 5237; Alaska Native Claims Settlement Act, 3510, 5154, 5261; Alaska v. Native Village of Venetie, 5248; Amoco v. Campbell supporting drilling in, 5170; Christian fundamentalism conflicts with Native culture in, 5194; environmental protection in, 5280; federal–Native relations in, 5180; foster care rates increasing in, 5211; Indian Country not accepted by Supreme Court in, 5174; land claims in, 5159, 5261; Native sovereignty terminated in, 5274; Native villages, 5142; oil/gas development in, 5280; Probilovians displaced in WWII in, 5237; reservations in, 5180, 5252; subsistence privileges in, 5220; tribal subsistence/hunting problems in, 5252; U.S. Supreme Court reducing Indian Country in, 5156; whaling

617

bans adverse influence on Inuit in, 5200 Alaska Child in Need of Aid, 5146 Alaska Eskimo Whaling Commission, 5181 Alaska Native Brotherhood, 5148, 5237 Alaska Native Claims Settlement Act (ANCSA), 3510, 5141, 5154, 5261 Alaska Natives, 5194; Alaska Native Brotherhood, 5148, 5237; land claims of, 5159; reservations of, 5180; termination of sovereignty by federal government, 5274 Alaska v. Native Village of Venetie, 5248 Albert, Carl, 858 Albuquerque, New Mexico, 3851 Alcatraz, 1116, 1128, 1157, 5484 alcoholism, 4933; cultural values and, 5081; as disease, 5006; federal policies contributing to, 5069; prohibition and, 5070 alcohol trade, 5079 Algonquian, 2213 alligator wrestling, 4549 alternative dispute resolution. See dispute resolution American Friends Service Committee, 4233 American Indian Health Security Act, 4999 American Indian Lawyer Training Program (AILTP), 2022 American Indian Movement (AIM), 1155, 1170, 1190, 1204, 1206 American Indian Nations Supreme Court, 2373 American Indian Policy Review Commission, 817, 1053, 2894, 5008, 5110 American Indian Religious Freedom Act (AIRFA), 2798, 2819, 2828, 2841, 2861, 2999

618 American Museum Association, 3185 American Religious Freedom Act, 3164 Amoco Production Co. v. Southern Ute Indian Tribe, 4334 Amoco v. Campbell, 5170 ANCSA. See Alaska Native Claims Settlement Act Andrade, Ron, 4672 Andreas, Mary Ann, 4672 Anishinaabe Indians, 4483 anthropologists, 2771 Apache Indians, 909, 3048; Clum and, 2014; Fort Apache, 3229; Jicarilla, 1286; Mescalero, 2115, 3520; Mount Graham, 3046; murder trials of, 2113; political system of, 1319; as prisoners of war, 595; removal of, 661; San Carlos, 1998, 3520; United States v. White Mountain Apache, 1244; White Mountain, 44, 1393, 3228, 3520; White Mountain Apache Indian Tribe v. Shelley, 1548 Arapahoe Indians, 499, 2588; economic genocide in, 3651; farming and, 673; political systems of, 1335, 1339; treaties of, 536 Archaeological Resources Protection Act, 3164 archaeologists: concerns of, 3185; control of remains by, 3207; Hopi and, 3053; tribal relations with, 3215; trophy hunters and, 3195 archaeology, 3146 Arch Coal, Inc., 4251 ARCO, 4258 Arikara Indians, 2783 Arizona: Arizona Supreme Court, 3964; Arizona Water Settlement Act, 3953; Central Arizona Project, 3953; Court of Appeals, 1871; genocide in, 2434; repatriation laws of, 3062; Supreme Court, 1548 Arizona Court of Appeals, 1871 Arizona Ski Bowl, 3016 Arizona Supreme Court, 1548, 3964 Arizona v. California, 3883 Arizona Water Settlement Act, 3953 Army Corps of Engineers, 4046, 4221 Arthur, Chester, 681 Articles of Confederation, 370 ASFA. See Adoption and Safe Family Act Asian-Americans, 192 assimilation policy, 176, 823, 893, 1745, 1887; in Canada, 5333; towards Cherokee Nation in WWI, 5457; diminution of tribal sovereignty through, 3450; economic development lacking due to, 5001; forced, 1002; immigrants/tribal people influenced

Subject Index by, 3325; social customs influenced by, 4924 Assimilative Crimes Act, 2248 asymmetry, 1898, 1934 at-large elections, 3362 attorneys, 13; challenges faced by, 202, 1980; community lawyering, 1947; self-determination and, 1950; tribal, 1941, 1993, 2022 Australia, 3207, 4451 avulsion, 2611 Badoni v. Higginson, 2798, 3025 Baird-Olson, Karren, 1158 Bald Eagle Protection Act, 455, 2871 bankruptcy, 2237 banks, 3510 Barney, Ralph, 2718 The Bau-a-lil-le Incident in 1909, 2133 Bauman, Robert, 2643 Bear Butte, 2999 Bear Lodge Multiple Use Association, 2977, 3000 bedlands, 2744 Bennett, Robert, 854 BIA. See Bureau of Indian Affairs Big Horn County Electric Cooperative v. Adams (Big Horn), 2244 Bighorn III decision, 3816 Big Horn River, 2412, 2499, 4046 Big Pine Band, 1386 Bilingual Education Act, 5027 Billie decision, 4441 Bill of Rights, 3428 bingo, 4559, 4570, 4749, 4790 biographies, 3240 bison, 4163 Blackbird, 85 Blackbird Bend, 2611 Black Elk, Charlotte, 2883 Black Elk Speaks, 3240 Blackfeet Nation, 219, 473, 2209; IRA and, 947; Tribal Court, 1891 Blackfeet Reservation, 2253 Blackfeet Tribal Court, 1891 Blackfoot Treaty, 397 Black Hawk War, 414, 2159 Black Hills, 150, 2406, 2623, 2747 Blackmar, Judge, 1068 Black Mesa coal lease, 3566, 4279, 4376 Black Seminoles, 3315 Blacksnake, 698 “blanket lease,” 4290 bloodlines, 3336, 3344 blood quantum, 3334, 4705 Bluehouse, William, 1653 Blue Lake, 158, 190, 2973, 3006 Boisclair v. Superior Court, 2179 Boldt decision, 4096, 4113, 4165, 4183, 4241

bone courts, 3206 Bonnin, Gertrude Simmons, 1137 Bonnischen v. U.S., 3104 border crossing, 5337 border towns, 3679 Boudinot, Elias, 668 Bowen v. Roy, 3036 Boyden, John, 4376 Bradley, Bill, 2623 Brave Bear Murder Case, 2136 Brendale v. Confederated Tribes & Bands of Yakama Indian Nation, 2183, 2200, 2288, 4404 Brown v. Babbitt Ford, Inc., 1871 Bruner, Joseph, 968, 1108, 1448 Buck, Peter, 1008 Bureau of Ethnology, 2932 Bureau of Indian Affairs (BIA), 816, 872; accountability of, 2024; controversy over tribal dancing and, 2842; missionary workers and, 3670; National Park Service and, 5442; NCAI and, 1943; on selfdetermination, 2124 Bureau of Reclamation, 3975, 3976, 4046 Burger, Warren, 1742, 2829, 4873 Burke Act, 269, 320, 732, 3314, 4824, 4863 Burlington Northern Railroad Company v. Red Wolf, 1887 Burnette, Robert, 1304 Burnet v. Coronado Oil & Gas Co., 4833 Bursum Bill, 1197 Bush, George H. W., 1084 business codes, 3547 Buster & Jones v. Wright, 4812 Byrd, Joe, 1422 Cabazon III decision: as basis for IGRA, 4623; enforcement of tribal–state compacts under, 4581 Caddo, 1404 Cahuilla Indians, 729 Campbell, Ben Nighthorse, 1334 Canada, 2989; aboriginal customary property rights and, 3061; assimilation policy in, 5333; civil rights of aboriginal people in, 5311; diplomacy with, 4203; environmental rights of indigenous people in, 4451; reliance on Worcester for tribal standing definition, 5333 Carter, Jimmy, 863, 888, 1084 cartography, 2558 Cartwright v. Public Service Company of New Mexico, 3903 casinos: on after-acquired land, 4632, 4652; Alabama-Coushatta Indians in litigation over, 4602; alligator

Subject Index wrestling and, 4549; tribal law and, 1627 Catawba Indians, 2706 Catholicism, 537, 2865, 2895 cattle ranchers, 2511, 3717 Cayuga Nation: Canadian claims of, 5378; land claims of, 2654, 2696 Central Arizona Project, 3953 Central Machinery v. Arizona State Tax Commission, 4865 CERCLA. See Comprehensive Environmental Response, Compensation and Liability Act ceremony, 2970 CERT. See Council of Energy Resource Tribes Chemehuevi Indian Tribe et al and Coyote Valley Band of Pomo Indians v. The State of California, 4736 Cherokee Indian Citizenship Act of 1838, 3272 Cherokee Indians: Cherokee Indian Citizenship Act of 1838, 3272; as freedmen, 3304; in Georgia, 3272; in North Carolina, 3271 Cherokee Nation, 150, 277, 2413; alcohol trade conflict with U.S. government, 5079; codes related to slavery in, 1565; constitutional governments of, 1352, 1381; constitution of, 593, 1352; court victories by, 191; Dawes Commission and, 3272; early laws of, 1597; economic difficulties of, 604; freedmen and, 3335; homicide law of, 1610, 1620; jury law v. blood feud system, 1564; justice system of, 202, 1719; Marshall and, 247; national identity/culture preserving, 3271; nationalism of, 619; newspapers of, 3238; North Carolina jurisdiction of, 2173; primitive law of, 1608; property rights on the Outlet, 2405; reconstruction of, 453; removal of, 544, 579; sad fate of, 1848; sovereignty issues of, 491, 783; temperance movement in, 5068; Texas and, 2589; treaties of, 386, 517; tribal courts of, 1719; tribal law of, 1608; trust relationship with U.S. and, 1252; World War I assimilation efforts towards, 5457 Cherokee Nation v. Georgia, 1209, 1817, 1840, 1846 Cherokee Nation v. Oklahoma, 4271 Cherokee Outlet, 2405, 3717 Cheromiah, Michael, 5018 Chevron Doctrine, 4016, 5390 Chevron v. Natural Res. Def. Council, 4404, 5390

Cheyenne Indians, 499; ARCO and, 4258; commercial sales law and, 1599; Consolidation Coal Company and, 4258; economic genocide in, 3651; farming and, 673; legacy of, 1586; Montana environmental issues of, 4412; Smithsonian Institution and, 3215 Cheyenne River Reservation, 1900, 3095 Chicago American Indian Community, 5093 Chickasaw Indians, 552, 1309 Chickasaw Nation, 2487, 4760 child abuse, 4975 Child in Need of Aid, 5211 child protection, 4975 child sexual abuse, 4901 child support, 4954 Chinese, 2091 Chippewa Indians, 375, 730; Chippewa Treaty of 1854, 375; fishing rights of, 4123; Lac Courte Oreilles Band of Chippewa Indians v. Wisconsin, 2280; Lake Superior Tribe of, 1930; land claims of, 815; Minnesota v. Mille Lac Band of Chippewa Indians, 4173, 4210; treaty rights of, 459 Chippewa Treaty of 1854, 375 Choate v. Trapp, 1271 Choctaw Indians, 3548 Choctaw Nation, 275, 530; allotment and, 1321; constitutional government of, 1309; constitution of, 1297, 1309, 1577; in Mississippi, 1099; punishment laws of, 1573; removal of, 543, 552, 565; self-determination of, 311; treaties with, 347, 372 Christian fundamentalism, 5194 Christianization, 2817 Christie, Ned, 2105 cigarettes, 4820, 4855 citizenship: Cherokees seeking, 3271; failure of tribal, in Congress, 3302; General Citizenship Act, 3303 City of Boerne v. Flores, 2807 civil rights, 4–5, 264, 1648, 2318; of aboriginal people in U.S./Canada, 5311; Commission on the Rights, Liberties and Responsibilities of the American Indian, 976; Indian Bill of Rights, 103; Indian Rights Association, 660; of Indians in U.S. Constitution, 253; “inherent rights,” 63; Native American Rights Fund, 1797; in Navajo law, 1634; sovereignty and, 1310, 5124; U.S. Commission on Civil Rights, 3419. See also Indian Civil Rights Act Civil War, 34, 90, 2011 claim awards, 3291

619 Clean Air Act, 4389 Clean Water Act, 3832, 4016 Cleveland, Grover, 699 Clinton, Bill, 837, 1507, 1713, 2220, 2706, 5035 Clinton, Hillary, 4999 Clinton, Robert, 5398 Clum, John, 2014 coal mining, 4422; Arch Coal/Crow agreement for, 4251; Black Mesa coal lease, 3566, 4279, 4376; companies specializing in, 4046; Consolidation Coal Company, 4258; Peabody Coal Company, 4360 Coast reservation, 2542 Cobell v. Babbit, 1222, 1229 Cochiti Pueblo theocracy, 3528 Coeur d’Alene Indians, 753, 2163, 2667 Coeur d’Alene Nation, 1552 Coeur d’Alene Reservation, 1341 Cohen, Felix, 960, 1768 collective will of tribe, 3392 Collier, John, 910, 925, 2872, 4376; selfdetermination and, 5028; women’s issues and, 5117 Colliflower v. Garland, 1914 colonialism, 77, 1436, 2126, 2146; Commerce Clause and, 3428; LakotaU.S. relations, 156. See also neocolonialism colonization, 1920; resistance to, 1175; of Seminole in Oklahoma, 667. See also decolonization colony: Navajo Nation as underdeveloped, 3475; reservations as, 3492 Colorado River decision, 3775 Colorado River Water Conservation District v. United States, 3912 Columbia National Forest, 4135 Colville Confederated Tribes, 163, 4411 Colville Confederated Tribes v. Walton, 3780, 3883 Comanche Indians, 469; culture of, 1351; German settlers and, 2480; KiowaComanche Treaty of 1865, 519; laws of, 1291; removal of, 630; treaties with, 405, 469; United States and, 695 comity, 1928 Commerce Clause, 3428, 4657 commercial fishermen, 4153 commercial sales law, 1599 Commission on Civil Rights, 3419 Commission on the Rights, Liberties and Responsibilities of the American Indian, 976 common law adversary court system, 1667 Common Law Project, 1558 common law trust, 3751

620 communal land ownership, 2468 community, 3344. See also tribal membership community lawyering, 1947 community status, 3291 compacts: Fort Peck–Montana Compact, 4035; with states, 1502; for tobacco in Oklahoma, 1491; Tribal–State Compact Act of 1978, 817; tribal–state gaming, 4581, 4624, 4713; Ute Indian Water Compact, 3842 compensatory damages, 4453 complexity theory, 4683 Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), 4390, 4435, 4453 compromise, 3136 Compulsory Joinder Rule, 5472 compulsory party joinder, 1538 Confederated Bands and Tribes of the Yakama Nation v. Washington, 2175 Confederated Bands of Ute Indians v. United States, 1970 Confederated Kootenai Tribe, 2301, 2792, 3528, 3997 Confederated Salish Tribe, 2301, 2792, 3528, 3997 Confederated Umatilla Tribes, 4104 Congress, 1015, 1077; colonialism supported by, 3428; conflict created by, through Clean Air Act, 3851; Fourteenth Amendment considered by, 3302; funding through NAGPRA for tribes, 3162; ICRA and, 3398; Indian country and, 81; Indian Financing Act passed by, 3501; interest in Indian policy of, 835; legislation on water rights from, 3921; role in legislating for tax conflicts, 4873; treaties and, 236; tribal communities supported by, through ICWA, 4912; unwillingness to grant funds for economic development by, 3671; U.S. Supreme Court and, 2896 congressional taxing authority, 4792 Connecticut, 1493 conquest, 240, 450, 1849, 1920 Conrad decision, 3975 consensus, 1604 conservation groups, 4083 Consolidation Coal Company, 4258 Constitution: congressional plenary power and, 1258; Fifth Amendment of, 3086; First Amendment Free Exercise Clause of, 1250, 2806, 2822, 2838, 2849; Fourteenth Amendment of, 3086, 3302; Indian rights and, 253; Iroquois Great Law of Peace and, 1366, 1452; racism and, 3324; sovereignty and, 489; tribal rights

Subject Index and, 382; tribes not covered by amendments in, 3428 constitutional amendment, 164 Constitutional Convention, 177 constitutional government(s): of Big Pine Band, 1386; of Cherokee Nation, 1352, 1381; of Choctaw/Chickasaw/Creek, 1309; of Mohawks/Senecas, 1436; of Montana, 3802; of Nez Percé, 1353; of Okmulgee, 1425; of Osage, 1458; of Piman tribe, 1447; of Senecas, 1436–37; traditional values and, 1382; of tribes in U.S., 1446 constitutional rights, 5029 Continental Congress, 355 contingency fees, 1970 Cooper v. Eugene School District No. 4J, 2886 Council of Energy Resource Tribes (CERT), 4312, 4355 counterfeiting, 3250 County of Yakima v. Confederated Tribes & Bands of the Yakama Indian Nation, 4815, 4863 Court of Appeals, 1238 Court of Indian Offenses, 1642, 1735, 2004 Coyote Valley Band, 4736 Creek–American Treaty of 1790, 540 Creek Nation: constitutional government of, 1309; Creek–American Treaty of 1790, 540; Creek Confederacy, 388; governance of, 1418–19; last session of the Council of, 1468; removal of, 591; slavery and, 1569 crime, 1729, 2088, 2123; Assimilative Crimes Act, 2248; Court of Indian Offenses, 1642, 1735, 2004; among Iroquois, 1598; Major Crimes Act, 2106, 2299, 2349, 4975; statistics on Native American, 2104; tribal gaming increasing, 4643, 4682, 4731. See also tribal law criminalization, 2033 criminal jurisdiction, 2291, 2307, 2330; methods of expanding, 2352; of nontrust lands, 2340 cross-deputization, 1996, 2293 cross-racial adoption, 4934 Cross, Raymond, 2783 Crow Dog, 1123, 2045 Crow Dog, 85 Crow Indians, 2412; coal mining and, 4251; Crow Tribe and Ten Bear v. Repsis and Petera, 4116; leadership of, 1361; National Farmers Union Insurance Cos. v. Crow Tribe, 1706, 1879, 1898, 2192–93, 2256; treaties of, 429

Crow Tribe and Ten Bear v. Repsis and Petera, 4116 cultural compromises, 3622 cultural displacement, 3642 cultural identity, 176 cultural items, 3065, 3070 cultural pluralism, U.S. Supreme Court and, 1813 cultural values: alcoholism and, 5081; criminalization of, 2033; First Nations Development Institute supporting, 3691; Indian identity and, 3344; land claims and, 2454; tribal courts and, 1680; tribal lawyers and, 1993; water rights and, 4066. See also multiculturalism; tribal culture cumulative voting, 3362 Curtis Act, 710, 783, 806 Curtis, Charles, 1470 dancing, 2033; Pueblo Dance Controversy, 1195; Secret Dance File, 2842; Snake Dance, 2872 Dann sisters, 2645 Davis, Gray, 4663 Dawes Act (General Allotment Act of 1887), 1, 11, 86, 320, 732, 741, 753, 789, 794, 1183, 3314, 3742, 3871, 4863 Dawes Commission, 3272 death squads, 1117 Death Valley Timbisha Shoshones, 1038 Declaration of Allegiance of the North American Indian, 3266 Declaration of Independence, 894 Declaration of Indian Purpose, 106 decolonization, 1631 DeCoteau v. District Court for Tenth Judicial District, 2172, 2601 Deer, Ada, 1160, 1426 deer tick epidemic, 943 deference, 1877, 1925 Delaware Indians, 412 Deloria, Vine, 887, 1125, 2490, 2883 Democratic Party, 3374 Department of Ecology decision, 4412 Department of Interior, 1240, 3700 Department of Taxation and Finance of New York v. Milhelm Attea and Bros. Inc., 4800 Devils Lake, North Dakota, 2751 Devil’s Lake Sioux Tribe v. North Dakota Public Service Commission, 2287 Dewey, John, 954 “dicta of occupation,” 4192 diminishment, 692, 721 diminution, 3450 Dinebeiina Nahiilna be Agaditache (DNA), 1983 dinosaurs, 795

Subject Index Dion decision, 4441 diplomacy, 4203 disclaimer statements, 1518 discovery, 2576 Discovery Doctrine, 1859 “discretionary abstention,” 1890 discrimination, 2110; in imposition of law, 2030; tribal sovereignty and, 3439; against tribal workers, 3462 dispossession, 2554 dispute resolution, 1733; alternative, 1942; in Navajo Nation, 1684 divorce, 5132 DNA. See Dinebeiina Nahiilna be Agaditache doctrine of prior appropriation, 3964 doctrines: Chevron Doctrine, 4016, 5390; Discovery Doctrine, 1859; of dual sovereignty, 2064, 2162; Equal Footing Doctrine, 334, 2445, 2499, 2591; exhaustion doctrine, 1915, 1921, 1935, 2193, 4334; Federal Indian Trust Doctrine, 2871; federal trust doctrine, 5191; Moderate Living Doctrine, 4167; plenary power doctrine, 169, 840, 2329; of prior appropriation, 3964; of trust, Cherokee Nation v. Georgia, 1209 Dodge, Henry Chee, 1302, 4436 domestic violence, 1729, 1738, 4933 do novo review, 2401 double jeopardy, 2043, 2064, 2100, 2101, 2137, 2162 Dred Scott, 3314 dual citizenship status, 1354 dual sovereignty, 2064, 2162 dual taxation, 4781 the Duro Fix, 2391 Duro v. Reina, 2311, 2319, 2348, 2380, 2394, 2400, 2402 Duwamish Indians, 958, 1070 Dzil Nchaa Si’an, 3046 eagles, 455, 2033 Eastman, Charles, 1151 Eberhard v. Eberhard, 1900 Echo-Hawk, Walter, 2883 ecocide, 33 economic development, 176, 5510; assimilation policy leading to lack of, 5001; of Cherokee, 604; through dominant neo-classical model, 3660; export enterprises for, 3679; IGRA as tool for, 4539; Jacobs Model for, 3679; through light industry, 3660; long-term leases for hotels to foster, 3612; microenterprises, 3537; of Navajo Nation, 3575; through New Institutional Economics, 3660; 1964 Economic Opportunity Act, 1983; of

Onandaga Nation, 3556; private market economy to foster, 3623; of reservations, 3519; at Rosebud Reservation, 3537; self-determination and, 3483, 3528, 3594; of Seminole Nation, 4549; through small business, 3557; U.S. Congress lack of willingness to fund, 3671; wage work in, 3642 economic history, 444 economics, 3482 education. See tribal education EEOC. See Equal Employment Opportunity Commission EEOC v. Fond Du Lac Heavy Equipment & Construction Co., 3633 EIS. See Environmental Impact Statement El Cajon Tribe, 4643 elections, 3373 Eleventh Amendment: exception to, 4521; state sovereignty through, 4539; state–tribal relations and, 4611 Elk v. Wilkins, 3314 El Paso Natural Gas Co. v. Neztsosie, 4334 Embee, John, 832 Emergency Relief Appropriation Act, 2471 employment, 3454, 3576 encumbrance, 2210 Endangered Species Act, 111, 4076, 4441; bureaucratic maze of, 4382; conflicts with, 4483; tribal nations conflicts with, 4492; tribal participation in, 4432 Energy Policy Act of 1992, 2227 energy resources, 3893, 4046, 4317, 4347. See also oil/gas development; tribal resources environmental groups, 4494 Environmental Impact Statement (EIS), 3718, 4368 environmental justice, 1982 environmental law, 4501 environmental protection, 4471; in Alaska, 5280; negotiation between tribes/state for, 4420; tribal authority on, 4512 Environmental Protection Agency (EPA), 3851; self-determination and, 4503; tribal self-determination and, 4403; Washington state in conflict with, 4383 environmental resistance movements, 4252 environmental rights, 4451 EPA. See Environmental Protection Agency

621 Equal Employment Opportunity Act, 3472 Equal Employment Opportunity Commission (EEOC), 3633 Equal Footing Doctrine, 334, 2445, 2499, 2591 equal protection, 138, 1905, 2170, 2175, 3391 Establishment Clause, 2817; Bear Lodge decision and, 2977; Free Exercise Clause and, 2838, 3025; religious freedom denied by, 2850; sacred sites and, 3008 ethics: environmental, 4482; human rights and, 4482; of repatriation, 3106 Europe, 61 evangelicals, 2882 Executive Order 13,007 (Indian Sacred Sites), 3164 exhaustion doctrine, 1915, 1921, 1935, 2193, 4334 Ex Parte Crow Dog, 2342, 2396 expert witness, 2600, 2771 export enterprises, 3679 Fair Employment Practice Commission, 3462, 3463 family, 761, 1725 Family Support Act of 1988, 4983 farming, 673, 743 FBI. See Federal Bureau of Investigation Federal Acknowledgement Program, 1037 federal aid, 5034 Federal Bureau of Investigation (FBI), 1118, 2092, 4529 Federal Columbia River Power System, 4411 federal common law, 1253 federal funding, 3103 Federal Indian Trust Doctrine, 2871, 5191 federalism, 205, 1539, 4611 Federal Power Act, 2227 federal preemption theory, 2224, 2234, 2235, 2242, 2374, 4830 federal relocation policy, 5108 federal standards, 1069 federal supremacy, 5398 Federal Tort Claims Act, 5018 Federal Water Pollution Control Act, 4045 federal welfare reform, 4976 fee simple lands, 3710, 3931 Fifteenth Amendment, 3324 Fifth Amendment: claims influenced by, 4215; Mancari case considering, 3472; of U.S. Constitution, 3086 The Final Promise, 849 fireworks sales, 4244

622 First Amendment, 1250, 2806, 2838, 2849; Free Exercise Clause of, 2822; tribal interests protected by, 3169 First Lenape National Bank of Anardako, 3510 First Nations Development Institute, 3691 fisheries, 3986 fish habitat, 4201 fishing rights, 190, 1037, 4075, 4422, 4471, 5502; of Abenaki Indians, 4124; Amoco v. Campbell influencing, 5170; of Chippewa Indians, 4123; damages to habitat and, 4201; hatchery fish, 4182; net fishing, 4193; of Ottawa Indians, 4123; salmon fishing, 4215; spear fishing, 459, 4173 Fishing Vessel decision, 4167 Five Civilized Tribes, 305, 463; communal land ownership of, 2468; cooperative approach to environmental issues by, 4514; Gilded Age and, 766 Flathead Lake, 3997 Flathead Reservation, 1340 Fleming, John, 1154 Fletcher, Alice, 773 Florida, 3943, 4008 fly-fishing, 4066 FMC Corporation, 3602 folk law, 1589 forced fee patents, 775 Ford, Gerald, 1161 Ford Motor Co. v. Todecheene, 2165 Foreign Sovereign Immunities Act, 1522, 1525 forestry program, 3537 Forest Service, 3006 Fort Apache, 3229 Fort Apache Reservation, 4483 Fort Belknap Reservation, 3823, 3932 Fort Berthold Reservation, 4976 Fort Laramie Treaty of 1851, 337, 716, 727 Fort McDowell Gaming Center, 4529 Fort McDowell Indian Reservation, 3803 Fort Mojave Tribe decision, 4842 Fort Peck–Montana Compact, 4035 Fort Peck tribes, 4035 Fort Robinson State Park, 1170 Fort Stanwix Treaty of 1768, 346, 467, 2724 foster care, 4935, 4966, 5211 Foster, Edwin, 4290 Foster Lease, 4290 Founding Fathers, 1472 Fourneir v. Roed, 2300 Fourteenth Amendment: litigation on basis of, 3383; 1964 Civil Rights Act and, 3428; racism before/after, 3324;

Subject Index tribal interests protected by, 3169; U.S. Congress discussing, 3302; of U.S. Constitution, 3086 Frank, Billy Jr., 4241 Franklin, Benjamin, 1368 freedmen, 3304, 3335, 3348 freedom of expression, 3392 Free Exercise Clause, 1250, 2922; AIRFA and, 2861; Establishment Clause and, 2838, 3025; of First Amendment, 2822; hybrid-rights exception to, 2945; ICRA and, 2806; Lyng v. Northwest Indian Cemetery Protective Association and, 2969, 2988, 2997; peyote religion and, 2901; religious freedom and, 2961; RFRA and, 2820, 2826, 2838, 2849, 2893; Smith v. Employment Division and, 2934, 2967 full-blood Indians, 730 Full Faith and Credit Act, 1880, 1905, 1917; restrictions on tribal sovereignty from, 1928; sovereignty and, 1880, 1905, 1917, 1928 Gabriel, José, 2112 gambling, 4592 game laws, 4172. See also tribal hunting gaming rights, 247 Garland American Indian Ethnohistory Series, 2718 Garland, Hamlin, 1468 Garra uprising, 2063 Garry, Joe, 1341 Gay Head Wampanoag Indians, 978, 993 gay marriage, 1905 Gemeinschaft, 326 General Allotment Act of 1887. See Dawes Act General Assistance Program, 4977 General Citizenship Act, 3303 genocide, 33, 90, 861, 1199; in Arizona, 2434; dispossession and, 2554; economic, 3651; Native American Historical Commission to document, 3259 Georgia: Cherokee Nation v. Georgia, 1209, 1817, 1840, 1846; hostility towards tribes, 1508; land claims in, 2444 German settlers, 2480 Gila River Pima–Maricopa Indian Community v. United States, 2689 Gilded Age, 766 globalization, 29, 2665 gold rush, 713; in Black Hills, 2406 “good exception provision,” 4878 government assistance, 50 governor’s veto, 4652 Grand Island, 2675

grazing lands, 3727 Great Britain, 440 Great Lakes, 444 Great Plains Reservation Tribal Police Department, 1995 Great Sioux Nation Judicial Support Center, 1712 Green Mountain National Forest, 3137 Grey, Helen Pierce, 873 Groton, Bernard, 2953 groundwater: reserved right theory and, 3861; surface water and, 3921, 3976; tribal rights and, 3792; Winters decision and, 3814 group protection, 4878 habeus corpus review, 2364 Hagen v. Utah, 718, 721 Haida, 958 Haile v. Saunooke, 1521 Handsome Lake, 698 Harjo, Chitto “Crazy Snake,” 744 “harmony-ethos,” 78 Harris, LaDonna, 1103 Harrison, Benjamin, 699 Hasinai Indians, 1404 hatchery fish, 4182 Haudenosaunee, 255, 436, 1436 Havasupai Indians, 2723 Hayes, Rutherford B., 658 hazardous waste, 3602, 4383; CERCLA controlling, 4390; legislative response requirement for, 4461 healing, 1675, 2025 Heff, 320 “hegemonic utility,” 828 heirship, 3710 heirship lands, 3737 hemp, 3728 herding, 3727 Hidatsa Indians, 2783 Highrock v. Gavin, 772 hiring, 3454 hiring practices, 3472 hiring preferences, 3463 historic preservation, 3113 Hodel v. Irving, 2698 hog confinement operation, 3718 Holyfield decision, 4899 Homeland Security Act, 5481 Home Missions Council, 912 homesteading, 417 homicide, 1610, 1620, 2113 Hopi Indian Tribe v. Block, 2798 Hopi Nation, 907, 2456, 2467, 4279; archaeologists and, 3053; Black Mesa coal lease and, 3566; land claims dispute with Navajo, 2435; litigation to protect sacred sites by, 3016; Navajo–Hopi Land Settlement Act of

Subject Index 1974, 2543; Navajo Tribal Council and, 267; nonaggression approach of, 1604; Taylor and, 900; Wilson v. Block and, 3037 Hopson v. Kreps, 5158 horizontal justice system, 1633 Horse, Billy Evans, 1377 hostility, 1503, 1508 hotel development, 3612 Houlton Band of Maliseet, 978 Houma Indians, 278, 990, 1038 Hualapai Indians, 1671, 1702, 2454 huckleberries, 4134 human remains, 3113. See also skeletal remains human rights, 3124, 4482, 5289 Hunter, Priscilla, 4672 Hunter, Robert Finley, 2632 hunting rights, 4192, 5502. See also tribal hunting hybrid-rights exception, 2945 ICC. See Indian Claims Commission Ickes, Harold, 925 ICRA. See Indian Civil Rights Act ICWA. See Indian Child Welfare Act Idaho, 2591; Coeur d’Alene Nation and, 1552; Idaho v. United States, 2591; United States v. Idaho, 2163 Idaho v. United States, 2591 IGRA. See Indian Gaming Regulatory Act IHS. See Indian Health Service immigrants, 3325 “implicit divestiture theory,” 68 imprisonment: Apache prisoners of war, 595; jailing rate for juvenile delinquency, 2032; Native healing practices and, 2025; racism and, 2079; rehabilitation and, 2146; religious freedom and, 2055, 2081; sexual harassment and, 2147 income generation, 3594 “increasing weight of history,” 2761 Indian art marketers, 3249 Indian Arts and Crafts Act of 1990, 3230, 3265 Indian Bill of Rights, 103, 3407 Indian Child and Family Services, 4933 Indian Child Welfare Act (ICWA), 4878; conflicts created by, 4965; In re Junious M. v. Diana L. supporting, 4946; state courts as violators of, 4879; state–tribal relations and, 4967; tribal courts in adversarial position with, 4887; tribal governments supported by, 4922; tribal interests as key to, 4886; U.S. Congress supporting tribal community through, 4912

Indian Civil Jurisdiction Act, 2284 Indian Civil Rights Act (ICRA), 226, 1642, 2232, 2364, 2921; Congress’s intention with, 3398; Duro v. Reina and, 2380; extension of, tied to reversal of Oliphant, 3417; freedom of expression and, 3392; Free Exercise Clause of, 2806; Martinez and, 3438; non-Indians and, 1536; question of federal government’s role in, 3451; self-determination policy and, 3450 Indian Claims Commission (ICC), 2624, 2665, 2746, 3335 Indian Claims Commission Act, 2782 Indian Commerce Clause, 4521, 4830, 5417 Indian Country, 188; Alaska v. Native Village of Venetie considering, 5248; changing definitions of, in Supreme Court, 5243; concept in Alaska not legally accepted, 5174; legal/geographical separation from other lands, 5421; in Los Angeles, CA, 5113; as underdeveloped real estate market, 4993; U.S. Congress and, 81 Indian Court of Appeals, 1748 Indian Financing Act, 3501 Indian Gaming Regulatory Act (IGRA), 4521; Cabazon III decision as basis for, 4623; Narragansett Indians following guidelines of, 4530; Oklahoma circumventing, 4692; state constitutions need for amendment to comply with, 4548; as tool for economic development, 4539; tribal income increasing through, 4731 Indian Health Care Improvement Act, 1087 Indian Health Service (IHS), 5000, 5006, 5018 Indian Homestead Act, 798 Indian identity, 3344 Indian Land Consolidation Act, 791, 2698 Indian law, 38; critique of, 56; tribal law and, 1933. See also tribal law Indian New Deal, 819, 853, 921, 927, 940 Indian Patrol of Minneapolis, 1119 Indian power, 3374 Indian Removal Act of 1930, 556 Indian Reorganization Act (IRA), 896–97, 947 Indian Resources Development Act, 1086 Indian rights, 253, 1797 Indian Rights Association, 660

623 Indian Self-Determination and Education Assistance Act, 11, 817, 1087, 1094, 1097–98, 1285, 4328, 5057, 5099 Indians of California v. The United States, 2686, 2771 Indian Trade and Intercourse Act of 1790, 2592, 2691, 3271 Indian Tribal Court/State Trial Court Forum, 1874 Indian Tribal Justice Act, 1693 Indian wars, 2456. See also war indigenous communities, 4252. See also community; tribal communities indigenous people, 5289 Indigenous Planning Network, 4433 indigenous status, 3347 individual rights: collective will of tribe and, 3392; group protection and, 4878; tribes discriminating against, 3439 infringement test, 2273, 4831 “inherent rights,” 63 inherent sovereignty, 1878, 1907, 2234, 2298, 2333, 2383 In re Junious M. v. Diana L., 4946 insurance companies: Iowa Mutual Insurance Co. v. LaPlante, 1879, 2253; National Farmers Union Insurance Cos. v. Crow Tribe, 1706, 1879, 1898, 2192–93, 2256; U.S. Supreme Court and, 1897 intellectual property rights, 3230, 5362 intergovernmental cooperation, 1504 intergovernmental negotiations, 4035 Intergovernment Tax Agreements, 5477 International Labor Organization, 5288 international law, 2318, 5305 International Whaling Commission, 5140, 5158 internet, 4621 interstate child support laws, 4898 interstate commerce clause, 4818 Interstate Congress for Equal Rights and Responsibilities, 4096 interstate interests, 4017 Inuit Indians, 5140, 5200 Iowa, 2565 Iowa Mutual Insurance Co. v. LaPlante, 1879, 2253 IRA. See Indian Reorganization Act Iron Eyes v. Henry, 2130 Iroquois Confederacy, 355 Iroquois Great Law of Peace, 1283, 1366, 1452 Iroquois Nation: condolence rite, 486; crime/punishment among, 1598; Franklin and, 1368; Gemeinschaft and, 326; Great Law of Peace, 1283, 1366, 1452; history/culture of, 437; Indian New Deal and, 921; land

624 claims of, 2625, 2728; liberal tradition of, 1403; position papers of, 255; “Red Power” and, 287; society of, 400; sovereignty of, 259; treaties of, 390 Irving, Mary, 2698 Jackson, Andrew, 556, 1838, 1840, 1860 Jacobs Model, 3679 jailing rate, 2032 Jenkins Act, 4855 Jerome Agreement, 1260 The Jerome Commission, 2511 Jicarilla Apache, 1286 Joan LaRock v. Wisconsin Department of Revenue, 4772 Johnson Act, 4692, 4715 Johnson, Lyndon, 216, 1085, 1100 Johnson v. McIntosh, 1261, 1845, 1847, 1861 Johnson, William, 5060 Jones, Evan, 621 Jose, Thomas, 2159 judicial minimalism, 1795 jurisdiction, 5495; of Cherokee in North Carolina, 2173; Indian Civil Jurisdiction Act of, 2284; Martinez clarifying, 3398; in Massachusetts, 2223; over Blackfeet, 2209; on reservations, 2167; subject matter, 3700; Tribal Federal Jurisdiction Act, 1963; tribal upheld in Montana decision, 3832; water laws and issues with, 4045. See also criminal jurisdiction justice system(s): Aboriginal Youth Justice Committees, 1699; adversarial v. restorative, 1692; of Cherokee Nation, 202, 1719; healing, 1675; Indian Tribal Justice Act, 1693; in Minnesota, 2041; in Navajo Nation, 1557, 1625, 1632–33, 1637; tribal, 1587 juvenile delinquency, 1559, 2031, 2032, 2128, 2135 Kanosh, 704 Kansas, 631, 1102 Karauk Indians, 2997 Kaw Indians, 1471 Keeple v. United States, 2399 Kennedy, Edward, 2294 Kennedy, John, 216 Kennerly v. District Court, 2252 Kennewick man, 3207; Bonnischen v. U.S. and, 3104; NAGPRA and, 3081–82, 3136 Keweenaw Bay Indian Community, 4746 Keweenaw Indians, 270 Kickapoo Indians, 1102

Subject Index Kickapoo Traditional Tribe, 4746 Kiowa–Comanche reservation, 2511 Kiowa–Comanche Treaty of 1865, 519 Kiowa Indians, 3651 Kiowa Tribe v. Manufacturing Technologies, Inc., 1528 Klamath Indians, 2692 Klamath Reservation, 1015, 3769, 3871 Kootenai. See Confederated Kootenai Tribe labor policy, 125 Lac Courte Oreilles Band of Chippewa Indians v. Wisconsin, 2280 Laguna Pueblo Indians, 3179 Lake Coeur d’Alene, 2591, 2667 Lake of Superior Tribe of Chippewa Indians, 1930 Lake Traverse Reservation, 2601 The Lakota Fund, 3691 Lakota Nation, 44, 902, 1994, 2623; Black Hills and, 2747; cultural revitalization in, 5322; hemp grown by, 3728; The Lakota Fund, 3691; treaties with, 470; U.S. relations with, 156; women’s issues in, 5118 Lamberth, Judge, 1240 land allotment, 1320, 1792, 2275; Choctaw and, 1321; Navajo and, 774; in Oklahoma, 765; reservations and, 710; taxation and, 4843; water rights and, 3815, 3892. See also Dawes Act land booms, 740 land claims, 118, 355, 974, 1994, 2443; in Alaska, 5261; of Alaska Natives, 5159; of Cayuga Nation, 2654, 2696; of Chippewa, 815; cultural values and, 2454; discovery and, 2576; in Georgia, 2444; of Havasupai Indians, 2723; Hunter assisting in, 2632; of Iroquois, 2625; of Iroquois Nation, 2728; of Klamath Indians, 2692; in Massachusetts, 2521; of Menominee Indians, 2692; in Minnesota, 2428; Navajo/Hopi dispute over, 2435; of Navajo Nation, 2555; in New Mexico, 2429; in New York, 1501; with nonIndians, 2622; in North Dakota, 2783; of Oneida Nation, 2654, 2724, 2774; of Pawnee Indians, 2795; of Pueblo Indians, 2531; of Seminole Nation, 2634; of Shoshone Indians, 2645, 2772; sovereignty and, 180; of Yankton Sioux Indians, 2679 landfills, 2269 land financing, 760 land-into-trust concept, 1230 land law, 2500, 2533 land leases, 2511; “blanket lease,” 4290; economic development through, 3612;

land taxes and, 4780; National Park Service and, 2530; Secretary of the Interior’s role in, 2430; of Seneca Indians, 2478 landless tribes, 1052 land loss, 1850 land patent annulment suits, 2644 land productivity, 804 land rights, 256, 813, 2490. See also land claims landscape restoration, 4463 landscapes, 2970 land speculation, 813 land taxes, 4780 land tenure: agricultural output through, 3710; cartography of, 2558; concepts, 2404; ranching and, 3737 land use, 2519, 2565, 3737 Land Use Associations, 3737 language, 383, 3113 Lanham Act, 3223, 3237 LaPlante, Edward, 1879, 2253 lawlessness, 2204 lawyers. See attorneys; tribal lawyers leadership. See tribal leadership lease terms, 4365 Lee, Phil, 4999 legal services, 1958 legislative solutions, 2989 lending arrangements, 4993 Lewis, Grady, 1975 Lewis v. Sac & Fox Tribe Housing Authority, 2236 liberal freedom ideal, 1235 lien rules, Sec. 184, 4993 Lincoln, Abraham, 2090 liquor licensing, 5063 liquor suppression, 5060 Little Big Horn College, 5046 livestock, 3475 livestock reduction program, 927, 2898, 4422 lobbying, 3364 logging, 3743; on Klamath Reservation, 3769; Menominees and, 3750; tribal forests and, 3760 logos, 3237 Lomayaktewa v. Hathaway, 3566 Lone Wolf v. Hitchcock, 85, 542, 1256–57, 1277, 2759, 3781 Lonewolf v. Lonewolf, 4954 long hair, 5059 Lookout, Fred, 1486 Los Angeles, CA, 5113 Loud Hawk, Kenneth, 1194 Louisiana Purchase, 2447, 2566 Lower Brulé Reservation, 767, 3671 Lower Columbia River Fisheries Development Program, 4075 Lumbee, 1080

Subject Index Lummi Indians, 4093 Lyng v. Northwest Indian Cemetery Protective Association, 2969, 2988, 2997 MacDonald, Peter, 1363, 1397, 1940 Madison, James, 1809 Major Crimes Act, 2106, 2299, 2349, 4975 Makah Indians, 111, 268, 4083, 4094 Maloney, Captain, 2446 Mancari case, 3472 Mandan Indians, 2783 Mankiller, Wilma, 1281, 1399 manufacturing, 3519 Manygoats v. Kleppe, 4368 Maori Indians, 5322 Marbury v. Madison, 1665 Marshall, John, 240, 247, 648, 1220, 1764, 1788, 1836, 1838, 2479 Marshall, Thurgood, 1798 Martinez decision, 5116 Martinez, Julia, 3391 Martinez v. Santa Clara Pueblo, 3391, 3398, 3438 Martin, Robert, 2632 Masantucket Pequot, 978 Mashpee Indians, 1489, 2612, 3271 Mashpee Tribe v. New Seabury Corp., 3273 Mason v. United States, 4802 Massachusetts: Indian policies of, 1576; jursidiction in, 2223; land claims in, 2521; Mashpee and, 1489 Massachusetts Unmarked Burial Law, 3184 Massacre at Deer Lick Creek, 2054 Matsch, Sally, 4714 McCarran Amendment, 3792, 3912, 4057 McCoy, Isaac, 342 McGill, Henry, 2446 McKay, Monroe, 1788 McMurty, Edward, 2160 Mdewakanton Sioux, 1036 Means, Russell, 1173, 1206, 1311 mediation, 1568, 1700, 3070. See also restorative justice; tribal lawyers Meeds, Lloyd, 887 Melcher Act, 4301 Menominee Indians: history of, 972; land claims of, 2692; logging by, 3750; Menominee Tribal Enterprises, 3743; termination of, 969 Menominee Tribal Enterprises, 3743 Merrion v. Jicarilla Apache Tribe, 4844, 4864 Mesa Grande Band of Mission Indians, 1230 Mescalero Apache Indians, 2115, 3520 Mesquakies, 284

Mexicans, 2091 Mexican wolf, 4464 Miami Circle, 2971 Miami Indians, 545 Michigan, 1660 microenterprises, 3537, 3691 military reservations, 3986 military tribunals, 2090 Milk River Reclamation Project, 3823 mineral extraction, 1906 mineral leases, 4355 mineral resource development, 3475 mineral rights, 180 mining, 3519; Arch Coal/Crow Indian agreement for coal, 4251; strip mining, 4279; uranium, 111, 4258, 4280, 4303, 4422 Minnesota, 2428, 4761 Minnesota v. Mille Lac Band of Chippewa Indians, 4173, 4210 minorities, 149, 5026 missionary workers, 3670 Mississippi, 552, 1099 Mississippi Band of Choctaw Indians v. Holyfield, 4921, 4944 Missouri River, 2783 Missouri River Services, 4734 Mitchell, John, 2542 mixed blood Indians, 730, 749, 802, 966, 1409, 3291 Moctelme, Peter, 1320 Moderate Living Doctrine, 4167 Moencopi, 2435 Moe v. Confederated Salish & Kootenai Tribes of the Flathead Reservation, 5417 Mohawk Indians, 265, 1436 Mohawk White Roots of Peace, 1415 Montana: Cheyenne working with state for environment, 4412; constitution of, 3802; Fort Peck tribes water rights agreement, 4035; Montana Reserved Water Rights Commission, 3823; political systems of Indian reservations in, 141; Tribal Judges Conference, 1965; water rights in, 3802 Montana decision, 3832 Montana Reserved Water Rights Commission, 3823 Montana test, 3931 Montana v. United States, 1775, 1909, 2192, 2407, 2412, 2499 Montauk Indians, 1068 Montauk Tribe of Indian v. Long Island R. Co., 1806 Montezuma, Carlos, 1153 Mooney, James, 2932 Mormons, 704 Morton v. Ruiz, 4977

625 motor fuel contracts, 1491 Mount Graham, 3046, 3048 Muckleshoot Indians, 4233 multiculturalism, 1362 Muscogee Creeks, 279, 493. See also Creek Nation Muscogee Nation, 1374. See also Creek Nation museums, 3071; American Museum Association, 3185; bid for control of skeletal remains by, 3169; rules process for repatriation created by, 3151 mutuality, 1870 Myer, Dillon, 831 NAACP. See National Association for the Advancement of Colored People NAC. See Native American Church NAGPRA. See Native American Graves Protection and Repatriation Act Namen, James, 3997 Narragansett, 978 Narragansett Indians, 4530 National Association for the Advancement of Colored People (NAACP), 1817 National Center for State Courts, 1872 National Conference of Commissioners on Uniform State Laws, 1969 National Congress of American Indians (NCAI), 1049, 1121, 1797, 1943 National Council on Indian Opportunity, 859 National Dialogue on Museum/Native American Relations, 3105 National Environmental Policy Act (NEPA), 3718, 4392 National Farmers Union Insurance Cos. v. Crow Tribe, 1706, 1879, 1898, 2192–93, 2256 National Gambling Impact Study Commission, 4662 National Historic Preservation Act, 3026, 3164 National Indian Forest Resource Management Act, 3761 National Indian Policy Research Institute, 870 nationalism, 619 National Museum of the American Indian, 3259 National Museum of the American Indian Act, 3163 National Parks, 5437 National Park Service, 2530, 5442 National Sacrifice Area, 4303 National Water Commission Report, 3976 Native American Church (NAC), 2921

626 Native American Free Exercise of Religion Act of 1993, 2818 Native American Graves Protection and Repatriation Act (NAGPRA), 202, 224, 3054, 3071; burden of proof in, 3162; federal funding limitations of, 3103; Kennewick man and, 3081–82; scientific study and, 3136; tribal burial sites protected by, 3124 Native American Historical Commission, 3259 Native American Law Center, 1937 Native American rights. See Indian rights Native American Rights Fund, 1797, 1817 natural resources, 213 Navajo Environmental Protection Commission, 4401 Navajo–Hopi Land Settlement Act of 1974, 2543 Navajo Nation, 292, 294, 300, 1961, 3576; civil rights in, 1634; common law adversary court system in, 1667; Common Law Project, 1558; concept of justice in, 1625; Council Reforms of, 1417; dispute resolution in, 1684; economic development of, 3575; energy resource development of, 4317; Hopi and, 2456, 2467; horizontal justice system of, 1633; Indian New Deal and, 927, 940; Justice and Harmony Ceremony, 1557; land allotment and, 774; land claims of, 2435, 2555; legal revolution in, 1562; litigation to protect sacred sites by, 3016; MacDonald and, 1363; microenterprises in, 3691; Navajo Environmental Protection Commission, 4401; Navajo–Hopi Land Settlement Act of 1974, 2543; Navajo Tribal Council, 114, 256, 267, 3407, 4368; oil/gas development in, 4325; Pascua Yaqui and, 1481; peacemaking in justice system of, 1645, 1650, 1701, 1733–34; peyote religion of, 2898; police systems of, 2015; political systems of, 1479, 1487; poverty of, 4347; prohibition in, 5061; rape custom of, 1637; restorative justice in, 1632; self-determination of, 914; small business in, 3557; Supreme Court of, 1721; tribal courts of, 1667; tribal government of, 114, 256, 267, 1456; tribal law of, 1633; as underdeveloped colony, 3475; United States v. Navajo Nation, 1213; uranium mining in, 4258; Wilson v. Block and, 3037; Winters

Subject Index rights quantified by, 3884; Yaa Da’ Ya, 1691 Navajo Peacemaker Court, 1645 Navajo Supreme Court, 1721 Navajo Tribal Council, 114, 256, 267, 3407, 4368 NCAI. See National Congress of American Indians Nebraska, 3195 negotiation, 3922, 4420 Nelson Act of 1889, 304 neo-classical economics model, 3660 neocolonialism, 1986 NEPA. See National Environmental Policy Act net fishing, 4193 Nevada v. Hicks, 1818, 2215, 2221, 2274 New Institutional Economics, 3660 Newman v. State, 3169 New Mexico: American occupation of, 3179; land claims in, 2429; New Mexico Supreme Court, 3179; New Mexico Supreme Court decisions on child support/property diviison, 4954 New Mexico Supreme Court, 1547, 3179, 4954 New Mexico v. Mescalero Apache Tribe, 4122, 4172 newspapers, 3238 New York: land claims in, 1501, 2728; Onandaga Nation in litigation with, 3124; peacemaker courts in, 1683; tribal gaming in, 4747; in war over sovereignty, 1511 New York State Indian Law, 1459 New Zealand, 2989 Nez Percé Indians, 328, 354, 378, 1353 Nez Percé War, 2557 1906 Antiquities Act, 3086, 3148 1924 Citizenship Act, 859 1936 Oklahoma Indian Welfare Act, 1402 1938 Indian Mineral Leasing Act, 4358 1938 Omnibus Tribal Leasing Act, 4270 1938 Tribal Mineral Leasing Act, 4328 1964 Civil Rights Act, 3428 1964 Economic Opportunity Act, 1983 1967 Age Discrimination in Employment Act, 3633 1970 Comprehensive Drug Control and Abuse Act, 3728 1973 National Water Commission, 3779 1980 Steelhead Conservation and Enhancement Act, 4181 1982 Indian Mineral Leasing Act, 4302 1982 Tribal Tax Status Act, 4857 1983 Land Consolidation Act, 805 1986 Tax Reform Act, 4857 1990 Indian Child Protection and Family Violence Prevention Act, 4901 1994 Violence Against Women Act, 5136

1999 Religious Liberty Protection Act, 2807 Nisqually Indians, 4233 Nixon, Richard, 1085, 1095, 1124, 1161, 3006, 4503, 5181 non-Indians, 2588; battles for control over, 3398; Colville Confederated Tribes v. Walton and, 3883; foster care by, supported by state courts, 4966; Indian Bill of Rights and, 3407; Indian Civil Rights Act and, 1536; land claims with, 2622; taxation on, 4755, 4803; tribal sovereignty and, 4855 non-trust lands, 2340 North Carolina, 1028, 2173, 3271 North Dakota, 492; Devils Lake, North Dakota, 2751; Indian Civil Jurisdiction Act of, 2284; land claims in, 2783; Spirit Lake Tribe v. North Dakota, 2751 Northern Cheyenne Reservation, 3737, 5001 Northern Ute Reservation, 4107 Northwest Powers Act, 4076 nuclear power, 4461 nuclear testing, 33 nullification crisis, 1860 Office of Indian Affairs, 137 Office of Trust Responsibilities, 1242 Oglala Sioux Tribal Court, 5009 Ohlone, Muwekma, 998, 1027 oil/gas development, 123, 1792, 2092, 3186; in Alaska, 5280; Amoco v. Campbell supporting in Alaska, 5170; Cherokee Nation v. Oklahoma considering, 4271; exploration, 4315; failure of, in Navajo Nation, 4347; lease terms/royalty rates as issues in, 4365; in Navajo Nation, 4325; Navajo Tribal Council and, 256 Oil Pollution Act, 4453 Oklahoma, 3195; colonization by Seminole in, 667; IGRA circumvention by, 4692; land allotment in, 765; land law in, 2500; motor fuel contracts in, 1491; tobacco compacts in, 1491; tribal courts in, 1639 Oklahoma Indians, 312, 968 Oklahoma Supreme Court, 1888 Oklahoma Tax Commission v. Graham, 4760 Oklahoma Tax Commission v. Sac and Fox, 2281 Okmulgee Indians, 1425 Oliphant v. Suquamish Indian Tribe, 182, 215, 884, 1731, 1783, 1826, 2295, 2308, 2329, 2341, 2351, 3417, 3454;

627

Subject Index aftermath of, 2381; American Indian Nations Supreme Court and, 2373; non-reservation resident influenced by, 4513; weakening of tribal law enforcement through, 2384 Omaha Treaty of 1854, 2611 Omaha Tribe, 322 Onandaga Nation, 313; cultural items of, 3065; economic development of, 3556; New York sued by, 3124 Oneida Nation, 309; land claims of, 2654, 2724, 2774; net fishing in, 4193; police force of, 1997 Oneida Nation v. County of Oneida, 2728, 2774 “one man one vote” principle, 3383 Oregon, 2542, 2923, 4202 Oregon Department of Fish and Wildlife v. Klamath Indian Tribe, 4202 Oregon v. Smith, 2923 Osage Indians, 2092; Catholic Church and, 2865, 2895; constitutional government of, 1458; oil developed under Foster Lease by, 4290; Osage National Council, 4290; removal of, 576; reservation of, 2602; voting rights for, 3363 Osage National Council, 4290 Osage reservation, 2602 Ottawa Indians, 1612, 2643, 4123 Owen, Robert Latham, 1300 Oyler, Jimmy D., 1056 Pacific Northwest, 686 Padilla v. Pueblo of Acoma, 1547 Paiute Indians, 299, 4436 paleontogical activities, 3095 pan-Indianism, 223, 1110, 1147 Papagos Indians, 1983, 2632 papal grant, 2577 parental rights, 5211 Parker, Arthur Caswell, 1182 Parker, Isaac C., 1762 Parker, Quanah, 1351 Pascua Yaqui Indians, 1038, 1481 Passamaquoddy, 978 Passamaquoddy v. Morton, 1238 pastoralists, 3576 Pataki, George, 4800 paternalism, 827, 879 Pawnee Indians: land claims of, 2795; removal of, 3195; repatriation efforts of, 3096 Payne, David L., 2575, 2576 Peabody Coal Company, 4279, 4360, 4376 peacemaker courts: in Michigan, 1660; of Navajo Nation, 1645, 1733–34; in New York state, 1683; reoffending rate of, 1673

peacemaking, 1701 The Peace of 1763, 2455 Peace of Paris 1783, 2728 Pellerin, Marvin, 3633 Peltier, Leonard, 1172, 1189 Penn, William, 513 People v. Jack Woody, 2798, 2921 Pepper v. Dennison, 1471 permit law, 2487 peyote: sacramental use of, 2943; spiritual uses of, 2900; trade in, 2931; in tribal ceremony, 2953 peyote religion, 1960, 2033; Free Exercise Clause and, 2901; livestock reduction program and, 2898; NAC and, 2956; religious freedom and, 2914; Smith v. Employment Division and, 2909 PIA. See Practicably Irrigable Acreage Picotte, Susan LaFlesche, 1171 Pilgrims, 1575 Piman tribe, 1447 Pine Ridge Reservation, 805 Pipestone, 5438 P. L. 280, 2199, 2202–3, 2249, 2263, 3263 Plains Indians, 295; Great Plains Reservation Tribal Police Department, 1995; leadership of, 1453; police systems of, 2005; removal of, 616 plenary power doctrine, 169, 840, 2329; origins of, 5368; subject-matter limitation, 1269; tribal sovereignty and, 1279; U.S. Constitution and, 1258 Poarch Band of Creek Indians v. Alabama, 1523 Poitra v. Demarrias, 1765 police systems, 1716, 1995; in Civil War, 2011; Indian Patrol of Minneapolis, 1119; in Navajo Nation, 2015; of Oneida Nation, 1997; in Plains Indian culture, 1995, 2005; on reservations, 2019; San Carlos Apache, 1998; tribal police forces, 2011 political influence, from tribal gaming, 4662 political parties, 3365; American Indian issues influence on, 645; Democrats, 3374 political process, tribal courts and, 1646 political systems: of Apache/Sioux, 1319; of Arapahoe, 1335, 1339; of Montana Indian reservations, 141; of Navajo, 1479, 1487; of Stockbridge-Munsee Indians, 1427; of Zuni, 1331 politics, Indian power in, 3374 pollution: on Akwesasne Mohawk Reservation, 4422; tribal sovereignty and, 3862

Poncas, Sioux and, 599 Poor Bear-Little Hoop Cross, Mary, 2698 Porter, Tom, 1415 Potawatomi Nation, 341, 413, 631 Potawatomi Treaty of 1833, 367 Potts, Jim, 1664 poverty, 162, 3642; in Navajo Nation, 4347 Practicably Irrigable Acreage (PIA), 4009 preemption, 4782. See also federal preemption theory prejudice, 1267 Presbyterian missionaries, 751 Pretty-on-Top, Janine Pease, 5046 Pribilovians, Alaska Native Brotherhood supporting, 5237 prior appropriation. See doctrine of prior appropriation prisoners of war, Apache, 595 private market economy, tribal communities and, 3623 private property, tribal people concepts of, 3483 probate, 5428 Proclamation of 1763, 2455 prohibition: alcoholism and, 5070; on Navajo reservation, 5061 promise keeping, 1235; The Final Promise, 849 propertization, 3249 property division, Lonewolf v. Lonewolf on, 4954 property rights: of Cherokee Nation, 2405. See also land claims Proposition 5, tribal gaming and, 4570 protest, 1136 public freedom, 1235 Public Health Service, 23 public interest exception, 3239 public land resource management, 3186 public trust, 1250 Pueblo Dance Controversy, 1195 Pueblo Indians: Acoma/Laguna, 3179; Albuquerque in dispute with, 3851; Cochiti Pueblo theocracy, 3528; land claims of, 2531; water rights of, 3781 Puget Sound Indians, 5099 Puget Sound, Washington, 3292 Pumpkin Seed, Patrick, 2698 punishment: among Iroquois, 1598; laws of Choctaw on, 1573; methods of Seminoles for, 2161. See also imprisonment; justice system(s) Puyallup Indians, 2519, 4233 Pyramid Lake tribe, 4072 Quapaw Indians, 2566 Quick Bear v. Leupp, 5034 Quiet Title Act, 2751 Quinault Indian Nation, 1090, 3751

628 racism, 70, 1265, 2133, 2146, 2266, 2354; before/after Thirteenth, Fourteenth, Fifteenth Amendments, 3324; on Flathead Reservation, 1340; hiring practices and, 3472; imprisonment and, 2079; legalized, 1093; logos and, 3237; in South Dakota, 2052; tribal law and, 1544 railroad abandonments, 2602 railways, 2510 Rainbow Bridge, 3025 ranching, 3737 rape, 1637, 5122. See also homicide Reagan, Ronald, 851, 1084 real estate market, 4993 realists, 3249 recognition: of Houma, 990; of Indians in North Carolina, 1028; of Shoshone, 1005 reconciliation, 1592 Red Dog, Florence, 5009 Red Lake Tribal Court of Indian Offenses, 1682 “Red Power,” 287, 1124, 1200 “redskin,” as vulgarity, 3222 red squirrel, 3048 reef nets, 4093 regulations, 4328 rehabilitation, 2146 Rehner v. Rice, 5063 Rehnquist, William, 1773, 1788, 1790, 1818, 2829, 4873 Reindeer Industry Act, 5191 religious freedom, 4, 105, 224; encroachment on, 2940; Establishment Clause used against, 2850; Free Exercise Clause and, 2961, 2966; imprisonment and, 2055, 2081; peyote religion and, 2914, 2966; road construction and, 2980; U.S. Supreme Court and, 2915; U.S. Supreme Court denying, 2861 Religious Freedom Restoration Act (RFRA), 2820, 2826, 2838, 2849, 2893 religious schools, 5034 relocation, 125, 5097 rem forfeiture, 2361 removal, 26, 125, 5097; of Apaches, 661; of Cherokee, 544, 579; of Chickasaw, 552; of Choctaw, 543, 552, 565; of Comanches, 630; of Creek Indians, 591; Indian Removal Act of 1930, 556; of Indians from Kansas, 631; of Miami, 545; in Oregon, 2542; of Osage, 576; of Pawnee Indians, 3195; of Plains Indians, 616; of Potawatomis, 631; of Seminole, 553; of Shawnee, 642; of Wyandots, 613 Renaldi, 2064

Subject Index Reno, Janet, 1713 reoffending rate, 1673 reparations, 4910 repatriation: Arizona laws on, 3062; ethics of, 3106; Pawnee Indians efforts with, 3096; of skeletal remains, 3215; through Smithsonian Institution, 3073; through Society for American Archaeology, 3144 reservation commercial waste disposal, 4503 reservations, 75, 4772; agencies and, 715; Agua Caliente Reservation, 3612; Akwesasne Mohawk Reservation, 4422; in Alaska, 5252; of Alaska Natives, 5180; Blackfeet Reservation, 2253; checkerboard, 2250; Cheyenne River Reservation, 1900; child protection pecking order on, 4975; Coast reservation, 2542; Coeur d’Alene Reservation, 1341; commercial waste disposal on, 4503; cultural displacement and, 3642; economic development of, 3519; Flathead Reservation, 1340; Fort Apache Reservation, 4483; Fort Belknap Reservation, 3823; Fort Berthold Reservation, 4976; Gila River Indian Community, 3953; Great Plains Reservation Tribal Police Department, 1995; jurisdiction on, 2167; Klamath Reservation, 1015, 3769, 3871; land allotment and, 710; light industry on, 3660; Lower Brulé Reservation, 767, 3671; in Montana, 141; Northern Cheyenne Reservation, 3737, 5001; Northern Ute Reservation, 4107; Osage, 2602; in Pacific Northwest, 686; police systems on, 2019; poverty and, 3642; resource development of, 4269; Rosebud Sioux Reservation, 1304, 4983, 5035; Round Valley Reservation, 672; Seminole Nation and, 675; sustainable market enterprises on, 3510; as tourist destinations, 4592; tribal children born off of, 4944; Uintah Valley Reservation, 721, 3354, 3842; U.S. Department of Interior approving business transaction on, 3700; Warm Springs Reservation, 282; Wenatchi Fishing Reservation, 697; Wichita Reservation, 683; Wind River Reservation, 2588, 4025; Yakama Reservation, 788 reserved right theory, 3861 resistance, 1136, 1175 Resource Conservation and Recovery Act, 2182, 4383

resource development, 164 resource management, 5365 restorative justice, 1632, 1692 retribalization, 55 retrocession, 2158 revenge, law of, 1556 RFRA. See Religious Freedom Restoration Act rhetorical exclusion, 1189 Rice v. Rehner, 5083 Richland Man, 3054 Ridge, John Rollin, 655, 668 “right of conquest,” 1849 rights, 247; constitutional, 5029; environmental, 4451; mineral, 180; parental, 5211; property, 2405; states, 532; women’s, 5132. See also aboriginal rights; civil rights; fishing rights; human rights; hunting rights; Indian rights; land rights; treaty rights; tribal rights; usufructuary rights; voting rights; water rights; Winters rights; individual rights “rights of bones,” 3206 riparian rights, 3997 ritual, 3230 road construction, 2980 Rodman Wanamaker Expedition, 3266 Rogers, William C., 1306, 2296 Rogers, William S., 1836 Roosevelt, Franklin D., 2471 Roosevelt, Theodore, 1138 Rosebud Sioux Reservation, 1304, 3537, 4983, 5035 Rosebud Sioux Tribe v. Kneip, 725, 1494 Roselius, Kristine, 1527 Round Valley Reservation, 672 royal grant, 2577 royalty arrangements, 4315, 4365 rules process, 3151 Sachs, Noah, 4482 sacred ground, 2971 sacred mountains, 3016 sacred sites, 125; Blue Lake, 2973; Establishment Clause and, 3008; historic preservation of, 3113; of Hopi Nation, 3016; legislative solutions for protection of, 2989; National Historic Preservation Act protecting, 3026; of Navajo Nation, 3016 Safe Drinking Water Act, 3832, 4045 Salish. See Confederated Salish Tribe Salish Kootenai democracy, 3528 Salmon and Steelhead Conservation and Enhancement Act, 4083 salmon fishing, 4075, 4104, 4215 San Carlos Apache Indians, 3520 San Carlos Apache Police, 1998

Subject Index San Carlos Apache Tribe decision, 3964, 4057 San Francisco Peaks, 3037 Sangre de Christo Development v. City of Santa Fe and Board of County Commissioners of Santa Fe, New Mexico, 2242 Santa Clara Pueblo v. Martinez, 888, 1585, 1810, 1826 Santa Rosa Band of Indians v. Kings Country, 2195 Scares the Hawk, 2044 schools, 137, 205, 5045 scientific study, 3136 search warrants, 2359 secession. See tribal secession Secretary of the Interior, 2430, 2871 Secret Dance File, 2842 Section 184 lien rules, 4993 Sekaquapta v. MacDonald, 1743, 2555 self-determination, 950, 1049, 1235, 1887, 2031, 2318, 3407; activism and, 162; BIA on, 2124; of Choctaw, 311; Clinton and, 1507; Collier’s support for, 5028; economic development as foundation for, 3594; as economic quest, 3483; of El Cajon Tribe, 4643; EPA and tribal, 4403, 4503; ICRA and, 3450; Indian Self-Determination and Education Assistance Act, 11, 817, 1087, 1094, 1097–98, 1285; international law and, 5305; of Navajo Nation, 914; policies on, 1085, 1096, 1101; successful tribal government and, 3528; tribal attorneys and, 1950; trust relationship and, 1211; Winnebago and, 2309 Seminole Nation, 283, 420; Black Seminoles, 3315; colonization in Oklahoma by, 667; deer tick epidemic and, 943; economic development of, 4549; Florida history of distrust with, 4008; freedmen and, 3348; land claims of, 2634; punishment methods of, 2161; removal from Florida, 553; reservations and, 675; Seminole Treaty of 1866, 420; Seminole Tribe v. Florida, 1519–20, 1835, 4611, 4642, 4655; termination and, 329, 1020; tribal administration of, 1464; tribal gaming and, 4541; water agreement with Florida/South Florida Water Management District, 3943 Seminole Tribe v. Florida, 1519–20, 1835, 4611, 4642, 4655 Senate, 848, 3417 Seneca Indians: constitutional governments of, 1436–37; Grand Island and, 2675; land leases of, 2478; tribal remains repatriated by, 3055

sentencing, 2023, 2138 Sequoyah Statehood, 1413 Sequoyah v. Tennessee Valley Authority, 2798 Settler, Alvin, 4216 1749 Wiscaseet Incident, 2078 1788 Cayuga Treaty, 1008 1794 Jay Treaty, 392 Severalty Act, 1183 severance taxes, 4754 sexual harassment, 2147 Seymour v. Superintendent, Washington State Penitentiary, 2264 Shawnee Indians, 642, 1056 Shawnee Treaty of 1854, 1056 Shepard’s First Mortgage Corp., 4993 Sherbert v. Verner, 2942 Shiprock Research Center, 4346 Shoshone Indians, 907, 2588; FMC Corporation and, 3602; land claims of, 2645, 2772; recognition of, 1005; treaties of, 536; water rights of, 3904 Silvas, Marty, 4705 Sioux Indians, 150; Devil’s Lake Sioux Tribe v. North Dakota Public Service Commission, 2287; dinosaurs and, 795; Great Sioux Nation Judicial Support Center, 1712; land claims of Yankton, 2679; land treaties of, 432; Mdewakanton, 1036; Oglala Sioux Tribal Court, 5009; political system of, 1319; Poncas and, 599; Rosebud Sioux Tribe v. Kneip, 725, 1494; Sioux War of 1862, 687; South Dakota v. Yankton Sioux Tribe, 2166; Standing Rock, 3383; treaties of, 402, 442, 479, 539; United Sioux Tribes of South Dakota, 2184; United States v. Sioux Nation of Indians, 2666, 2697; U.S. Supreme Court abrogating control of, 4221; Waccamaw, 1028 Sioux War of 1862, 687 skeletal remains, 3169, 3215 slavery: Cherokee Nation and, 1565; Creek Nation and, 1569; of Indians, 581; women’s issues and, 602 slurry pipelines, 4046 small business, 3557 Smiley, Albert, 1106 Smithsonian Institution: Cheyenne Indians and, 3215; National Museum of the American Indian Act supporting, 3163; repatriation through, 3073 Smith v. Employment Division, 2886, 2909, 2934, 2943, 2967 Snake Dance, 2872 Snake, Reuben, 1333 Snoqualmie, 1070 Snyder Act, 1078, 5017, 5091

629 social contract theory, 58, 215 social scientist, 2600 social security numbers, 3036 social services, 1513 social structures, 882 Society for American Archaeology, 3144 socioeconomic class, 3492 soft-selling, 3602 soil conservation, 911 Solem v. Bartlett, 679 solidarity, 10 South Carolina, 2706, 2794 South Carolina v. Catawba Indian Tribe, 2794 South Dakota: Lake Traverse Reservation in, 2601; racism in, 2052; South Dakota v. Bourland, 4221; South Dakota v. Yankton Sioux Tribe, 2166; tyrannosaurus rex controversy in, 3095 South Dakota v. Bourland, 4221 South Dakota v. Yankton Sioux Tribe, 2166 Southern Arizona Water Rights Settlement Act of 1982, 3872 Southern Utes, 907 South Florida Water Management District, 3943 Southwest Intertribal Court of Appeals (SWITCA), 1739 sovereign immunity, 2318, 3566, 3700, 4760 sovereignty, 2–3, 2164, 2564; of Cherokee, 491, 783; civil rights and, 1310, 5124; doctrine of dual, 2064, 2162; double jeopardy and, 2162; European attitudes toward, 61; Full Faith and Credit Act, 1880, 1905, 1917, 1928; of Haudenosaunee, 255; “historical sovereignty” in Rice decision, 5083; international law and, 2318; of Iroquois, 259; land claims and, 180; limits of, 12; New York in war over, 1511; origins, 76; over paleontogical activities, 3095; plenary power doctrine and, 1279; rail lines and, 2510; second founding of America, 47; states and, 491, 1497; tribal identity and, 1939; tribal immunity, 40; tribal negotiation with states and, 25; U.S. Constitution and, 489; U.S. Supreme Court and tribal, 1878, 2298, 2333. See also tribal sovereignty Spanish land grants, 2488. See also land claims Spanish rule, 39, 3793, 3903 spear fishing, 459, 4173 Spirit Lake Tribe v. North Dakota, 2751 Spotted Tail, 2045

630 Squire v. Capoeman, 4794 Standing Bear, 1129 Standing Rock Sioux tribe, 3383 state authority, 2358; federal preemption theory and, 2374; U.S. Supreme Court on, 4873; in water rights issues, 4017 state constitutions, 4548 state courts: foster care by non-Indians supported by, 4966; as violators of ICWA, 4879; water rights adjudicated by, 3912; water rights managed by, 4006. See also state authority State ex. rel. Department of Human Services v. Jojola, 4954 State ex.rel. Firecrow v. District Court, 4911 state interference, 4558, 4570, 4632 state jurisdiction, 138 state municipalities, 2653 State of Arizona v. Mary Attakai, 2953 The State of Minnesota v. Prairie Island Indian Community, 4714 state sovereign immunity, 4521 state sovereignty, 4539, 4642 states rights, 532 state taxes, 4800, 4810, 4824 state–tribal agreements, 2289 state–tribal relations, 1513; Eleventh Amendment and, 4611; ICWA implementation issues and, 4967; tribal gaming conflicts in, 4704 State v. Hook, 2369 State v. Matthews, 2358 State v. Rufus, 2339, 2340 statutory claims, 1253 statutory violations, 97 Stevens, Ernie, 4672 Steven Sharber v. Spirit Mountain Gaming Inc., 4737 stewardship, 1241 Stockbridge - Munsee Indians, 952, 1427 storytelling, 3261 Straight Head, 2044 Strate v. A-1 Contractors, 1935, 2190, 2192 stream flow protection, 3986 strip mining, 4279 subject matter jurisdiction, 3700 subjugation, 1265 submerged lands, 2744 subsistence, 3519 subsistence privileges, 5220 superior culture theory, 1235 supremacy clause, 4830 Supreme Court, 3, 7, 205, 207, 721, 1747, 1753, 1774; abrogation of Sioux control, 4221; Brendale v. Confederated Tribes & Bands of Yakama Indian Nation, 2183, 2200, 2288, 4404; Cherokee Nation v.

Subject Index Georgia, 1846; Cherokee Nation v. Oklahoma, 4271; Chevron v. Natural Res. Def. Council, 4404, 5390; Choate v. Trapp, 1271; Cobell v. Babbit, 1222, 1229; colonialism supported by, 3428; Colorado River Water Conservation District v. United States, 3912; Colville Confederated Tribes v. Walton, 3780; County of Yakima v. Confederated Tribes & Bands of the Yakama Indian Nation, 4863; cultural pluralism and, 1813; denial of religious freedom by, 2861; diminishment cases and, 692; disappointing opinions of, 840; on double jeopardy, 2101; Duro v. Reina, 2311, 2319, 2348, 2394, 2400, 2402; federal-tribal history of, 238; Hagen v. Utah, 718, 721; Highrock v. Gavin, 772; Hodel v. Irving, 2698; “implicit divestiture theory” and, 68; Indian Country definitions changed by, 5243; Indian Country in Alaska reduced by, 5156; inherent sovereignty and, 1878, 2298, 2333; insurance companies and, 1897; Iowa Mutual Insurance Co. v. LaPlante, 1879, 2253; Johnson v. M’Intosh, 1261, 1845, 1847, 1861; Keeple v. United States, 2399; Kiowa Tribe v. Manufacturing Technologies, Inc., 1528; Lone Wolf v. Hitchcock, 1256–57, 1277, 2759, 3781; Mancari case, 3472; Mississippi Band of Choctaw Indians v. Holyfield, 4921, 4944; Montana decision, 3832; Montana v. United States, 1775, 1909, 2192, 2407, 2412, 2499; National Farmers Union Insurance Cos. v. Crow Tribe, 1706, 1879, 1898, 2192–93, 2256; Nevada v. Hicks, 1818, 2215, 2221, 2274; Oklahoma Tax Commission v. Graham, 4760; Oliphant v. Suquamish Indian Tribe, 182, 215, 884, 1731, 1783, 1826, 2295, 2308, 2329, 2341, 2351, 2373, 2381, 2384, 3417, 3454, 4513; Oneida Nation v. County of Oneida, 2728, 2774; PIA established by, 4009; power conflict in, 1515; religious freedom and, 2915; Rice v. Rehner, 5083; Rosebud Sioux Tribe v. Kneip, 725; Santa Clara Pueblo v. Martinez, 888, 1585, 1810, 1826; Seminole Tribe v. Florida, 1519–20, 1835, 4611, 4642, 4655; Sherbert v. Verner, 2942; shift to emphasis on state water law rights by, 4057; Smith v. Employment Division, 2886, 2909, 2934, 2943; Solem v. Bartlett, 679; South Carolina v. Catawba Indian

Tribe, 2794; on state authority to tax, 4873; taxation on Indian reservations considering, 4754; Tee-Hit-Ton Indians v. United States, 3770; Three Affiliates Tribes v. Moe, 1284; on treaty construction, 380; on tribal sovereignty, 4493; United States v. Aam, 2520; United States v. Akin, 3912; United States v. Alcea Band of Tillamooks, 2683; United States v. Kagama, 1271, 2372; United States v. Lara, 2390; United States v. Maguire, 1775; United States v. Mitchell, 1218, 3742; United States v. Navajo Nation, 1213, 1244; United States v. Rogers, 1836; United States v. Sioux Nation of Indians, 2666, 2759; United States v. United States Fidelity and Guaranty Company, 1529; United States v. Washington, 1053; United States v. Wheeler, 1826; United States v. White Mountain Apache, 1244; U.S. Congress and, 2896; white landowners and, 723; Williams v. Lee, 1754, 1771; Worcester v. Georgia, 1860; Youupee v. Babbitt, 782, 805; zoning ruling of, 2201 surface water, 3921, 3976 sustainable market enterprises, 3510 Sweet, E.M., 2872 SWITCA. See Southwest Intertribal Court of Appeals symmetry, 1934 Taney, Roger, 1836, 2296 Taos Pueblo Indians, 3006 taxation, 3475, 4315; on allotted lands, 4843; Burke Act supporting state taxes, 4824; on cigarettes, 4820; dual, 4781; Minnesota reservation tribal income subject to, 4761; on nonIndians, 4755, 4803; severance taxes, 4754; state taxes, 4800; state tax law to tax tribal members, 4810; state/tribal historical conflicts with, 4873; tax code supporting tribal sovereignty, 4822; tribal income and, 4725; U.S. Supreme Court considering tribal, 4754 Taylor, Wayne, 900 team mascots, 3239 technology skills, 3502 Tee-Hit-Ton Indians v. United States, 3770 Tennessee, 456 termination, 223, 291, 1081; of Alaska Native sovereignty, 5274; California tribes favoring, 818; of Menominee, 969; relocation and, 5097; Seminole and, 329, 1020

Subject Index Tewa Indians, 2488 Texas: Cherokee Nation and, 2589; treaties of, 528; tribal gaming in, 4602 Thirteenth Amendment, 3324 Thomas, Robert, 3492 Thomas, William, 3271 Three Affiliates Tribes v. Moe, 1284 Tigua Tribe, 1016, 4705 timber contracts, 3762 Timpanogos Tribe, 4134 Timpanogos Tribe v. Conway, 4134 Tinoquai–Chalola Council of Kitanemuk & Yowlumne Tejon Indians v. U.S. Dept. of Energy, 4391 tiospaye, 923 Tiquas, 1038 title examiner, 2533 Tlingit Indians, 958, 5148 tobacco compacts, 1491 tobacco companies, 5071 Tohono O’odham Indians, 3872 Toledo v. Publo de Jemez, 2806 Tolowa Indians, 2997 Tommie, Howard, 1373 tourist destinations, 4592 townsite planning, 2413 traditionalists, 3249 traditional values, 1382 Trail of Broken Treaties, 53, 1204 Trail of Tears, 609, 648 treaties: aboriginal title and, 2750; abrogation of, 333, 455, 840, 1265, 4221; of Arapahoe, 536; with Blackfeet, 473; Blackfoot Treaty, 397; of Cherokee, 386, 517; Chippewa Treaty of 1854, 375; with Choctaw, 347, 372; with Comanches, 405, 469; comprehensive listing of, 431; of conquest, 450; construction of, 458; U.S. Supreme Court and, 380; Creek American Treaty of 1790, 540; of Crow Indians, 429; Fort Laramie Treaty of 1851, 337, 716, 727; Fort Stanwix Treaty of 1768, 346, 467, 2724; of Haudenosaunee, 436; of Iroquois, 390; Kiowa–Comanche Treaty of 1865, 519; with Lakota Nation, 470; limitations on abrogation of, 4441; of Muscogee Creeks, 493; Omaha Treaty of 1854, 2611; Seminole Treaty of 1866, 420; 1794 Jay Treaty, 392; of Shoshone, 536; of Sioux, 402, 432, 442, 479, 539; of Tennessee, 456; of Texas, 528; Trail of Broken Treaties, 53, 1204; Treaty of Cusseta of 1832, 573; Treaty of Dancing Rabbit Creek, 565, 657; Treaty of Greenville, 503, 506, 508; Treaty of Ruby Valley of 1863, 2709; Treaty of Washington, 371; U.S.

Congress and, 236; Winnebago Treaty of 1832, 5017 treaty abrogation. See abrogation Treaty of Cusseta of 1832, 573 Treaty of Dancing Rabbit Creek, 565, 657 Treaty of Greenville, 503, 506, 508 Treaty of Ruby Valley of 1863, 2709 Treaty of Washington, 371 treaty rights, 247, 459, 4471 treaty violations, 97 tribal acknowledgement process, 1053. See also recognition tribal administration, 66, 933, 941, 1394, 1406, 1456, 1464. See also tribal government tribal artisans, 3250 tribal authority, 4512 tribal burial sites, NAGPRA protecting, 3124 tribal children: codes for, 1554; Holyfield decision supporting future for, 4899; off-reservation births of, 4944 tribal communities: ICWA supporting, 4912; lending arrangements with, 4993; private market economy to foster, 3623 tribal courts, 2279; in adversarial position with ICWA, 4887; Blackfeet Tribal Court, 1891; of Cherokee, 1719; cultural values and, 1680; of Hualapai, 1671, 1702; Indian Tribal Court/State Trial Court Forum, 1874; of Navajo Nation, 1667; Oglala Sioux Tribal court ruling on Florence Red Dog, 5009; in Oklahoma, 1639; peacemaking in Navajo, 1701; political process and, 1646; Red Lake Tribal Court of Indian Offenses, 1682; state/federal court deference to, 1877; tobacco companies in litigation in, 5071; Tuba City Family Court, 1725; of Upper Skagit, 1591 tribal crafts, 3250 tribal culture, 3547, 4592 tribal dependence, 4355 tribal education: constitutional rights abridged in, 5029; funding sources for, 5056; parental control of school boards in, 5045; Quick Bear v. Leupp, 5034; at Rosebud Sioux Reservation, 5035; for technology, 3502; Tribally Controlled Community Assistance Act of 1978, 5048 tribal exhaustion remedy, 3440. See also exhaustion doctrine Tribal Federal Jurisdiction Act, 1963 tribal fishermen, 4153 tribal fishing, 4143, 4244. See also fishing rights

631 tribal forests: logging of, 3760; National Indian Forest Resource Management Act, 3761; timber contracts for, 3762 tribal gaming, 125, 206, 219, 1753, 4244; bingo, 4570, 4749, 4790; casinos, 1627, 4602, 4632; compacts with states for, 4581, 4624, 4713; complexity theory and, 4683; crime increasing from, 4643, 4682, 4731; cultural compromises from, 3622; density of population and, 4559; distance to bingo competitor and, 4559; Fort McDowell Gaming Center, 4529; gambling influence on poverty from, 4592; gaming rights, 247; IGRA and, 4521, 4530, 4539, 4548, 4692; on internet, 4621; National Gambling Impact Study Commission, 4662; in New York, 4747; political influence from, 4662; proposition 5 and, 4570; regional popularity and, 4559; search for autonomy and, 4528; in Seminole Nation, 4541; state interference with, 4558, 4559, 4570, 4632, 4704; for tribal sovereignty, 4520; video lottery terminals in, 4692; video pull tabs, 4684 tribal government: Cochiti Pueblo theocracy, 3528; economics role in, 3482; ICWA supporting, 4922; Oliphant and, 3454; Salish Kootenai democracy, 3528; self-determination leading to successful, 3528; tribal membership and, 3264 tribal health care, 5008, 5017 tribal hunting, 4143, 4244 tribal identity, 1649; blood quantum and, 3334; sovereignty and, 1939 tribal immunity, 40, 1551. See also sovereign immunity tribal income, 137; IGRA influencing, 4731; taxation issues of, 4725; taxation on, in Minnesota, 4761 tribal interests: compromise between scientific interests and, 3136; First/Fourteenth Amendments protecting, 3169; as key to ICWA, 4886 tribalism, 11 tribal judges, 1641 Tribal Judges Conference, 1965 tribal jurisdiction, 3832 Tribal Land Enterprise, 1304 Tribal Land Environment, 750 tribal lands, 3602 tribal law: casinos and, 1627; of Cherokee Nation, 1608; decolonization through, 1631; Indian law and, 1933; of Navajo Nation, 1633; Oliphant v. Suquamish Indian

632 Tribe weakening enforcement of, 2384; of Ottawa Indians, 1612; racial connotations of, 1544; racism and, 1544; reconciliation as basis of, 1592 tribal law enforcement, 2384. See also police systems tribal lawyers, 1941; American Indian Lawyer Training Program, 2022; community lawyering, 1947; cultural values and, 1993 tribal leadership, 1289; for economic development, 3594; evolution of, 1485; federal cooperation with, 4382; nuclear power and, 4461; technology skills and, 3502 Tribally Controlled Community Assistance Act of 1978, 5048 tribally owned businesses, 1527 Tribal members, 3463 tribal membership, 6; bloodlines and, 3336; community status and, 3291; in Martinez, 3391; in Puget Sound, Washington, 3292; tribal government and, 3264 tribal names, 3239 tribal nations, 3151, 4492 tribal people, 3240, 3483 tribal police. See police systems tribal police forces, 2011. See also police systems tribal politics, 5133 tribal population, 3492 tribal power, 138 tribal punishment, 1555. See also punishment tribal relations, 3215 tribal remains, 3055 tribal resources, 1037; of Anishinaabe Indians, 4483; employment through utilization of, 3576; income generation through, 3594; of Navajo Nation, 3575 tribal restoration, 1061 tribal rights, 382, 532, 3792 tribal secession, 100 tribal slave codes, 1297. See also slavery tribal social customs, 4924 tribal sovereign immunity, 1542. See also sovereign immunity tribal sovereignty: Amoco Production Co. v. Southern Ute Indian Tribe threatening, 4334; congressional taxing authority as threat to, 4792; diminution of, 3450; discrimination and, 3439; environmental groups lack of knowledge of, 4494; Federal Tort Claims Act supporting, 5018; Martinez v. Santa Clara Pueblo and, 3438; non-Indian buyers and, 4855; pollution and, 3862; self-

Subject Index determination and, 3407; taxation and, 4362; tax code supporting, 4822; termination of Alaska Native, 5274; tribal gaming for, 4520; U.S. Supreme Court on, 4493 Tribal–State Compact Act of 1978, 817 tribal state gaming compacts, 4581 tribal subsistence, 5252 Tribal Supreme Court Project, 1797 tribal vision statements, 1299 tribal water codes, 3892 tribal wisdom, 3221 tribal women: Martinez decision on imagined, 5116; in tribal politics, 5133; among Yakama Indians, 5138 tribal workers, 3462 tribal zoning, 2263, 2265 tribe, 761, 2612, 3271 tribe survival, 3273 trophy hunters, 3195 Truckee–Carlson Settlement, 4072 Truman, Harry, 2782 trust doctrine, 1209 trust lands, 3710 trust relationship, 1250, 2564; federal welfare reform violating, 4976; selfdetermination and, 1211; trust responsibility and, 1231; between U.S. and Cherokee, 1252 trust responsibility, 1231 truth commissions, 5382 Tsali, 580 Tuba City Family Court, 1725 Tulalip Tribes, 958, 1937 Turn Key Casino, 4735 Turtle Mountain band, 739 2000 Religious Land Use and Institutionalized Persons Act, 2807 tyrannosaurus rex, 3095 Udall, Stewart, 854 Uintah Valley Reservation, 721, 3354 Umatilla, 354 Unassigned Lands, 2575 Uncompahgre Ute Indians, 4107 unemployment, 4913 Unfunded Mandate Reform Act, 1392 United Houma Nation, 1038 United Sioux Tribes of South Dakota, 2184 United States–Dakota War, 2042 United States v. Aam, 2520 United States v. Akin, 3912 United States v. Alcea Band of Tillamooks, 2683, 2740 United States v. Atterberry, 2602 United States v. Cappaert, 3774 United States v. Dann, 4105 United States v. Forenss, 1500 United States v. Idaho, 2163

United States v. Kagama, 1271, 2372 United States v. Lara, 2297, 2390 United States v. Maguire, 1775 United States v. Mitchell, 1218, 3742 United States v. Mitchell II, 3751 United States v. Navajo Nation, 1213, 1244 United States v. Rogers, 1836, 2296 United States v. Sioux Nation, 2759 United States v. Sioux Nation of Indians, 2666, 2697 United States v. United States Fidelity and Guaranty Company, 1529 United States v. Washington, 1053, 4086, 4113, 4165, 4182 United States v. Weaselhead, 2100 United States v. Wheeler, 1826 United States v. White Mountain Apache, 1244 United States v. Winans, 4153 University of Arizona, 3048 University of California, 4280 University of New Mexico, 1949 Upper Skagit Indians, 1591 uranium mining, 111, 4258, 4280, 4303, 4422 urban Indians: Chicago American Indian Community, 5093; federal relocation policy and, 5108; Indian ghettoes, 5097; Snyder Act supporting, 5091; Urban Indian Task Force, 5092 Urban Indian Task Force, 5092 urbanization, 5097 usufructuary rights, 334, 4210 Utah, 3222; McBride v. Utah, 3222; Uintah reservation and, 3842; Utah Supreme Court, 3354; voting rights in, 3354 Utah Supreme Court, 3354 Ute Indians, 3842, 4107 Ute Indian Water Compact, 3842 Vermont Supreme Court, 2761 video lottery terminals, 4692 video pull tabs, 4684 violence against women (VAW), 5123 Vizenor, Erma, 4672 voir dire examinations, 2053, 2077 voter turnout, 3373 voting rights: “one man one vote” principle, 3383; for Osage Indians, 3363; in Utah, 3354 Wabanaki confederacy, 2653 Waccamaw Sioux, 1028 Wacondo v. Concha, 2212 wage work, 3642 Walpi Project, 3053 Wampanoag Indians, 978, 993, 1575 wampum belts, 3124

633

Subject Index war: Apache prisoners of, 595; Black Hawk War, 414, 2159; Civil War, 34, 90, 2011; between Indians, 2456; New York in, over sovereignty, 1511; Nez Percé War, 378, 2557; Sioux War of 1862, 687; United States–Dakota War, 2042 wardship, 1225, 1241 Ward v. Racehorse, 4116 Warm Springs Indian Community, 1002 Warm Springs Indians, 2692 Warm Springs Reservation, 282 Washakie, 704 Washington Redskins, 3222 Washington State, 4383 Wash, William, 1385 water rights, 247, 3773; agreement in Florida, 3943; on allotted lands, 3892; cultural values and, 4066; Endangered Species Act and, 4382; federal courts v. state courts to manage, 4006; groundwater and, 3792, 3861; land allotment and, 3815; in Montana, 3802; Montana/Fort Peck tribes agreement over, 4035; Paiutes and, 299; of Pueblo Indians, 3781; of Pyramid Lake tribe, 4072; of Shoshone Indians, 3904; under Spanish rule, 3793, 3903; state authority in issues of, 4017; state courts adjudicating, 3912; tribal water codes, 3892; U.S. Congress to define more clearly, 3921; Ute Indian Water Compact, 3842; for wildlife uses, 4025 waterways, 2412, 2564 Wauneka, Annie Dodge, 1424 Wauneka v. Campbell, 2194 Wayne, Anthony, 507 Weaselhead, Robert Lee, 2100 welfare: dependency on, 4983; federal reform of, 4976; 1936 Oklahoma Indian Welfare Act, 1402. See also Indian Child Welfare Act welfare dependency, 4983 Well-Pleaded Complaint Rule, 5467

Wenatchi Fishing Reservation, 697 Weyerhauser Company, Inc., 3548 whaling: Hopson v. Kreps influencing, 5158; International Whaling Commission, 5140, 5158; Inuit adverse influences from bans on, 5200; Makah Indians and, 111, 4083, 4094 Wheeler decision, 2064 Wheeler–Howard Act, 63, 917, 1320 White Eagle, Melvin, 3383 White Eagle v. One Feather, 3383 White Earth Reservation, 524 White Hawk, Thomas, 327 white landowners, 723 White Mountain Apache Indians, 3520 White Mountain Apache Indian Tribe v. Shelley, 1548 White Mountain Apaches, 44, 1393 White Mountain Apache Tribal Museum, 3228 White Mountain Apache Tribe v. Bracker, 4865 White Plume, Alex, 3737 White River Ute Indians, 4107 Wichita Reservation, 683 Wickersham, James, 1751 wildlife uses, 3986, 4025 wild rice, 4154, 4234 Williams v. Lee, 235, 1754, 1771, 1898, 2180 Wilson, Dick, 1174 Wilson v. Block, 3037 Wilson v. Marchington, 1891 Wind River Reservation, 2588, 4025 Wind River tribes, 4143 Winnebago Indians, 2309 Winnebago Treaty of 1832, 5017 Winters decision, 3776; Fort Belknap Reservation and, 3932; groundwater influenced by, 3814; as measurement for tribal water use, 3975; military reservations, fisheries, wildlife uses included in, 3986; tribes determining rights based on, 3882 Winters rights, 3884, 3922

Wisconsin: Joan LaRock v. Wisconsin Department of Revenue, 4772; tribal affairs in, 1517; Wisconsin Supreme Court ruling on reservation lands, 4772; Wisconsin v. Yoder, 2828 Wisconsin Supreme Court, 4772 Wisconsin v. Yoder, 2828 Witchcraft Trial in Buffalo, N.Y., 1930, 2089 wolf. See Mexican wolf women’s issues, 111; Collier and, 5117; of Lakota, 5118; Native American, Mexican American, African American, 5114; rape, 5122; religious freedom, 2055; slavery and, 602; violence against women, 5123. See also tribal women women’s rights, 5132 Wood, Harlington, 1207 Worcester v. Georgia, 1860, 4841, 5333 World War I, 5457 World War II, 5452 Wounded Knee 1973, 190, 315, 1111, 1135, 1186, 1207 Wyandots, 613 Wyoming, 4025 Wyoming Supreme Court, 4025 Yaa Da’ Ya, 1691 Yakama Indians, 354; equal protection and, 2170; huckleberries and, 4134; oral tradition of, 401; women’s role in reservation life, 5138 Yakama Reservation, 788 Yazoo Land Act, 664 Yazzie, Robert, 1842 Yellowstone National Park, 5356 Yellowtail, Robert, 1361 Yeslta decision, 4602 Youupee v. Babbitt, 782, 805 Yurok Indians, 1291, 2997 Zitkala-Sa, 1151 zoning, 2201 Zuni Indians, 1331; cultural items of, 3065; research supported by, 3220

About the Authors

Wade Davies is an associate professor and chair of the Native American Studies Department at the University of Montana. His previous publications include Healing Ways: Navajo Healing in the Twentieth Century, as well as articles dealing with Navajo health care. He currently researches modern American Indian sporting traditions with a special emphasis on basketball. Richmond L. Clow is a professor in the Department of Native American Studies at the University of Montana. He has edited The Sioux in South Dakota History: A Twentieth Century-Reader and co-edited Trusteeship in Change: Toward Tribal Autonomy in Resource Management and Tribal Government Today: Politics on Montana Indian Reservations. He has authored numerous scholarly articles related to American Indian history and sovereignty, and has also served as a consultant in several legal cases.

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