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Domesticating Federal Indian Law
Open accessAbstract
As every schoolchild learns," the Supreme Court has said, "our Constitution establishes a system of dual sovereignty between the States and the Federal Government."'What schoolchildren-and almost all law students-do not learn is that this story of sovereignty is radically incomplete."Our Federalism" 2 came about through our colonialism.Accordingly, although sovereignty created by the United States Constitution is indeed dual, sovereignty within the United States is triadic: American Indian tribes have sovereignty as well.Precisely a century ago, the Supreme Court itself squarely recognized that tribal sovereignty is not "created by and springing from the Constitution," 3 but rather is an inherent sovereignty that "existed prior to the Constitution" 4 and is, therefore, not subject to it.5 Tribes today continue to exercise sovereignty in a
Overview
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Written from the paper’s full text.
TL;DR
This Article argues that congressional plenary power in federal Indian law, like plenary power in immigration law, arose from international-law notions of inherent sovereignty tied to colonization, and that it should be “domesticated” by subjecting it to domestic constitutional and interpretive limits. It proposes internationalizing the field—using emerging international indigenous-rights norms as a backdrop for constitutional and quasi-constitutional interpretation—while preserving tribal collectivity and sovereignty rather than mainstreaming Indians as individuals.
Key findings
- Plenary power in federal Indian law and immigration law developed from inherent sovereignty under international law: *Kagama*, the *Chinese Exclusion Case*, *Lone Wolf*, and *Sandoval* treated control over Indians and foreigners as a centralized national power, not one strictly enumerated in the Constitution.
- Reform cannot follow the same path in both fields: immigration law can be reformed individualistically and integrationist, but federal Indian law must retain collectivist, separatist, and unique legal elements because “uncoupling the tribal member from the sovereignty of her tribe would destroy most of what is unique and worth preserving in federal Indian law.”
- The Article proposes that international law both justifies a limited federal power over Indian affairs and supplies limits on it; it illustrates this through Takings and Free Exercise, arguing that Indian land is not fungible and that *Lyng* defined religious burden too narrowly.
- It reports that allotment deprived Indians of more than two-thirds of their land base between 1887 and 1934; that by 1992 the Black Hills judgment fund exceeded $315 million while the Sioux refused money; and that mid-twentieth-century Missouri River projects took over 550 square miles of Indian land and displaced over 900 Indian families.
Methods
- Doctrinal and historical legal analysis of Supreme Court decisions, including the Marshall trilogy, *Kagama*, *Lone Wolf*, *Sandoval*, the *Chinese Exclusion Case*, *Seminole Tribe*, and *Lyng*, along with treaties, statutes, and scholarly commentary.
- Normative reconstruction comparing federal Indian law and immigration law, then applying international-law and international human-rights norms to constitutional interpretation and canons of construction.
- No empirical data collection or statistical analysis; the argument is interpretive and prescriptive.
Limitations
- The paper states that its normative and empirical judgments are “subject to debate” and that it is not the place for a “full-blown defense” of its working assumptions.
- It acknowledges tension between express-powers and inherent-power models of congressional authority and says the conflict may not be definitively resolvable today.
- Evident from the text: the argument is doctrinal and normative rather than empirical, and it relies on contested claims about the domestic relevance of international law and the normative attractiveness of tribal sovereignty.
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Claims the paper makes
120 Own interpretation · 79 Sources not found · 15 No basis given · 5 Not checked yet
In the paper
“The Court then forthrightly rejected the only theory put before it that might straightforwardly reconcile the statute with Article I-that the law was somehow within congressional authority under the Indian Commerce Clause-because the law lacked any substantial nexus with commerce.”
§ Domesticating Federal Indian Law > 1996]
What the sources say
- Not matchedcites Kagama, 118 U.S. at 378-79
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In the paper
“It upheld the authority of Congress to enact legislation 15 criminalizing conduct between members of an Indian tribe while on its reservation.”
§ Domesticating Federal Indian Law > 1996]
What the sources say
- Not matchedcites Kagama
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In the paper
“In Lone Wolf, the Court concluded that exercises of congressional authority over Indian affairs were nonjusticiable political questions.”
§ Domesticating Federal Indian Law > 1996]
What the sources say
- Not matchedcites Lone Wolf v. Hitchcock, 187 U.S. 553 (1903)
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In the paper
“In reaching this conclusion, the Court conjoined the plenary power over Indian affairs with a similarly expansive authority over immigration recognized in the Chinese Exclusion Case.”
§ Domesticating Federal Indian Law > 1996]
What the sources say
- Not matchedcites Chinese Exclusion Case, 130 U.S. 581 (1889)
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In the paper
“the Court assumed, were incapable of providing for themselves.”
§ Domesticating Federal Indian Law > 1996]
What the sources say
- Not matchedcites Kagama, 118 U.S. at 379-80
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In the paper
“The Court subjected domestic Indian treaties to the same status under domestic law as international treaties: both may be unilaterally abrogated by Congress without fear of domestic legal consequences.”
§ Domesticating Federal Indian Law > 1996]
What the sources say
- Not matchedcites Lone Wolf
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- Not matchedcites Chinese Exclusion Case
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In the paper
“only relatively recently did the Court explicitly repudiate the extraordinary notion that congressional acts in the field of Indian affairs are nonjusticiable political questions.”
§ Domesticating Federal Indian Law > 1996]
What the sources say
- Not matchedcites United States v. Sioux Nation
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- Not matchedcites Delaware Tribal Bus. Comm. v. Weeks
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In the paper
“the Court had never struck down a federal statute regulating Indian affairs on structural constitutional grounds until Seminole Tribe.”
§ Domesticating Federal Indian Law > 1996]
What the sources say
- Not matchedcites Seminole Tribe
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In the paper
“the Court cited the Chinese Exclusion Case and concluded that, “as with treaties made with foreign nations, . . . the legislative power might pass laws in conflict with treaties made with the Indians.””
§ Domesticating Federal Indian Law > 1996]
What the sources say
- Not matchedcites Lone Wolf
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- Not matchedcites Chinese Exclusion Case
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In the paper
“has never acknowledged any fundamental constitutional rights, such as the right to tribal or cultural integrity.”
§ Domesticating Federal Indian Law > 1996]
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In the paper
“The Supreme Court in Lone Wolf refused to invalidate this breach of the treaty.”
§ Domesticating Federal Indian Law > 1996]
What the sources say
- Not matchedcites Lone Wolf v. Hitchcock, 187 U.S. 553 (1903)
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In the paper
“As Kagama illustrates, it has federalized criminal regulation in Indian country.”
§ Domesticating Federal Indian Law > 1996]
What the sources say
- Not matchedcites Kagama
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In the paper
“This year, in Seminole Tribe v. Florida, 53 the Court invalidated a federal statutory provision concerning Indian affairs on Eleventh Amendment grounds.”
§ Domesticating Federal Indian Law > 1996]
What the sources say
- Not matchedcites Seminole Tribe v. Florida, 116 S. Ct. 1114 (1996)
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In the paper
“Today, much land remains in the allotment format.”
§ Domesticating Federal Indian Law > MORGAN GIBSON, THE AMERICAN INDIAN: PREHISTORY TO THE PRESENT 507-10 (1980).
What the sources say
- Not matchedcites Solem v. Bartlett, 465 U.S. 463, 467 (1984)
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In the paper
“The Court concluded that congressional abrogation of an international treaty created nonjusticiable political questions that were “conclusive upon the judiciary.””
§ Domesticating Federal Indian Law > 1996]
What the sources say
- Not matchedcites Chinese Exclusion Case, 130 U.S. 581 (1889)
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In the paper
“This year, for the first time in history, the Supreme Court struck down a federal statute involving Indian affairs on structural constitutional principles.”
§ Domesticating Federal Indian Law > 1996]
What the sources say
- Not matchedcites Seminole Tribe v. Florida, 116 S. Ct. 1114 (1996)
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In the paper
“The federal government has not always husbanded these resources consistent with its fiduciary responsibilities.”
§ Domesticating Federal Indian Law > MORGAN GIBSON, THE AMERICAN INDIAN: PREHISTORY TO THE PRESENT 507-10 (1980).
What the sources say
- Not matchedcites United States v. Mitchell, 463 U.S. 206, 224-28 (1983)
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- Not matchedcites United States v. Mitchell, 445 U.S. 535, 536-46 (1980)
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In the paper
“As noted earlier, Congress responded immediately by adopting a statute providing federal criminal jurisdiction for certain serious offenses committed by Indians in Indian country.”
§ Domesticating Federal Indian Law > 1996]
What the sources say
- Not matchedcites Major Crimes Act
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In the paper
“In Kagama, the Court deferred to the congressional power to enact this statute.”
§ Domesticating Federal Indian Law > 1996]
What the sources say
- Not matchedcites Kagama
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In the paper
“Recall that in the Chinese Exclusion Case the Court refused to entertain a challenge to a unilateral congressional abrogation of an international treaty.”
§ Domesticating Federal Indian Law > 1996]
What the sources say
- Not matchedcites Chinese Exclusion Case
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In the paper
“For example, the availability of fair-market-value compensation for the takings of Indian lands did not prevent the expropriation in the mid-twentieth century of huge portions of Indian land in North and South Dakota for water projects along the Missouri River.”
§ Domesticating Federal Indian Law > A. TAKINGS
What the sources say
- Not matchedcites Pommersheim, supra note 203
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In the paper
“When the federal money was set aside in the federal treasury for the Sioux Nation, however, the tribes that constitute that Nation refused to accept it.”
§ Domesticating Federal Indian Law > A. TAKINGS
What the sources say
- Not matchedcites EDWARD LAZARUS, BLACK HILLS: WHITE JUSTICE 353 (1991)
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In the paper
“The money still sits in the federal treasury, earning interest, as the tribes hope for federal legislation returning some of the land.”
§ Domesticating Federal Indian Law > A. TAKINGS
What the sources say
- Not matchedcites Newton, supra note 200
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A conclusion the paper draws from its own results — it cites no other source for it, so there is none to check. The quote shows it is in the paper.
In the paper
“What schoolchildren-and almost all law students-do not learn is that this story of sovereignty is radically incomplete.”
- Also stated in: § Abstract · plain
“Our Federalism” 2 came about through our colonialism.”
§ Domesticating Federal Indian Law > Abstract
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A conclusion the paper draws from its own results — it cites no other source for it, so there is none to check. The quote shows it is in the paper.
In the paper
“sovereignty within the United States is triadic: American Indian tribes have sovereignty as well.”
§ Domesticating Federal Indian Law > Abstract
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In the paper
“Only those nations created by colonization, however, face the question of inherent power over “foreigners” already present-indigenous peoples.”
§ Domesticating Federal Indian Law > 1996]
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In the paper
“Kagama was the first case in which the Supreme Court essentially embraced the doctrine that Congress has plenary power over Indian affairs.”
§ Domesticating Federal Indian Law > 1996]
What the sources say
- Not matchedcites Kagama
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In the paper
“If American Indian tribes as sovereigns and American Indian culture are to survive, they can only survive in the United States.”
§ Domesticating Federal Indian Law > 1996]
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In the paper
“When the trust period expired, the allottees often lost the allotted land, because it became alienable and subject to state taxation, and, ultimately, tax foreclosure.”
§ Domesticating Federal Indian Law > 1996]
What the sources say
- Not matchedcites MORGAN GIBSON, THE AMERICAN INDIAN: PREHISTORY TO THE PRESENT 507-10 (1980)
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In the paper
“The first is that the interpretive approach of Chief Justice Marshall has lost much of its force in the current Supreme Court.”
§ Domesticating Federal Indian Law > 1996]
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In the paper
“probably the major one is sovereignty.”
§ Domesticating Federal Indian Law > 1996]
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In the paper
“even at the turn of the century, Indians who were not United States citizens were essentially nationals of this country who lacked citizenship in any international sovereign.”
§ Domesticating Federal Indian Law > 1996]
What the sources say
- Not matchedcites Elk v. Wilkins
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- Not matchedcites Worcester
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In the paper
“On allotted reservations, a “checkerboard” pattern of land ownership has resulted: some land is tribal land, some land is owned by non-Indians in fee simple, and some land remains as allotments for individual Indians.”
§ Domesticating Federal Indian Law > MORGAN GIBSON, THE AMERICAN INDIAN: PREHISTORY TO THE PRESENT 507-10 (1980).
What the sources say
- Not matchedcites Solem v. Bartlett, 465 U.S. 463, 467 (1984)
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In the paper
“Federal regulation based on alienage or Indian status is therefore conceived of as a political classification, rather than one defined by race or other “discrete and insular minority” status.”
§ Domesticating Federal Indian Law > 1996]
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In the paper
“When read together, the Chinese Exclusion Case 3 6 and Lone Wolf 37 demonstrate the essentially unlimited power of Congress over immigration and Indian affairs at the turn of this century.”
§ Domesticating Federal Indian Law > I. PLENARY POWER TODAY: THE DOMESTIC CONTEXT
What the sources say
- Not matchedcites Chinese Exclusion Case
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- Not matchedcites Lone Wolf
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In the paper
“The statute did not purport to undo its past effects, however.”
§ Domesticating Federal Indian Law > MORGAN GIBSON, THE AMERICAN INDIAN: PREHISTORY TO THE PRESENT 507-10 (1980).
What the sources say
- Not matchedcites County of Yakima v. Confederated Tribes and Bands of the Yakima Indian Nation, 502 U.S. 251, 276-77 (1992)
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plainSingle case- Asserted: passes — The authors put it forward as true.
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In the paper
“Until this year, an overview of congressional plenary power over Indian affairs was simple.As one leading commentator put it, “[w]hatever Congress wants, Congress gets.””
§ Domesticating Federal Indian Law > 1996]
What the sources say
- Not matchedcites Newton, supra note 20, at 285
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In the paper
“the non-American sovereignty to which Indians owe allegiancetheir tribe-is a “domestic dependent nation” involuntarily wedded into a ward-gnardian” relationship with the United States rather than a Mi-fledged international sovereignty.”
§ Domesticating Federal Indian Law > 1996]
What the sources say
- Not matchedcites Cherokee Nation v. Georgia
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In the paper
“have stood together well outside the “constitutional law mainstream.””
§ Domesticating Federal Indian Law > 1996]
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In the paper
“unlike an alien, an American Indian who is fed up with'the treatment accorded in the United States cannot leave and return to her native land and culture.”
§ Domesticating Federal Indian Law > 1996]
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In the paper
“Marshall attempted to mediate the extraordinary tensions between colonialism and constitutionalism through interpretive techniques that conceptualized Indian treaties and other articles of positive law as constitutive documents”
§ Domesticating Federal Indian Law > 1996]
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In the paper
“Crow Dog was consistent with this tradition.”
§ Domesticating Federal Indian Law > 1996]
plainstates an association- Asserted: passes — The authors put it forward as true.
- Checkable: passes — It can be checked against evidence.
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A conclusion the paper draws from its own results — it cites no other source for it, so there is none to check. The quote shows it is in the paper.
In the paper
“This approach is obviously consistent with Kagama.”
§ Domesticating Federal Indian Law > 119.
boostedstates an association- Asserted: passes — The authors put it forward as true.
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A conclusion the paper draws from its own results — it cites no other source for it, so there is none to check. The quote shows it is in the paper.
In the paper
“In addition to allocating governmental power, Kagama and the Chinese Exclusion Case may share a similar policy concern.”
§ Domesticating Federal Indian Law > 119.
hedgedstates an association- Asserted: passes — The authors put it forward as true.
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A conclusion the paper draws from its own results — it cites no other source for it, so there is none to check. The quote shows it is in the paper.
In the paper
“Judicial review has been available in form, but not in substance.”
§ Domesticating Federal Indian Law > 1996]
plain- Asserted: passes — The authors put it forward as true.
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A conclusion the paper draws from its own results — it cites no other source for it, so there is none to check. The quote shows it is in the paper.
In the paper
“Unlike in immigration law, where the person seeking entry and permanent residence in the United States ordinarily should not be disadvantaged by his allegiance to another sovereign, 7 1 2 in federal Indian law the tribal member's allegiance to his tribe is the legitimate element that distinguishes her from others.”
§ Domesticating Federal Indian Law > 1996]
plain- Asserted: passes — The authors put it forward as true.
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A conclusion the paper draws from its own results — it cites no other source for it, so there is none to check. The quote shows it is in the paper.
In the paper
“the centralized sovereign for colonial purposes is consistent, however, with Marshall's understanding of the allocation of the colonial power.”
§ Domesticating Federal Indian Law > 1996]
plainstates an association- Asserted: passes — The authors put it forward as true.
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The paper states this without a source or data behind it here, so there is nothing to check it against. The quote shows it is in the paper.
In the paper
“The Marshall Court incorporated into our public law a complex combination of judicial restraint and activity in addressing the colonization of this country.”
§ Domesticating Federal Indian Law > 73.
plainstates a cause- Asserted: passes — The authors put it forward as true.
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A conclusion the paper draws from its own results — it cites no other source for it, so there is none to check. The quote shows it is in the paper.
In the paper
“Consistent with the Marshall legacy, which requires courts to use the canons of interpretation to buffer attempts at non-Indian intrusion into tribal affairs, the Court construed imprecise language in a treaty and a later agreement with the tribe as not embodying tribal consent to federal criminal jurisdiction.”
§ Domesticating Federal Indian Law > 1996]
plainstates a cause- Asserted: passes — The authors put it forward as true.
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A conclusion the paper draws from its own results — it cites no other source for it, so there is none to check. The quote shows it is in the paper.
In the paper
“These and other conventional constitutional arguments were not available in Kagama, how- ever.”
§ Domesticating Federal Indian Law > 1996]
plain- Asserted: passes — The authors put it forward as true.
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A conclusion the paper draws from its own results — it cites no other source for it, so there is none to check. The quote shows it is in the paper.
In the paper
“Kagama essentially stands for the proposition that in a colonized nation the centralized government has inherent power over the indigenous persons who are the victims of colonization.”
§ Domesticating Federal Indian Law > 119.
plainstates a cause- Asserted: passes — The authors put it forward as true.
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In the paper
“Indeed, it has afforded Indians constitutional protections in certain limited contexts.”
§ Domesticating Federal Indian Law > 1996]
What the sources say
- Not matchedcites United States v. Sioux Nation, 448 U.S. 371, 407-23 (1980)
Couldn’t be matched to a paper in Crossref, so it can’t be checked.
plainSingle case- Asserted: passes — The authors put it forward as true.
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- Not matched
In the paper
“never squarely addressed the legality or the morality of the colonization of America.”
§ Domesticating Federal Indian Law > II. PLENARY POWER YESTERDAY: THE INTERNATIONAL CONTEXT
What the sources say
- Not matchedcites Johnson v. McIntosh, 21 U.S. (8 Wheat.) 543 (1823)
Couldn’t be matched to a paper in Crossref, so it can’t be checked.
plainSingle case- Asserted: passes — The authors put it forward as true.
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In the paper
“If there is any fundamental disagreement between Kagama and the Marshall trilogy, it is whether the power to interfere in internal tribal matters is a necessary attribute of the ongoing, centralized colonial power.”
§ Domesticating Federal Indian Law > 1996]
hedged- Asserted: passes — The authors put it forward as true.
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A conclusion the paper draws from its own results — it cites no other source for it, so there is none to check. The quote shows it is in the paper.
In the paper
“The decision indicates that Congress has power over Indian affairs based more on inherent notions of centralized national power in a colonial government than on a strict interpretation of the congressional powers enumerated in the Constitution.”
§ Domesticating Federal Indian Law > 1996]
hedgedstates a causeSingle case- Asserted: passes — The authors put it forward as true.
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In the paper
“This understanding of Kagama-in which notions of inherent, centralized colonial sovereignty rather than simple reliance upon the language of the Constitution explain the plenary power in Indian affairs 18 -makes it fit in well with the decisions that followed it.”
§ Domesticating Federal Indian Law > 1996]
boostedstates an association- Asserted: passes — The authors put it forward as true.
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A conclusion the paper draws from its own results — it cites no other source for it, so there is none to check. The quote shows it is in the paper.
In the paper
“It is, to that extent, an extension of the Marshall trilogy.”
§ Domesticating Federal Indian Law > 1996]
hedgedstates an association- Asserted: passes — The authors put it forward as true.
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A conclusion the paper draws from its own results — it cites no other source for it, so there is none to check. The quote shows it is in the paper.
In the paper
“If, as I shall contend, international law provides the best justification for a kind of federal plenary power in Indian affairs, logic demands that international law also suggest limitations on that power.”
§ Domesticating Federal Indian Law > 1996]
plainstates a cause- Asserted: passes — The authors put it forward as true.
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In the paper
“The Court has explicitly rejected the notion that the congressional power over Indian affairs is extra-constitutional.”
§ Domesticating Federal Indian Law > 1996]
What the sources say
- Not matchedcites Morton v. Mancari, 417 U.S. 535, 551-52 (1974)
Couldn’t be matched to a paper in Crossref, so it can’t be checked.
boostedSingle case- Asserted: passes — The authors put it forward as true.
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- Not matched
In the paper
“The Court treated the case as one that involved nothing uniquely related to the governance of Indian affairs.”
§ Domesticating Federal Indian Law > 73.
What the sources say
- Not matchedcites Seminole Tribe
Couldn’t be matched to a paper in Crossref, so it can’t be checked.
plainSingle case- Asserted: passes — The authors put it forward as true.
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In the paper
“What this inquiry reveals is that federal Indian law-and the Constitution upon which this law is built-incorporates international law root and branch.”
§ Domesticating Federal Indian Law > 1996]
plainstates an association- Asserted: passes — The authors put it forward as true.
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- Based: unclear — It is unclear why the paper says it holds.
In the paper
“Unfortunately, those canons have had increasingly little impact on the current Supreme Court.”
§ Domesticating Federal Indian Law > 106.
What the sources say
- Not matchedcites Frickey, supra note 14
Couldn’t be matched to a paper in Crossref, so it can’t be checked.
plain- Asserted: passes — The authors put it forward as true.
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- Not matched
A conclusion the paper draws from its own results — it cites no other source for it, so there is none to check. The quote shows it is in the paper.
In the paper
“Whatever conditions are placed upon indigenous peoples by colonizing authorities must either be consensual (by treaties, for example) or unilateral (by the exercise of a plenary colonizing power).”
§ Domesticating Federal Indian Law > 119.
plain- Asserted: passes — The authors put it forward as true.
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In the paper
“Criminal and civil jurisdiction over such areas is difficult for any sovereign to exercise.”
§ Domesticating Federal Indian Law > MORGAN GIBSON, THE AMERICAN INDIAN: PREHISTORY TO THE PRESENT 507-10 (1980).
What the sources say
- Not matchedcites Solem v. Bartlett, 465 U.S. 463, 471-72 n.12 (1984)
Couldn’t be matched to a paper in Crossref, so it can’t be checked.
plain- Asserted: passes — The authors put it forward as true.
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- Not matched
In the paper
“In a nutshell, because of the demise of Lochner and serious judicial second-guessing of economic legislation, the courts abandoned intrusive review of whether a taking was in the public interest.”
§ Domesticating Federal Indian Law > A. TAKINGS
What the sources say
- Not matchedcites LAURENCE H. TRIBE, AMERICAN CONSTITUTIONAL LAW 588-92 (2d ed. 1988)
Couldn’t be matched to a paper in Crossref, so it can’t be checked.
plainstates a cause- Asserted: passes — The authors put it forward as true.
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- Not matched
A conclusion the paper draws from its own results — it cites no other source for it, so there is none to check. The quote shows it is in the paper.
In the paper
“Consequently, the canons have lost most of their influence.”
§ Domesticating Federal Indian Law > 1996]
plainstates a cause- Asserted: passes — The authors put it forward as true.
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- Based: passes — The paper gives a reason why it holds.
A conclusion the paper draws from its own results — it cites no other source for it, so there is none to check. The quote shows it is in the paper.
In the paper
“Even if the courts will not look to those rights to inform every question of domestic law involving human rights, such as free speech or inhumane punishment, in federal Indian law cases the courts are compelled to consider international law.”
§ Domesticating Federal Indian Law > 1996]
boostedstates a cause- Asserted: passes — The authors put it forward as true.
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The paper states this without a source or data behind it here, so there is nothing to check it against. The quote shows it is in the paper.
In the paper
“Documents seeking to identify the contemporary international human rights norms concerning indigenous people uniformly stress the value of aboriginal lands.”
§ Domesticating Federal Indian Law > A. TAKINGS
boosted- Asserted: passes — The authors put it forward as true.
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A conclusion the paper draws from its own results — it cites no other source for it, so there is none to check. The quote shows it is in the paper.
In the paper
“Attempting to enforce these rights in American courts has been fraught with difficulty, however.”
§ Domesticating Federal Indian Law > 1996]
plain- Asserted: passes — The authors put it forward as true.
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A conclusion the paper draws from its own results — it cites no other source for it, so there is none to check. The quote shows it is in the paper.
In the paper
“The long saga of the taking of the Black Hills confirms this conclusion about the nonequivalence of land and money.”
§ Domesticating Federal Indian Law > A. TAKINGS
boostedstates a cause- Asserted: passes — The authors put it forward as true.
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A conclusion the paper draws from its own results — it cites no other source for it, so there is none to check. The quote shows it is in the paper.
In the paper
“There is usually no way to take the money and buy equivalent land elsewhere.”
§ Domesticating Federal Indian Law > A. TAKINGS
plain- Asserted: passes — The authors put it forward as true.
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A conclusion the paper draws from its own results — it cites no other source for it, so there is none to check. The quote shows it is in the paper.
In the paper
“Under the current precedent, these two limitations provide no practical way to prevent the exercise of this congressional power.”
§ Domesticating Federal Indian Law > A. TAKINGS
plain- Asserted: passes — The authors put it forward as true.
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A conclusion the paper draws from its own results — it cites no other source for it, so there is none to check. The quote shows it is in the paper.
In the paper
“Thus, an international norm that does not link up with a constitutional provision limiting governmental power would presumably have less persuasive force than one that is closely connected to a constitu-”
§ Domesticating Federal Indian Law > 1996]
hedgedstates a possible cause- Asserted: passes — The authors put it forward as true.
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None of the sources cited for this claim have been checked yet.
In the paper
“Even worse is the rule that Congress may take Indian land without any requirement of compensation as long as the land is held in aboriginal title rather than recognized title (i.e., title formally recognized by Congress by treaty or otherwise).”
§ Domesticating Federal Indian Law > A. TAKINGS
plainstates a possible cause- Asserted: passes — The authors put it forward as true.
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- Load-bearing: unclear — It is unclear whether the paper’s conclusions depend on it.
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In the paper
“Indeed, the Marshall Court itself recognized that Indian lands are not identical in law to other lands.”
§ Domesticating Federal Indian Law > 212.
What the sources say
- Not matchedcites Worcester v. Georgia, 31 U.S. 515, 545 (1832)
Couldn’t be matched to a paper in Crossref, so it can’t be checked.
plainSingle case- Asserted: passes — The authors put it forward as true.
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- Not matched
The paper states this without a source or data behind it here, so there is nothing to check it against. The quote shows it is in the paper.
In the paper
“No grant of authority to Congress in Article I squarely encompasses the power of eminent domain.”
§ Domesticating Federal Indian Law > A. TAKINGS
plain- Asserted: passes — The authors put it forward as true.
- Checkable: passes — It can be checked against evidence.
- Load-bearing: unclear — It is unclear whether the paper’s conclusions depend on it.
- Based: unclear — It is unclear why the paper says it holds.
A conclusion the paper draws from its own results — it cites no other source for it, so there is none to check. The quote shows it is in the paper.
In the paper
“Accordingly, the backdrop of international law should likewise be relevant in considering limitations upon that power.”
§ Domesticating Federal Indian Law > 1996]
plainstates an association- Asserted: passes — The authors put it forward as true.
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- Based: passes — The paper gives a reason why it holds.
A conclusion the paper draws from its own results — it cites no other source for it, so there is none to check. The quote shows it is in the paper.
In the paper
“This approach essentially conflates the judicial review of the question whether the taking is for a public purpose with the question whether the action violates substantive due process or equal protection.”
§ Domesticating Federal Indian Law > A. TAKINGS
plainstates a cause- Asserted: passes — The authors put it forward as true.
- Checkable: passes — It can be checked against evidence.
- Load-bearing: unclear — It is unclear whether the paper’s conclusions depend on it.
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In the paper
“A congressional action inconsistent with human rights recognized in an international accord that the United States has ratified may simply be deemed a unilateral abrogation of that international obligation, a congressional power recognized in the Chinese Exclusion Case.”
§ Domesticating Federal Indian Law > 1996]
What the sources say
- Not matchedcites Chinese Exclusion Case
Couldn’t be matched to a paper in Crossref, so it can’t be checked.
hedgedstates a possible causeSingle case- Asserted: passes — The authors put it forward as true.
- Checkable: passes — It can be checked against evidence.
- Load-bearing: unclear — It is unclear whether the paper’s conclusions depend on it.
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- Not matched
In the paper
“Unfortunately, however, the current Court has badly depreciated the canons, reducing them from clear statement requirements to be considered at the outset of the interpretive analysis to mere tiebreakers that apply only if the court would otherwise flip a coin.”
§ Domesticating Federal Indian Law > 1996]
What the sources say
- Not matchedcites Frickey, supra note 14
Couldn’t be matched to a paper in Crossref, so it can’t be checked.
plainstates a cause- Asserted: passes — The authors put it forward as true.
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- Not matched
In the paper
“One is based on comparative institutional competence: courts should force Congress, rather than other federal entities or the states, to do the unattractive work of further colonization.”
§ Domesticating Federal Indian Law > 1996]
What the sources say
- Not matchedcites Frickey, supra note 14
Couldn’t be matched to a paper in Crossref, so it can’t be checked.
plainstates a cause- Asserted: passes — The authors put it forward as true.
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- Not matched
A conclusion the paper draws from its own results — it cites no other source for it, so there is none to check. The quote shows it is in the paper.
In the paper
“Even in more modern circumstances, however, in which Congress is on notice that fair market value must be paid for Indian lands, the requirement of payment has not produced any assurance that the sensitive issues involving the loss of aboriginal lands are carefully considered.”
§ Domesticating Federal Indian Law > A. TAKINGS
plain- Asserted: passes — The authors put it forward as true.
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A conclusion the paper draws from its own results — it cites no other source for it, so there is none to check. The quote shows it is in the paper.
In the paper
“As such, it is unlikely to be directly enforceable in American law.”
§ Domesticating Federal Indian Law > 1996]
hedged- Asserted: passes — The authors put it forward as true.
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In the paper
“Under the colonizing process conceptualized in Worcester, which remains the most important case in federal Indian law, the colonizing sovereign did not possess a unilateral power of displacement, even if compensation was provided.”
§ Domesticating Federal Indian Law > 212.
What the sources say
- Not matchedcites Worcester v. Georgia, 31 U.S. 515, 545 (1832)
Couldn’t be matched to a paper in Crossref, so it can’t be checked.
plainSingle case- Asserted: passes — The authors put it forward as true.
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- Not matched
The paper states this without a source or data behind it here, so there is nothing to check it against. The quote shows it is in the paper.
In the paper
“When, in relatively short order, the Court confronted the question of interpreting Indian treaties, it adopted similar canons designed to preserve the pre-existing inherent tribal rights under international law from all but clear textual abrogation.”
§ Domesticating Federal Indian Law > 1996]
plainstates a cause- Asserted: passes — The authors put it forward as true.
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- Based: passes — The paper gives a reason why it holds.
In the paper
“Rather, it possessed only “the exclusive right of purchasing such lands as the natives were willing to sell.””
§ Domesticating Federal Indian Law > 212.
What the sources say
- Not matchedcites Worcester v. Georgia, 31 U.S. 515, 545 (1832)
Couldn’t be matched to a paper in Crossref, so it can’t be checked.
plainSingle case- Asserted: passes — The authors put it forward as true.
- Checkable: passes — It can be checked against evidence.
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- Based: passes — The paper gives a reason why it holds.
- Not matched
The paper states this without a source or data behind it here, so there is nothing to check it against. The quote shows it is in the paper.
In the paper
“As Marshall himself understood, it was only by reference to its “origin” in international law that congressional power over Indian affairs could become part of our domestic law.”
§ Domesticating Federal Indian Law > 248.
plainstates a cause- Asserted: passes — The authors put it forward as true.
- Checkable: passes — It can be checked against evidence.
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- Based: passes — The paper gives a reason why it holds.
In the paper
“Because the Supreme Court could find no burden on the free exercise of religion, it never balanced the importance of the governmental project against the harm caused to religion.”
§ Domesticating Federal Indian Law > 1996]
What the sources say
- Not matchedcites Lyng v. Northwest Indian Cemetery Protective Ass'n, 485 U.S. 439 (1988)
Couldn’t be matched to a paper in Crossref, so it can’t be checked.
plainstates a causeSingle case- Asserted: passes — The authors put it forward as true.
- Checkable: passes — It can be checked against evidence.
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- Not matched
A conclusion the paper draws from its own results — it cites no other source for it, so there is none to check. The quote shows it is in the paper.
In the paper
“In light of the federalization of Indian affairs, see supra note 162, there should be no constitutional federalism objection to this statute.”
§ Domesticating Federal Indian Law > 238.
plain- Asserted: passes — The authors put it forward as true.
- Checkable: unclear — It is unclear whether it could be checked against evidence.
- Load-bearing: passes — The paper’s conclusions depend on it.
- Based: passes — The paper gives a reason why it holds.
In the paper
“For example, ILO Convention 169 endorses the protection of “the social, cultural, religious and spiritual values and practices” 2 33 of Natives.”
§ Domesticating Federal Indian Law > 231.
What the sources say
- Not matchedcites ILO Convention 169
Couldn’t be matched to a paper in Crossref, so it can’t be checked.
plain- Asserted: passes — The authors put it forward as true.
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- Not matched
In the paper
“This conclusion seems inescapable in Smith, where there was no showing that the use of sacramental peyote had ever caused any lawenforcement problems or other public policy concerns.”
§ Domesticating Federal Indian Law > 238.
What the sources say
- Not matchedcites Employment Division v. Smith, 494 U.S. 872 (1990)
Couldn’t be matched to a paper in Crossref, so it can’t be checked.
boosted- Asserted: passes — The authors put it forward as true.
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- Not matched
None of the sources cited for this claim have been checked yet.
In the paper
“Essentially throughout its entire history, then, the Supreme Court has embraced a canon of interpretation that promotes an interpretation of domestic statutes consistent with international law.24”
§ Domesticating Federal Indian Law > 1996]
plain- Asserted: passes — The authors put it forward as true.
- Checkable: passes — It can be checked against evidence.
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- Based: passes — The paper gives a reason why it holds.
In the paper
“As long ago as 1804, the Supreme Court announced that “an act of Congress ought never to be construed to violate the law of nations if any other possible construction remains.”39”
§ Domesticating Federal Indian Law > 1996]
What the sources say
- Not matchedcites Murray v. Schooner Charming Betsy, 6 U.S. (2 Cranch) 64, 118 (1804)
Couldn’t be matched to a paper in Crossref, so it can’t be checked.
plainSingle case- Asserted: passes — The authors put it forward as true.
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- Not matched
In the paper
“Congress has overturned the result in Smith by statute.See Pub.L. No. 103-344, 108 Stat.3125 (1994)”
§ Domesticating Federal Indian Law > 238.
What the sources say
- Not matchedcites Pub.L. No. 103-344, 108 Stat.3125 (1994)
Couldn’t be matched to a paper in Crossref, so it can’t be checked.
plainstates a cause- Asserted: passes — The authors put it forward as true.
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A conclusion the paper draws from its own results — it cites no other source for it, so there is none to check. The quote shows it is in the paper.
In the paper
“But Indian lands are not ordinary lands: they are not sufficiently fungible to make the payment of fair market value an acceptable equivalent to the land”
§ Domesticating Federal Indian Law > 212.
plainstates a cause- Asserted: passes — The authors put it forward as true.
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In the paper
“In Employment Division v. Smith, 494 U.S. 872 (1990), the Court rejected the argument that a state violated the Free Exercise Clause by denying unemployment compensation to a Native American who had been fired as a drug counselor at a private firm because he had taken sacramental peyote during a religious service of the Native American Church.”
§ Domesticating Federal Indian Law > 238.
What the sources say
- Not matchedcites Employment Division v. Smith, 494 U.S. 872 (1990)
Couldn’t be matched to a paper in Crossref, so it can’t be checked.
plainSingle case- Asserted: passes — The authors put it forward as true.
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- Not matched
The paper states this without a source or data behind it here, so there is nothing to check it against. The quote shows it is in the paper.
In the paper
“The tribe has no private right of eminent domain: it cannot compel the owners of land of particular importance to the tribe to sell, whether for fair market value or any other price.”
§ Domesticating Federal Indian Law > 1996]
plain- Asserted: passes — The authors put it forward as true.
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- Probably not a substantial claim. 91
- It may state two separate claims as one. 52
- The quote only partly states this claim. 1
In the paper
“the Warren Court concluded that the federal government could unilaterally take the aboriginal lands of Indians without constitutional consequence, including any requirement of just compensation.”
§ Domesticating Federal Indian Law > Abstract
What the sources say
- Not matchedcites Tee-Hit-Ton Indians v. United States, 348 U.S. 272, 288-89 (1955)
Couldn’t be matched to a paper in Crossref, so it can’t be checked.
plainstates a causeSingle case- Asserted: passes — The authors put it forward as true.
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Probably not a substantial claim.
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In the paper
“it stated that “ [t]he relation of the Indian tribes living within the borders of the United States, both before and since the Revolution, to the people of the United States has always been an anomalous one and of a complex character.””
§ Domesticating Federal Indian Law > 10.
What the sources say
- Not matchedcites United States v. Kagama, 118 U.S. 375 (1886)
Couldn’t be matched to a paper in Crossref, so it can’t be checked.
plainSingle case- Asserted: passes — The authors put it forward as true.
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In the paper
“Nor has the Court provided serious scrutiny to claims that tribes or individuals, whether Indian or non-Indian, have been subjected to discriminatory federal classifications based on race, 57 even though a complete Title of the United States Code is replete with classifications that turn on Indian status.”
§ Domesticating Federal Indian Law > 1996]
What the sources say
- Not matchedcites 25 U.S.C. §§ 1-4061 (1994)
Couldn’t be matched to a paper in Crossref, so it can’t be checked.
plain- Asserted: passes — The authors put it forward as true.
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In the paper
“It stated that “[p]lenary authority over the tribal relations of the Indians has been exercised by Congress from the beginning, and the power has always been deemed a political one.””
§ Domesticating Federal Indian Law > 1996]
What the sources say
- Not matchedcites Lone Wolf
Couldn’t be matched to a paper in Crossref, so it can’t be checked.
plainSingle case- Asserted: passes — The authors put it forward as true.
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Probably not a substantial claim. It may state two separate claims as one.
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In the paper
“The Court stressed that, when sovereignty involving national rather than local purposes and involving the entire national territory was concerned, that sovereignty resided in Congress.”
§ Domesticating Federal Indian Law > 119.
What the sources say
- Not matchedcites Chinese Exclusion Case
Couldn’t be matched to a paper in Crossref, so it can’t be checked.
plainstates a causeSingle case- Asserted: passes — The authors put it forward as true.
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In the paper
“The Court reinforced this theme three years later, in Nishimura Ekiu v. United States,' 23 where, in upholding the Immigration Act of 1891,124 it stated: It is an accepted maxim of international law, that every sovereign nation has the power, as inherent in sovereignty, and essential to self-preservation, to forbid the entrance of foreigners within its dominions, or to admit them only in such”
§ Domesticating Federal Indian Law > 119.
What the sources say
- Not matchedcites Nishimura Ekiu
Couldn’t be matched to a paper in Crossref, so it can’t be checked.
plainSingle case- Asserted: passes — The authors put it forward as true.
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Probably not a substantial claim. The paper’s conclusions may not depend on it. It may state two separate claims as one.
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In the paper
“Just one year later, the Court upheld congressional power to deport aliens on the same ground 126 and quoted leading insion, see Aleinikoff, supra note 68, at 863-64.”
§ Domesticating Federal Indian Law > 119.
What the sources say
- Not matchedcites Fong Yue Ting
Couldn’t be matched to a paper in Crossref, so it can’t be checked.
plainSingle case- Asserted: passes — The authors put it forward as true.
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In the paper
“The federal government undertook this project without consulting with, much less with the consent of, the tribes, and it had draconian cultural and economic effects.”
§ Domesticating Federal Indian Law > A. TAKINGS
What the sources say
- Not matchedcites Pommersheim, supra note 203
Couldn’t be matched to a paper in Crossref, so it can’t be checked.
plainstates a cause- Asserted: passes — The authors put it forward as true.
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A conclusion the paper draws from its own results — it cites no other source for it, so there is none to check. The quote shows it is in the paper.
In the paper
“Because international law sanctioned colonization, it also must have had within it a notion that the colonial government that results has inherent authority to engage in relations with indigenous peoples.”
§ Domesticating Federal Indian Law > 1996]
plainstates a cause- Asserted: passes — The authors put it forward as true.
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Probably not a substantial claim. The paper may give no reason why it holds.
- Rests on an assumption: International law sanctioned colonization.
A conclusion the paper draws from its own results — it cites no other source for it, so there is none to check. The quote shows it is in the paper.
In the paper
“Instead, it is just plain wrong, a mixture of myth and ethnocentrism masquerading as past legal practice.”
§ Domesticating Federal Indian Law > Abstract
plain- Asserted: passes — The authors put it forward as true.
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Probably not a substantial claim. It may be too vague to check against evidence. The paper may give no reason why it holds.
A conclusion the paper draws from its own results — it cites no other source for it, so there is none to check. The quote shows it is in the paper.
In the paper
“although the plenary power doctrines in both fields are similar, reform cannot take the same path for each of them.”
§ Domesticating Federal Indian Law > 1996]
plain- Asserted: passes — The authors put it forward as true.
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It may state two separate claims as one.
The paper states this without a source or data behind it here, so there is nothing to check it against. The quote shows it is in the paper.
In the paper
“the Supreme Court has said, “our Constitution establishes a system of dual sovereignty between the States and the Federal Government.””
§ Domesticating Federal Indian Law > Abstract
plain- Asserted: passes — The authors put it forward as true.
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Probably not a substantial claim.
A conclusion the paper draws from its own results — it cites no other source for it, so there is none to check. The quote shows it is in the paper.
In the paper
“That federal Indian law is a snarl of doctrinal complicaton”
§ Domesticating Federal Indian Law > 10.
plain- Asserted: passes — The authors put it forward as true.
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Probably not a substantial claim. It may be too vague to check against evidence. The paper’s conclusions may not depend on it.
A conclusion the paper draws from its own results — it cites no other source for it, so there is none to check. The quote shows it is in the paper.
In the paper
“plenary power in federal Indian law, like that in immigration law, arose from conceptions of the inherent sovereignty of nations under international law.”
§ Domesticating Federal Indian Law > 1996]
plainstates a cause- Asserted: passes — The authors put it forward as true.
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Probably not a substantial claim.
- Rests on an assumption: All nations have inherent authority to control the influx of foreigners.
None of the sources cited for this claim have been checked yet.
In the paper
“tribal sovereignty is not “created by and springing from the Constitution,” 3 but rather is an inherent sovereignty that “existed prior to the Constitution” 4 and is, therefore, not subject to it.”
§ Domesticating Federal Indian Law > Abstract
plain- Asserted: passes — The authors put it forward as true.
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It may state two separate claims as one.
A conclusion the paper draws from its own results — it cites no other source for it, so there is none to check. The quote shows it is in the paper.
In the paper
“Even more remarkably, plenary power remains, at least in form, the law of both.”
§ Domesticating Federal Indian Law > 1996]
hedged- Asserted: passes — The authors put it forward as true.
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It may state two separate claims as one.
A conclusion the paper draws from its own results — it cites no other source for it, so there is none to check. The quote shows it is in the paper.
In the paper
“these norms have true linkage to our Constitution and provide a domestic interpretive backdrop for both constitutional interpretation and quasi-constitutional interpretive techniques”
§ Domesticating Federal Indian Law > 1996]
plainstates an association- Asserted: passes — The authors put it forward as true.
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In the paper
“Under allotment, “surplus lands” on the reservation became available for non-Indian homesteading.”
§ Domesticating Federal Indian Law > 1996]
What the sources say
- Not matchedcites HANDBOOK OF FEDERAL INDIAN LAW, supra note 46, at 138
Couldn’t be matched to a paper in Crossref, so it can’t be checked.
plainstates a cause- Asserted: passes — The authors put it forward as true.
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Probably not a substantial claim. The paper’s conclusions may not depend on it.
- Not matched
A conclusion the paper draws from its own results — it cites no other source for it, so there is none to check. The quote shows it is in the paper.
In the paper
“federal In-dian law is doctrinally chaotic, awash in a sea of conflicting, albeit often unarticulated, values”
§ Domesticating Federal Indian Law > 1996]
plain- Asserted: passes — The authors put it forward as true.
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Probably not a substantial claim. It may be too vague to check against evidence. The paper may give no reason why it holds.
A conclusion the paper draws from its own results — it cites no other source for it, so there is none to check. The quote shows it is in the paper.
In the paper
“the method that I have ascribed to Marshall assumes that Congress does have something approximating a plenary power over Indian affairs, so long as Congress exercises that power through clear positive law.”
§ Domesticating Federal Indian Law > 1996]
plainstates a possible cause- Asserted: passes — The authors put it forward as true.
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In the paper
“The United States took much of the remainder of tribal land out of collective ownership and carved it up into small allotments held in trust for individual Indians.”
§ Domesticating Federal Indian Law > 1996]
What the sources say
- Not matchedcites HANDBOOK OF FEDERAL INDIAN LAW, supra note 46, at 138
Couldn’t be matched to a paper in Crossref, so it can’t be checked.
plainstates a cause- Asserted: passes — The authors put it forward as true.
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- Not matched
In the paper
“Lone Wolf refused to entertain any constitutional challenge to allotment, which was arguably the most disastrous policy in Indian affairs next to the outright massacre or forced removal of Indians from their homelands.”
§ Domesticating Federal Indian Law > MORGAN GIBSON, THE AMERICAN INDIAN: PREHISTORY TO THE PRESENT 507-10 (1980).
What the sources say
- Not matchedcites Lone Wolf
Couldn’t be matched to a paper in Crossref, so it can’t be checked.
plainSingle case- Asserted: passes — The authors put it forward as true.
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Probably not a substantial claim. The paper’s conclusions may not depend on it. It may state two separate claims as one.
- Not matched
A conclusion the paper draws from its own results — it cites no other source for it, so there is none to check. The quote shows it is in the paper.
In the paper
“By virtue of its plenary power, Congress has run roughshod over tribal interests.”
§ Domesticating Federal Indian Law > 1996]
plainstates a cause- Asserted: passes — The authors put it forward as true.
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Probably not a substantial claim. The paper’s conclusions may not depend on it. The paper may give no reason why it holds.
- Rests on an assumption: Under the policy of allotment, Congress deprived Indians of more than two-thirds of their land base between 1887 and 1934.
None of the sources cited for this claim could be matched to a paper in Crossref, so there is nothing to check it against.
In the paper
“Structural constitutional principles have not stopped Congress from invading-indeed, even abolishingtribal sovereignty, 55 or from intruding upon core state functions in regulating Indian affairs.”
§ Domesticating Federal Indian Law > 1996]
What the sources say
- Not matchedcites Menominee Indian Termination Act
Couldn’t be matched to a paper in Crossref, so it can’t be checked.
- Not matchedcites Worcester v. Georgia
Couldn’t be matched to a paper in Crossref, so it can’t be checked.
- Not matchedcites Winters v. United States
Couldn’t be matched to a paper in Crossref, so it can’t be checked.
plain- Asserted: passes — The authors put it forward as true.
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It may state two separate claims as one.
- Not matched
The paper states this without a source or data behind it here, so there is nothing to check it against. The quote shows it is in the paper.
In the paper
“Foreign citizens and members of Indian tribes are full-fledged members of the polity of a sovereign other than the United States, which in turn has a sovereign-to-sovereign relationship with the United States.”
§ Domesticating Federal Indian Law > 1996]
plain- Asserted: passes — The authors put it forward as true.
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It may state two separate claims as one.
A conclusion the paper draws from its own results — it cites no other source for it, so there is none to check. The quote shows it is in the paper.
In the paper
“Marshall's mediating approach essentially considered the historical realities of colonization to be beyond judicial reconsideration, but it addressed new questions of the unilateral displacement of indigenous peoples by approaching these constitutive documents through a complex interpretive calculus, represented by the canons of interpretation in federal Indian law”
§ Domesticating Federal Indian Law > 1996]
plainstates a cause- Asserted: passes — The authors put it forward as true.
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It may state two separate claims as one.
In the paper
“The Indian Reorganization Act of 1934, § § 1-2, 48 Stat.984 (codified at 25 U.S.C. § § 461-62 (1994)), forbids further allotments and extends into perpetuity the trust restrictions on allotted land.”
§ Domesticating Federal Indian Law > MORGAN GIBSON, THE AMERICAN INDIAN: PREHISTORY TO THE PRESENT 507-10 (1980).
What the sources say
- Not matchedcites 25 U.S.C. §§ 461-62 (1994)
Couldn’t be matched to a paper in Crossref, so it can’t be checked.
plainstates a cause- Asserted: passes — The authors put it forward as true.
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- Not matched
In the paper
“The Court has continued to use “plenary power” as a term of art in federal Indian law and has routinely assumed that the power is somehow both authorized in Article 16° and immune from meaningful scrutiny under other constitutional provisions that ordinarily constrain congressional authority.”
§ Domesticating Federal Indian Law > 1996]
What the sources say
- Not matchedcites Cotton Petroleum Corp. v. New Mexico
Couldn’t be matched to a paper in Crossref, so it can’t be checked.
plainSingle case- Asserted: passes — The authors put it forward as true.
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A conclusion the paper draws from its own results — it cites no other source for it, so there is none to check. The quote shows it is in the paper.
In the paper
“if international law notions of inherent sover, eignty provide the only justification for even this more limited conception of congressional power, it follows that the Constitution is inextricably linked to international law on issues of Indian affairs.”
§ Domesticating Federal Indian Law > 1996]
plainstates an association- Asserted: passes — The authors put it forward as true.
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Probably not a substantial claim.
A conclusion the paper draws from its own results — it cites no other source for it, so there is none to check. The quote shows it is in the paper.
In the paper
“congressional “plenary” power at most simply means “complete and exclusive”-both internationally vis-h-vis other nations and domestically vis-h-vis the states of the union-but not “absolute” in either sphere.”
§ Domesticating Federal Indian Law > 1996]
hedged- Asserted: passes — The authors put it forward as true.
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It may state two separate claims as one.
None of the sources cited for this claim could be matched to a paper in Crossref, so there is nothing to check it against.
In the paper
“the text of the Constitution lacks much of a hint of any plenary power”
§ Domesticating Federal Indian Law > 1996]
What the sources say
- Not matchedcites Kagama
Couldn’t be matched to a paper in Crossref, so it can’t be checked.
- Not matchedcites U.S. Const.
Couldn’t be matched to a paper in Crossref, so it can’t be checked.
plain- Asserted: passes — The authors put it forward as true.
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Probably not a substantial claim.
- Not matched
A conclusion the paper draws from its own results — it cites no other source for it, so there is none to check. The quote shows it is in the paper.
In the paper
“The tribe has no capacity to use the retaliatory tools of international law-trade embargoes, cessation of relations, war-to seek to change congressional policies, nor has it access to any international forum to seek redress.”
§ Domesticating Federal Indian Law > 1996]
plain- Asserted: passes — The authors put it forward as true.
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It may state two separate claims as one.
A conclusion the paper draws from its own results — it cites no other source for it, so there is none to check. The quote shows it is in the paper.
In the paper
“This interpretive strategy put the complete burden of colonization upon the centralized legislature-the Congress.Thus, the states were excluded from the process of colonialism, and Congress bore the responsibility of identifying Indian rights, weighing whether they should be abrogated, and drafting clear text to effect any loss of those rights.”
§ Domesticating Federal Indian Law > 1996]
plainstates a cause- Asserted: passes — The authors put it forward as true.
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Probably not a substantial claim. It may state two separate claims as one.
In the paper
“In a nutshell, Marshall interpreted the treaty as the Indians would have understood it, conceptualized the transaction as one in which the tribe was reserving for itself all rights not clearly ceded to the United States, and, more generally, understood the treaty as representing an ongoing relationship of sovereignty between the tribe and the United States.”
§ Domesticating Federal Indian Law > 106.
What the sources say
- Not matchedcites Frickey, supra note 14
Couldn’t be matched to a paper in Crossref, so it can’t be checked.
plain- Asserted: passes — The authors put it forward as true.
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- Not matched
None of the sources cited for this claim have been checked yet.
In the paper
“Marshall sought to limit it by interpretive canons designed to force Congress, not the localities, to make the difficult decisions, and to require the judiciary to neuter colonizing acts disadvantageous to tribes unless the language of the positive law was clear in that regard.”
§ Domesticating Federal Indian Law > 1996]
plainstates a cause- Asserted: passes — The authors put it forward as true.
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It may state two separate claims as one.
A conclusion the paper draws from its own results — it cites no other source for it, so there is none to check. The quote shows it is in the paper.
In the paper
“On the one hand, Seminole Tribe may signal a new sensitivity to states' rights in federal Indian law.”
§ Domesticating Federal Indian Law > 73.
hedgedstates a possible causeSingle case- Asserted: passes — The authors put it forward as true.
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Probably not a substantial claim.
In the paper
“Moreover, in federal Indian law there is a long tradition, started in the Marshall trilogy, of subconstitutional interpretive protection through the canons, which should dictate that Congress may only invade Indian rights through a clear statutory statement of its intent to do so.”
§ Domesticating Federal Indian Law > 1996]
What the sources say
- Not matchedcites Frickey, supra note 14
Couldn’t be matched to a paper in Crossref, so it can’t be checked.
boostedstates a possible cause- Asserted: passes — The authors put it forward as true.
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Probably not a substantial claim. It may state two separate claims as one.
- Not matched
A conclusion the paper draws from its own results — it cites no other source for it, so there is none to check. The quote shows it is in the paper.
In the paper
“Although both immigration law and federal Indian law share a plenary power based on outmoded notions of sovereignty, there the similarity of the fields may end.”
§ Domesticating Federal Indian Law > 1996]
hedged- Asserted: passes — The authors put it forward as true.
- Checkable: fails — It may be too vague to check against evidence.
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Probably not a substantial claim. It may be too vague to check against evidence. The paper’s conclusions may not depend on it. The paper may give no reason why it holds. It may state two separate claims as one.
A conclusion the paper draws from its own results — it cites no other source for it, so there is none to check. The quote shows it is in the paper.
In the paper
“If we assume that Congress has some inherent power to deal with the issues in Indian affairs that may extend beyond the precise text of the Constitution, there remains an obvious constitutional theory for ameliorating abuses of that power: the application of the Bill of Rights.”
§ Domesticating Federal Indian Law > 1996]
hedgedstates a possible cause- Asserted: passes — The authors put it forward as true.
- Checkable: passes — It can be checked against evidence.
- Load-bearing: passes — The paper’s conclusions depend on it.
- Based: passes — The paper gives a reason why it holds.
Probably not a substantial claim.
- The authors state this as an assumption: Congress has some inherent power to deal with the issues in Indian affairs that may extend beyond the precise text of the Constitution.
A conclusion the paper draws from its own results — it cites no other source for it, so there is none to check. The quote shows it is in the paper.
In the paper
“Kagama was not simply the first plenary power case, but also a judicial response to congressional objection to an earlier decision faithful to Marshall's constructs.”
§ Domesticating Federal Indian Law > 1996]
plainstates a cause- Asserted: passes — The authors put it forward as true.
- Checkable: passes — It can be checked against evidence.
- Load-bearing: passes — The paper’s conclusions depend on it.
- Based: passes — The paper gives a reason why it holds.
It may state two separate claims as one.
A conclusion the paper draws from its own results — it cites no other source for it, so there is none to check. The quote shows it is in the paper.
In the paper
“The blending of international and domestic principles also provides a practical amalgamation of contemporary norms against which to judge the current condition of indigenous peoples.”
§ Domesticating Federal Indian Law > 1996]
plainstates a cause- Asserted: passes — The authors put it forward as true.
- Checkable: fails — It may be too vague to check against evidence.
- Load-bearing: passes — The paper’s conclusions depend on it.
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Probably not a substantial claim. It may be too vague to check against evidence.
In the paper
“his essential conclusion was that the Court “will not enter into the controversy, whether agriculturalists, merchants, and manufacturers, have a right, on abstract principles, to expel hunters from the territory they possess, or to contract their limits.””
§ Domesticating Federal Indian Law > II. PLENARY POWER YESTERDAY: THE INTERNATIONAL CONTEXT
What the sources say
- Not matchedcites Johnson v. McIntosh, 21 U.S. (8 Wheat.) 543, 588 (1823)
Couldn’t be matched to a paper in Crossref, so it can’t be checked.
plainSingle case- Asserted: passes — The authors put it forward as true.
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Probably not a substantial claim.
- Not matched
A conclusion the paper draws from its own results — it cites no other source for it, so there is none to check. The quote shows it is in the paper.
In the paper
“Any stringent constitutional protection of state sovereignty from federal regulatory power is likely to have serious implications for federal Indian law, where the governance of Indian affairs has generally been viewed as a matter exclusively for Congress by virtue of its plenary power.”
§ Domesticating Federal Indian Law > 73.
hedgedstates a possible cause- Asserted: passes — The authors put it forward as true.
- Checkable: fails — It may be too vague to check against evidence.
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- Based: passes — The paper gives a reason why it holds.
Probably not a substantial claim. It may be too vague to check against evidence.
In the paper
“The greatest practical danger in federal Indian law today is probably that the Court will also more aggressively prefer state power to tribal power.”
§ Domesticating Federal Indian Law > Berkey, United States-Indian Relations: The Constitutional Basis, in EXILED
What the sources say
- Not matchedcites Frickey, supra note 14
Couldn’t be matched to a paper in Crossref, so it can’t be checked.
hedgedstates a possible cause- Asserted: passes — The authors put it forward as true.
- Checkable: fails — It may be too vague to check against evidence.
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Probably not a substantial claim. It may be too vague to check against evidence.
- Not matched
In the paper
“Indeed, it conflated the Indian Commerce Clause with all the rest of Congress's Article I powers and held that the Eleventh Amendment uniformly prohibited subjecting a state to federal judicial jurisdiction, regardless of the source of Article I power Congress sought to exercise.”
§ Domesticating Federal Indian Law > 73.
What the sources say
- Not matchedcites Seminole Tribe
Couldn’t be matched to a paper in Crossref, so it can’t be checked.
plainstates a causeSingle case- Asserted: passes — The authors put it forward as true.
- Checkable: passes — It can be checked against evidence.
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- Based: passes — The paper gives a reason why it holds.
It may state two separate claims as one.
- Not matched
A conclusion the paper draws from its own results — it cites no other source for it, so there is none to check. The quote shows it is in the paper.
In the paper
“The Court essentially assumed that some non-Indian sovereignty must have the ultimate authority to intrude upon internal tribal sovereignty, and that the federal government was preferable to the states because it had been dealing exclusively with tribes, alone had the capacity to enact general legislation sweeping across all tribes, and alone was responsible for the deprivations that colonization”
§ Domesticating Federal Indian Law > 1996]
plainstates a cause- Asserted: passes — The authors put it forward as true.
- Checkable: passes — It can be checked against evidence.
- Load-bearing: passes — The paper’s conclusions depend on it.
- Based: passes — The paper gives a reason why it holds.
It may state two separate claims as one.
The paper states this without a source or data behind it here, so there is nothing to check it against. The quote shows it is in the paper.
In the paper
“To achieve that synthesis, as the next section documents, the Marshall Court simultaneously ratified international law notions that colonization was lawful and that indigenous peoples possessed sovereignty and at least a limited set of legal rights.”
§ Domesticating Federal Indian Law > 73.
plainstates a cause- Asserted: passes — The authors put it forward as true.
- Checkable: passes — It can be checked against evidence.
- Load-bearing: passes — The paper’s conclusions depend on it.
- Based: unclear — It is unclear why the paper says it holds.
It may state two separate claims as one.
A conclusion the paper draws from its own results — it cites no other source for it, so there is none to check. The quote shows it is in the paper.
In the paper
“Indeed, there is a substantial risk that any diminution of congressional plenary power over Indian affairs in the near future will be rooted in an impulse to mainstream the field-and thus will come at the expense of the tribes, rather than for their benefit.”
§ Domesticating Federal Indian Law > 1996]
hedgedstates a possible cause- Asserted: passes — The authors put it forward as true.
- Checkable: fails — It may be too vague to check against evidence.
- Load-bearing: passes — The paper’s conclusions depend on it.
- Based: passes — The paper gives a reason why it holds.
Probably not a substantial claim. It may be too vague to check against evidence.
A conclusion the paper draws from its own results — it cites no other source for it, so there is none to check. The quote shows it is in the paper.
In the paper
“Uncoupling the tribal member from the sovereignty of her tribe would destroy most of what is unique and worth preserving in federal Indian law.”
§ Domesticating Federal Indian Law > 1996]
hedgedstates a cause- Asserted: passes — The authors put it forward as true.
- Checkable: fails — It may be too vague to check against evidence.
- Load-bearing: passes — The paper’s conclusions depend on it.
- Based: passes — The paper gives a reason why it holds.
Probably not a substantial claim. It may be too vague to check against evidence.
- Rests on an assumption: Tribal sovereignty and separation are worth preserving in federal Indian law.
A conclusion the paper draws from its own results — it cites no other source for it, so there is none to check. The quote shows it is in the paper.
In the paper
“Any attack upon congressional plenary power over Indian affairs would have to persuade the Court to prefer tribal, not state, legislative power to congressional power.”
§ Domesticating Federal Indian Law > Berkey, United States-Indian Relations: The Constitutional Basis, in EXILED
hedgedstates a possible cause- Asserted: passes — The authors put it forward as true.
- Checkable: fails — It may be too vague to check against evidence.
- Load-bearing: fails — The paper’s conclusions may not depend on it.
- Based: fails — The paper may give no reason why it holds.
Probably not a substantial claim. It may be too vague to check against evidence. The paper’s conclusions may not depend on it. The paper may give no reason why it holds.
A conclusion the paper draws from its own results — it cites no other source for it, so there is none to check. The quote shows it is in the paper.
In the paper
“Yet it is precisely those aspects of federal Indian law that would be most jeopardized by the impulse to mainstream.”
§ Domesticating Federal Indian Law > 1996]
hedgedstates a cause- Asserted: passes — The authors put it forward as true.
- Checkable: fails — It may be too vague to check against evidence.
- Load-bearing: passes — The paper’s conclusions depend on it.
- Based: fails — The paper may give no reason why it holds.
Probably not a substantial claim. It may be too vague to check against evidence. The paper may give no reason why it holds.
A conclusion the paper draws from its own results — it cites no other source for it, so there is none to check. The quote shows it is in the paper.
In the paper
“In particular, it makes Kagama consistent with the approach taken to the plenary power over immigration affairs three years later in the Chinese Exclusion Case, which was then transplanted into Indian affairs in Lone Wolf.”
§ Domesticating Federal Indian Law > 1996]
plainstates a cause- Asserted: passes — The authors put it forward as true.
- Checkable: passes — It can be checked against evidence.
- Load-bearing: passes — The paper’s conclusions depend on it.
- Based: passes — The paper gives a reason why it holds.
It may state two separate claims as one.
A conclusion the paper draws from its own results — it cites no other source for it, so there is none to check. The quote shows it is in the paper.
In the paper
“Unlike reform in immigration law, federal Indian law must retain its collectivist, separatist, and unique legal elements.”
§ Domesticating Federal Indian Law > 1996]
plain- Asserted: passes — The authors put it forward as true.
- Checkable: fails — It may be too vague to check against evidence.
- Load-bearing: passes — The paper’s conclusions depend on it.
- Based: passes — The paper gives a reason why it holds.
Probably not a substantial claim. It may be too vague to check against evidence.
- Rests on an assumption: Tribal sovereignty and separation are worth preserving in federal Indian law.
A conclusion the paper draws from its own results — it cites no other source for it, so there is none to check. The quote shows it is in the paper.
In the paper
“It strikes me as unrealistic to suggest that the Court will prefer tribal power to congressional power.”
§ Domesticating Federal Indian Law > Berkey, United States-Indian Relations: The Constitutional Basis, in EXILED
hedged- Asserted: passes — The authors put it forward as true.
- Checkable: fails — It may be too vague to check against evidence.
- Load-bearing: fails — The paper’s conclusions may not depend on it.
- Based: fails — The paper may give no reason why it holds.
Probably not a substantial claim. It may be too vague to check against evidence. The paper’s conclusions may not depend on it. The paper may give no reason why it holds.
In the paper
“I have argued that a revival of the legacy of the Marshall Court in federal Indian law would produce such a greater appreciation for tribal interests.”
§ Domesticating Federal Indian Law > 73.
What the sources say
- Not matchedcites Frickey, supra note 14, at 427-40
Couldn’t be matched to a paper in Crossref, so it can’t be checked.
hedgedstates a cause- Asserted: passes — The authors put it forward as true.
- Checkable: fails — It may be too vague to check against evidence.
- Load-bearing: passes — The paper’s conclusions depend on it.
- Based: passes — The paper gives a reason why it holds.
Probably not a substantial claim. It may be too vague to check against evidence.
- Not matched
A conclusion the paper draws from its own results — it cites no other source for it, so there is none to check. The quote shows it is in the paper.
In the paper
“If the federal courts are to become more receptive to tribal interests, it will require a greater appreciation for what is unique about federal Indian law, what legitimately distinguishes it from the mainstream.”
§ Domesticating Federal Indian Law > 73.
plainstates a possible cause- Asserted: passes — The authors put it forward as true.
- Checkable: fails — It may be too vague to check against evidence.
- Load-bearing: passes — The paper’s conclusions depend on it.
- Based: fails — The paper may give no reason why it holds.
Probably not a substantial claim. It may be too vague to check against evidence. The paper may give no reason why it holds.
A conclusion the paper draws from its own results — it cites no other source for it, so there is none to check. The quote shows it is in the paper.
In the paper
“Domestication by mainstreaming is not, however, the answer to what ails federal Indian law.”
§ Domesticating Federal Indian Law > 1996]
plain- Asserted: passes — The authors put it forward as true.
- Checkable: fails — It may be too vague to check against evidence.
- Load-bearing: passes — The paper’s conclusions depend on it.
- Based: passes — The paper gives a reason why it holds.
Probably not a substantial claim. It may be too vague to check against evidence.
- Rests on an assumption: The most normatively attractive aspects of federal Indian law are those that respect tribal independence and federal supremacy over state governments in Indian affairs.
- Rests on an assumption: Tribal sovereignty and separation are worth preserving in federal Indian law.
A conclusion the paper draws from its own results — it cites no other source for it, so there is none to check. The quote shows it is in the paper.
In the paper
“The most normatively attractive aspects of federal Indian law have respected tribal independence and federal supremacy over state governments in Indian affairs.”
§ Domesticating Federal Indian Law > 1996]
plainstates an association- Asserted: passes — The authors put it forward as true.
- Checkable: fails — It may be too vague to check against evidence.
- Load-bearing: passes — The paper’s conclusions depend on it.
- Based: fails — The paper may give no reason why it holds.
Probably not a substantial claim. It may be too vague to check against evidence. The paper may give no reason why it holds. It may state two separate claims as one.
- Rests on an assumption: The most normatively attractive aspects of federal Indian law are those that respect tribal independence and federal supremacy over state governments in Indian affairs.
A conclusion the paper draws from its own results — it cites no other source for it, so there is none to check. The quote shows it is in the paper.
In the paper
“Moreover, the Court's current literalist approach to the interpretation of statutes and other positive law is deeply inconsistent with the interpretive practices of federal Indian law, where canons of interpretation have stood guard against the abuse of the plenary power by protecting Indian rights and interests against all but explicit congressional deprivation.”
§ Domesticating Federal Indian Law > 73.
boostedstates an association- Asserted: passes — The authors put it forward as true.
- Checkable: fails — It may be too vague to check against evidence.
- Load-bearing: passes — The paper’s conclusions depend on it.
- Based: fails — The paper may give no reason why it holds.
Probably not a substantial claim. It may be too vague to check against evidence. The paper may give no reason why it holds.
A conclusion the paper draws from its own results — it cites no other source for it, so there is none to check. The quote shows it is in the paper.
In the paper
“It is unsurprising, however, that federal courts have been loath to enforce these norms even to that extent, fearing that they may misjudge the international norm and that, in any event, the incorporation of customary international law invades the prerogatives of the American political branches to make law.”
§ Domesticating Federal Indian Law > 1996]
plainstates a cause- Asserted: passes — The authors put it forward as true.
- Checkable: passes — It can be checked against evidence.
- Load-bearing: fails — The paper’s conclusions may not depend on it.
- Based: passes — The paper gives a reason why it holds.
Probably not a substantial claim. The paper’s conclusions may not depend on it. It may state two separate claims as one.
A conclusion the paper draws from its own results — it cites no other source for it, so there is none to check. The quote shows it is in the paper.
In the paper
“Under this approach, international norms about the treatment of indigenous persons would not be directly enforceable in American courts, but instead would provide a relevant and worthwhile backdrop against which to consider constitutional and quasi-constitutional claims.”
§ Domesticating Federal Indian Law > 1996]
hedged- Asserted: passes — The authors put it forward as true.
- Checkable: passes — It can be checked against evidence.
- Load-bearing: passes — The paper’s conclusions depend on it.
- Based: passes — The paper gives a reason why it holds.
It may state two separate claims as one.
A conclusion the paper draws from its own results — it cites no other source for it, so there is none to check. The quote shows it is in the paper.
In the paper
“Although it will happily admit that constitutional limits apply to congressional exercises of power in Indian affairs, it has not yet seen a statute invading Indian interests that it has judged constitutionally troubling.”
§ Domesticating Federal Indian Law > 1996]
plain- Asserted: passes — The authors put it forward as true.
- Checkable: passes — It can be checked against evidence.
- Load-bearing: passes — The paper’s conclusions depend on it.
- Based: unclear — It is unclear why the paper says it holds.
It may state two separate claims as one.
A conclusion the paper draws from its own results — it cites no other source for it, so there is none to check. The quote shows it is in the paper.
In the paper
“In the context of Indian lands, using the justcompensation requirement as a legislative process surrogate for substantive review of whether the taking is in the public interest imposes the western, capitalist assumption that land and capital are fungible upon a nonwestern, noncapitalist culture in which they are not.”
§ Domesticating Federal Indian Law > A. TAKINGS
plainstates a cause- Asserted: passes — The authors put it forward as true.
- Checkable: fails — It may be too vague to check against evidence.
- Load-bearing: passes — The paper’s conclusions depend on it.
- Based: passes — The paper gives a reason why it holds.
Probably not a substantial claim. It may be too vague to check against evidence.
A conclusion the paper draws from its own results — it cites no other source for it, so there is none to check. The quote shows it is in the paper.
In the paper
“The reason is simple: the backdrop of international law provides the only satisfactory basis for sorting out the existence of an inherent federal power over Indian affairs.”
§ Domesticating Federal Indian Law > 1996]
boostedstates a cause- Asserted: passes — The authors put it forward as true.
- Checkable: passes — It can be checked against evidence.
- Load-bearing: passes — The paper’s conclusions depend on it.
- Based: fails — The paper may give no reason why it holds.
Probably not a substantial claim. The paper may give no reason why it holds.
A conclusion the paper draws from its own results — it cites no other source for it, so there is none to check. The quote shows it is in the paper.
In the paper
“The difference between my theory and the broader theory by which international norms may inform domestic law is that in my theory, international law has a direct-indeed, essential-linkage to the area of domestic law in question.”
§ Domesticating Federal Indian Law > 1996]
boostedstates an association- Asserted: passes — The authors put it forward as true.
- Checkable: passes — It can be checked against evidence.
- Load-bearing: passes — The paper’s conclusions depend on it.
- Based: passes — The paper gives a reason why it holds.
Probably not a substantial claim.
A conclusion the paper draws from its own results — it cites no other source for it, so there is none to check. The quote shows it is in the paper.
In the paper
“The federal courts will be reluctant to delegate the meaning of our Constitution and other domestic law to the international community.”
§ Domesticating Federal Indian Law > 1996]
hedged- Asserted: passes — The authors put it forward as true.
- Checkable: passes — It can be checked against evidence.
- Load-bearing: passes — The paper’s conclusions depend on it.
- Based: fails — The paper may give no reason why it holds.
Probably not a substantial claim. The paper may give no reason why it holds.
A conclusion the paper draws from its own results — it cites no other source for it, so there is none to check. The quote shows it is in the paper.
In the paper
“The other is that Congress, in exercising its power in Indian affairs, should carefully consider the Native side of the argument and make a reasoned judgment, rather than blindly imposing ethnocentric perspectives.”
§ Domesticating Federal Indian Law > 1996]
plain- Asserted: passes — The authors put it forward as true.
- Checkable: fails — It may be too vague to check against evidence.
- Load-bearing: passes — The paper’s conclusions depend on it.
- Based: fails — The paper may give no reason why it holds.
Probably not a substantial claim. It may be too vague to check against evidence. The paper may give no reason why it holds.
A conclusion the paper draws from its own results — it cites no other source for it, so there is none to check. The quote shows it is in the paper.
In the paper
“In addition, courts are likely to conclude that international accords are not self-executing, and thus the rights recognized in them have no domestic application without implementing legislation from Congress.”
§ Domesticating Federal Indian Law > 1996]
hedgedstates a possible cause- Asserted: passes — The authors put it forward as true.
- Checkable: passes — It can be checked against evidence.
- Load-bearing: passes — The paper’s conclusions depend on it.
- Based: unclear — It is unclear why the paper says it holds.
It may state two separate claims as one.
A conclusion the paper draws from its own results — it cites no other source for it, so there is none to check. The quote shows it is in the paper.
In the paper
“Although it remains true that a taking for a private use would be unconstitutional, the Court has essentially treated the public-purpose requirement as a legislative, not judicial, question.”
§ Domesticating Federal Indian Law > A. TAKINGS
plain- Asserted: passes — The authors put it forward as true.
- Checkable: passes — It can be checked against evidence.
- Load-bearing: unclear — It is unclear whether the paper’s conclusions depend on it.
- Based: passes — The paper gives a reason why it holds.
It may state two separate claims as one.
A conclusion the paper draws from its own results — it cites no other source for it, so there is none to check. The quote shows it is in the paper.
In the paper
“If accepted, this argument about the domestic constitutional relevance of international human rights norms concerning indigenous peoples goes a long way toward breaking the deadlock over the application of such norms in American domestic courts.”
§ Domesticating Federal Indian Law > 172.
hedgedstates a possible cause- Asserted: passes — The authors put it forward as true.
- Checkable: fails — It may be too vague to check against evidence.
- Load-bearing: passes — The paper’s conclusions depend on it.
- Based: fails — The paper may give no reason why it holds.
Probably not a substantial claim. It may be too vague to check against evidence. The paper may give no reason why it holds.
A conclusion the paper draws from its own results — it cites no other source for it, so there is none to check. The quote shows it is in the paper.
In the paper
“The crucial difference is, however, that my theory expressly links one area of international human rights-that involving indigenous peoples--directly to the Constitution, rather than viewing it as merely a universal normative backdrop.”
§ Domesticating Federal Indian Law > 1996]
plainstates an association- Asserted: passes — The authors put it forward as true.
- Checkable: passes — It can be checked against evidence.
- Load-bearing: passes — The paper’s conclusions depend on it.
- Based: passes — The paper gives a reason why it holds.
Probably not a substantial claim.
A conclusion the paper draws from its own results — it cites no other source for it, so there is none to check. The quote shows it is in the paper.
In the paper
“The theory that the power over Indian affairs in the United States must necessarily be interpreted against its international backdrop has many potential consequences for both the constitutional basis of and the limitations upon this power.”
§ Domesticating Federal Indian Law > 1996]
plainstates a possible cause- Asserted: passes — The authors put it forward as true.
- Checkable: fails — It may be too vague to check against evidence.
- Load-bearing: passes — The paper’s conclusions depend on it.
- Based: fails — The paper may give no reason why it holds.
Probably not a substantial claim. It may be too vague to check against evidence. The paper may give no reason why it holds.
A conclusion the paper draws from its own results — it cites no other source for it, so there is none to check. The quote shows it is in the paper.
In the paper
“If we reinvigorate Marshall's mediating methodology, informed as it was by international law, within our current context, in which a less deferential judicial role seems feasible, the emerging catalogue of norms concerning the treatment of indigenous peoples provides a highly useful checklist of possibilities for consideration in bringing federal Indian law into the mainstream of public law.”
§ Domesticating Federal Indian Law > 172.
plainstates a possible cause- Asserted: passes — The authors put it forward as true.
- Checkable: fails — It may be too vague to check against evidence.
- Load-bearing: passes — The paper’s conclusions depend on it.
- Based: passes — The paper gives a reason why it holds.
Probably not a substantial claim. It may be too vague to check against evidence.
A conclusion the paper draws from its own results — it cites no other source for it, so there is none to check. The quote shows it is in the paper.
In the paper
“Instead, at first glance it is similar to the theory, propounded by many scholars, that these norms should provide an interpretive backdrop for our understanding of domestic law, especially the potentially expansive constitutional clauses pro-”
§ Domesticating Federal Indian Law > 1996]
hedged- Asserted: passes — The authors put it forward as true.
- Checkable: passes — It can be checked against evidence.
- Load-bearing: passes — The paper’s conclusions depend on it.
- Based: passes — The paper gives a reason why it holds.
Probably not a substantial claim.
A conclusion the paper draws from its own results — it cites no other source for it, so there is none to check. The quote shows it is in the paper.
In the paper
“The approach taken in the Marshall trilogy suggests that a vitalization of the judicial role is appropriate.”
§ Domesticating Federal Indian Law > 1996]
hedgedstates a possible cause- Asserted: passes — The authors put it forward as true.
- Checkable: fails — It may be too vague to check against evidence.
- Load-bearing: passes — The paper’s conclusions depend on it.
- Based: passes — The paper gives a reason why it holds.
Probably not a substantial claim. It may be too vague to check against evidence.
A conclusion the paper draws from its own results — it cites no other source for it, so there is none to check. The quote shows it is in the paper.
In the paper
“No such tie ever emerges in its analysis of these disputes because the current Court venerates state sovereignty and has little respect for tribal independence.”
§ Domesticating Federal Indian Law > 1996]
plainstates a cause- Asserted: passes — The authors put it forward as true.
- Checkable: passes — It can be checked against evidence.
- Load-bearing: passes — The paper’s conclusions depend on it.
- Based: fails — The paper may give no reason why it holds.
Probably not a substantial claim. The paper may give no reason why it holds. It may state two separate claims as one.
In the paper
“After a legal battle that stretched over half a century, in 1980 the Supreme Court concluded that the United States had taken the Black Hills from the Sioux Nation and that just compensation, including interest, was required.”
§ Domesticating Federal Indian Law > A. TAKINGS
What the sources say
- Not matchedcites United States v. Sioux Nation, 448 U.S. 371, 424 (1980)
Couldn’t be matched to a paper in Crossref, so it can’t be checked.
plainstates a causeSingle case- Asserted: passes — The authors put it forward as true.
- Checkable: passes — It can be checked against evidence.
- Load-bearing: passes — The paper’s conclusions depend on it.
- Based: passes — The paper gives a reason why it holds.
It may state two separate claims as one.
- Not matched
A conclusion the paper draws from its own results — it cites no other source for it, so there is none to check. The quote shows it is in the paper.
In the paper
“By making the government pay for expropriations, the theory is that there will be sufficient checks upon abuse, and that any remaining abuses are not susceptible to easy judicial identification and remediation.”
§ Domesticating Federal Indian Law > A. TAKINGS
plainstates a cause- Asserted: passes — The authors put it forward as true.
- Checkable: passes — It can be checked against evidence.
- Load-bearing: fails — The paper’s conclusions may not depend on it.
- Based: fails — The paper may give no reason why it holds.
Probably not a substantial claim. The paper’s conclusions may not depend on it. The paper may give no reason why it holds. It may state two separate claims as one.
A conclusion the paper draws from its own results — it cites no other source for it, so there is none to check. The quote shows it is in the paper.
In the paper
“As I have suggested, 1 7 6 federal Indian law has long stood outside our traditions of limited national government and of the fundamental protection of important aspects of personal autonomy, including freedom from unconsented invasions of important interests, freedom of association, and ownership of property.”
§ Domesticating Federal Indian Law > 172.
plain- Asserted: passes — The authors put it forward as true.
- Checkable: fails — It may be too vague to check against evidence.
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Probably not a substantial claim. It may be too vague to check against evidence. The paper may give no reason why it holds.
A conclusion the paper draws from its own results — it cites no other source for it, so there is none to check. The quote shows it is in the paper.
In the paper
“My theory is premised upon a much narrower understanding of the domestic role of international human rights.”
§ Domesticating Federal Indian Law > 1996]
plain- Asserted: passes — The authors put it forward as true.
- Checkable: fails — It may be too vague to check against evidence.
- Load-bearing: passes — The paper’s conclusions depend on it.
- Based: fails — The paper may give no reason why it holds.
Probably not a substantial claim. It may be too vague to check against evidence. The paper may give no reason why it holds.
A conclusion the paper draws from its own results — it cites no other source for it, so there is none to check. The quote shows it is in the paper.
In the paper
“Indeed, in this Section I shall suggest that several of these norms have obvious practical relevance and appropriateness for domestic American law.”
§ Domesticating Federal Indian Law > 172.
hedged- Asserted: passes — The authors put it forward as true.
- Checkable: fails — It may be too vague to check against evidence.
- Load-bearing: passes — The paper’s conclusions depend on it.
- Based: fails — The paper may give no reason why it holds.
Probably not a substantial claim. It may be too vague to check against evidence. The paper may give no reason why it holds.
A conclusion the paper draws from its own results — it cites no other source for it, so there is none to check. The quote shows it is in the paper.
In the paper
“This approach is nothing short of disastrous when applied to the taking of Indian lands.' 99”
§ Domesticating Federal Indian Law > A. TAKINGS
boostedstates a cause- Asserted: passes — The authors put it forward as true.
- Checkable: fails — It may be too vague to check against evidence.
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Probably not a substantial claim. It may be too vague to check against evidence. The paper may give no reason why it holds.
A conclusion the paper draws from its own results — it cites no other source for it, so there is none to check. The quote shows it is in the paper.
In the paper
“Instead, it is assumed that the requirement of just compensation sufficiently ensures that Congress or the state legislatures believe that a taking of property serves the common good.”
§ Domesticating Federal Indian Law > A. TAKINGS
plainstates a cause- Asserted: passes — The authors put it forward as true.
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Probably not a substantial claim. The paper’s conclusions may not depend on it. The paper may give no reason why it holds.
A conclusion the paper draws from its own results — it cites no other source for it, so there is none to check. The quote shows it is in the paper.
In the paper
“The problem of direct enforcement gets only worse, of course, in the case of rights recognized in accords to which the United States is not a party.”
§ Domesticating Federal Indian Law > 1996]
plainstates a cause- Asserted: passes — The authors put it forward as true.
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Probably not a substantial claim. The paper’s conclusions may not depend on it.
A conclusion the paper draws from its own results — it cites no other source for it, so there is none to check. The quote shows it is in the paper.
In the paper
“Of course, this passivity toward Indian claims at the constitutional level does not necessitate a similar nonchalance at the subconstitutional interpretive level where the canons are applied.”
§ Domesticating Federal Indian Law > 1996]
plain- Asserted: passes — The authors put it forward as true.
- Checkable: passes — It can be checked against evidence.
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Probably not a substantial claim.
The paper states this without a source or data behind it here, so there is nothing to check it against. The quote shows it is in the paper.
In the paper
“Colonialism has now been unquestionably repudiated; constitutionalism, as implemented by judicial review, is now essentially unquestioned.”
§ Domesticating Federal Indian Law > 172.
boosted- Asserted: passes — The authors put it forward as true.
- Checkable: fails — It may be too vague to check against evidence.
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- Based: fails — The paper may give no reason why it holds.
Probably not a substantial claim. It may be too vague to check against evidence. The paper may give no reason why it holds. It may state two separate claims as one.
In the paper
“Money constitutes adequate compensation only when the peoples involved prefer it to land.”
§ Domesticating Federal Indian Law > 1996]
What the sources say
- Not matchedcites ILO Convention 169
Couldn’t be matched to a paper in Crossref, so it can’t be checked.
plainstates a possible cause- Asserted: passes — The authors put it forward as true.
- Checkable: passes — It can be checked against evidence.
- Load-bearing: fails — The paper’s conclusions may not depend on it.
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Probably not a substantial claim. The paper’s conclusions may not depend on it.
- Not matched
A conclusion the paper draws from its own results — it cites no other source for it, so there is none to check. The quote shows it is in the paper.
In the paper
“Ordinarily, no equivalent land exists, and even if it does, the current owner may not wish to sell.”
§ Domesticating Federal Indian Law > A. TAKINGS
hedged- Asserted: passes — The authors put it forward as true.
- Checkable: passes — It can be checked against evidence.
- Load-bearing: passes — The paper’s conclusions depend on it.
- Based: passes — The paper gives a reason why it holds.
Probably not a substantial claim. It may state two separate claims as one.
A conclusion the paper draws from its own results — it cites no other source for it, so there is none to check. The quote shows it is in the paper.
In the paper
“Nonetheless, as a contemporary expression of emerging international law norms applicable to colonized peoples, it provides an interesting, useful-and, I have argued, necessarily relevant 2 5 -backdrop against which critically to assess constitutional takings doctrine.”
§ Domesticating Federal Indian Law > 1996]
boosted- Asserted: passes — The authors put it forward as true.
- Checkable: fails — It may be too vague to check against evidence.
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- Based: passes — The paper gives a reason why it holds.
Probably not a substantial claim. It may be too vague to check against evidence. The paper’s conclusions may not depend on it.
In the paper
“Indeed, a proper understanding of Marshall's legacy is that the judicial reluctance to invalidate congressional measures in federal Indian law should produce a correspondingly heightened judicial energy in applying the canons to prevent inadvertent and unthoughtful invasions of tribal rights.”
§ Domesticating Federal Indian Law > 1996]
What the sources say
- Not matchedcites Frickey, supra note 14
Couldn’t be matched to a paper in Crossref, so it can’t be checked.
plainstates a cause- Asserted: passes — The authors put it forward as true.
- Checkable: passes — It can be checked against evidence.
- Load-bearing: passes — The paper’s conclusions depend on it.
- Based: passes — The paper gives a reason why it holds.
Probably not a substantial claim.
- Not matched
A conclusion the paper draws from its own results — it cites no other source for it, so there is none to check. The quote shows it is in the paper.
In the paper
“Not only does this make the direct enforcement of international human rights unlikely, it also deters judges from using those norms as a useful backdrop to their understandings of even vague constitutional provisions.”
§ Domesticating Federal Indian Law > 1996]
hedgedstates a cause- Asserted: passes — The authors put it forward as true.
- Checkable: passes — It can be checked against evidence.
- Load-bearing: passes — The paper’s conclusions depend on it.
- Based: passes — The paper gives a reason why it holds.
It may state two separate claims as one.
In the paper
“The United States has not ratified this Convention, and as yet it has not garnered substantial agreement from other nations.”
§ Domesticating Federal Indian Law > 1996]
What the sources say
- Not matchedcites Barsh, supra note 177
Couldn’t be matched to a paper in Crossref, so it can’t be checked.
plain- Asserted: passes — The authors put it forward as true.
- Checkable: passes — It can be checked against evidence.
- Load-bearing: passes — The paper’s conclusions depend on it.
- Based: passes — The paper gives a reason why it holds.
It may state two separate claims as one.
- Not matched
A conclusion the paper draws from its own results — it cites no other source for it, so there is none to check. The quote shows it is in the paper.
In the paper
“The current Supreme Court has largely lost sight of the legacy left by Chief Justice Marshall.”
§ Domesticating Federal Indian Law > 1996]
plain- Asserted: passes — The authors put it forward as true.
- Checkable: fails — It may be too vague to check against evidence.
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- Based: passes — The paper gives a reason why it holds.
Probably not a substantial claim. It may be too vague to check against evidence.
A conclusion the paper draws from its own results — it cites no other source for it, so there is none to check. The quote shows it is in the paper.
In the paper
“In addition to this formal symmetry, normative, functional and practical considerations strongly support the argument for the domestic relevance of international norms concerning indigenous peoples.”
§ Domesticating Federal Indian Law > 172.
boostedstates a cause- Asserted: passes — The authors put it forward as true.
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Probably not a substantial claim. It may be too vague to check against evidence.
In the paper
“and, except in exceptional situations, to avoid removing indigenous persons from these lands without their consent.”
§ Domesticating Federal Indian Law > 1996]
What the sources say
- Not matchedcites ILO Convention 169, art. 16
Couldn’t be matched to a paper in Crossref, so it can’t be checked.
plain- Asserted: passes — The authors put it forward as true.
- Checkable: passes — It can be checked against evidence.
- Load-bearing: fails — The paper’s conclusions may not depend on it.
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Probably not a substantial claim. The paper’s conclusions may not depend on it.
- Not matched
In the paper
“Of course, even on these terms, international customary law may apply only where no domestic source of law determines the result.”
§ Domesticating Federal Indian Law > 1996]
What the sources say
- Not matchedcites The Paquete Habana
Couldn’t be matched to a paper in Crossref, so it can’t be checked.
hedgedstates a possible causeSingle case- Asserted: passes — The authors put it forward as true.
- Checkable: passes — It can be checked against evidence.
- Load-bearing: fails — The paper’s conclusions may not depend on it.
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Probably not a substantial claim. The paper’s conclusions may not depend on it.
- Not matched
A conclusion the paper draws from its own results — it cites no other source for it, so there is none to check. The quote shows it is in the paper.
In the paper
“My theory does not ask American courts to enforce international human rights norms directly as a matter of domestic law.”
§ Domesticating Federal Indian Law > 1996]
plain- Asserted: passes — The authors put it forward as true.
- Checkable: passes — It can be checked against evidence.
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- Based: passes — The paper gives a reason why it holds.
Probably not a substantial claim.
A conclusion the paper draws from its own results — it cites no other source for it, so there is none to check. The quote shows it is in the paper.
In the paper
“If the only legitimate constitutional justification for an expansive federal power over Indian affairs lies in interpreting the Constitution against the backdrop of international law, then international law is an important framework for constitutional interpretation throughout the field of federal Indian law.”
§ Domesticating Federal Indian Law > 172.
plainstates a possible cause- Asserted: passes — The authors put it forward as true.
- Checkable: fails — It may be too vague to check against evidence.
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- Based: fails — The paper may give no reason why it holds.
Probably not a substantial claim. It may be too vague to check against evidence. The paper’s conclusions may not depend on it. The paper may give no reason why it holds.
- Rests on an assumption: The only legitimate constitutional justification for an expansive federal power over Indian affairs lies in interpreting the Constitution against the backdrop of international law.
A conclusion the paper draws from its own results — it cites no other source for it, so there is none to check. The quote shows it is in the paper.
In the paper
“Indeed, current constitutional trends suggest that any vitalization of constitutional limitations in federal Indian law might work to the detriment of tribes”
§ Domesticating Federal Indian Law > 1996]
hedgedstates a possible cause- Asserted: passes — The authors put it forward as true.
- Checkable: passes — It can be checked against evidence.
- Load-bearing: passes — The paper’s conclusions depend on it.
- Based: passes — The paper gives a reason why it holds.
Probably not a substantial claim.
A conclusion the paper draws from its own results — it cites no other source for it, so there is none to check. The quote shows it is in the paper.
In the paper
“Congressional power and the limits upon it should be viewed as two sides of a coin, and if international law is relevant for the one, it should be relevant for the other.”
§ Domesticating Federal Indian Law > 172.
plainstates an association- Asserted: passes — The authors put it forward as true.
- Checkable: fails — It may be too vague to check against evidence.
- Load-bearing: passes — The paper’s conclusions depend on it.
- Based: fails — The paper may give no reason why it holds.
Probably not a substantial claim. It may be too vague to check against evidence. The paper may give no reason why it holds. It may state two separate claims as one.
A conclusion the paper draws from its own results — it cites no other source for it, so there is none to check. The quote shows it is in the paper.
In the paper
“Indeed, had the Supreme Court taken this approach in Lyng, the constitutional issue might have disappeared.25 2”
§ Domesticating Federal Indian Law > 248.
hedgedstates a possible cause- Asserted: passes — The authors put it forward as true.
- Checkable: passes — It can be checked against evidence.
- Load-bearing: fails — The paper’s conclusions may not depend on it.
- Based: passes — The paper gives a reason why it holds.
Probably not a substantial claim. The paper’s conclusions may not depend on it.
A conclusion the paper draws from its own results — it cites no other source for it, so there is none to check. The quote shows it is in the paper.
In the paper
“That balance would have almost surely favored the Native claim: the governmental interest in promoting direct routing of traffic and timbering of federal trees seems quite insignificant measured against the destruction of a religion.”
§ Domesticating Federal Indian Law > 231.
hedged- Asserted: passes — The authors put it forward as true.
- Checkable: fails — It may be too vague to check against evidence.
- Load-bearing: passes — The paper’s conclusions depend on it.
- Based: passes — The paper gives a reason why it holds.
Probably not a substantial claim. It may be too vague to check against evidence. It may state two separate claims as one.
A conclusion the paper draws from its own results — it cites no other source for it, so there is none to check. The quote shows it is in the paper.
In the paper
“An appreciation for the backdrop of international law destroys both of these easy assumptions and provides the missing link between colonialism and constitutionalism.”
§ Domesticating Federal Indian Law > 248.
plainstates a cause- Asserted: passes — The authors put it forward as true.
- Checkable: fails — It may be too vague to check against evidence.
- Load-bearing: passes — The paper’s conclusions depend on it.
- Based: passes — The paper gives a reason why it holds.
Probably not a substantial claim. It may be too vague to check against evidence. It may state two separate claims as one.
The paper states this without a source or data behind it here, so there is nothing to check it against. The quote shows it is in the paper.
In the paper
“For a century, it has been viewed as a matter both solely domestic and almost completely nonjudicial.”
§ Domesticating Federal Indian Law > 248.
plain- Asserted: passes — The authors put it forward as true.
- Checkable: passes — It can be checked against evidence.
- Load-bearing: passes — The paper’s conclusions depend on it.
- Based: fails — The paper may give no reason why it holds.
Probably not a substantial claim. The paper may give no reason why it holds. It may state two separate claims as one.
A conclusion the paper draws from its own results — it cites no other source for it, so there is none to check. The quote shows it is in the paper.
In the paper
“The basic problem with the analysis in Lyng is that it takes an extraordinarily ethnocentric approach to freedom of religion.”
§ Domesticating Federal Indian Law > 1996]
plainstates a cause- Asserted: passes — The authors put it forward as true.
- Checkable: fails — It may be too vague to check against evidence.
- Load-bearing: passes — The paper’s conclusions depend on it.
- Based: passes — The paper gives a reason why it holds.
Probably not a substantial claim. It may be too vague to check against evidence.
In the paper
“In addition, as noted before, 2 3 4 the Convention recognizes “the special importance for the cultures and spiritual values of the peoples concerned of their relationship with the lands . . .which they occupy or otherwise use,” 235 as well as to “lands not exclusively occupied by them, but to which they have traditionally had access for their subsistence and traditional activities.236”
§ Domesticating Federal Indian Law > 231.
What the sources say
- Not matchedcites ILO Convention 169
Couldn’t be matched to a paper in Crossref, so it can’t be checked.
plainstates an association- Asserted: passes — The authors put it forward as true.
- Checkable: passes — It can be checked against evidence.
- Load-bearing: passes — The paper’s conclusions depend on it.
- Based: passes — The paper gives a reason why it holds.
It may state two separate claims as one.
- Not matched
In the paper
“Nonetheless, in the view of the Court, no free exercise violation had occurred for two reasons.First, the First Amendment does not require the government to conduct its internal affairs, including the management of federal lands, in ways that comport with particular religious beliefs.”
§ Domesticating Federal Indian Law > 1996]
What the sources say
- Not matchedcites Lyng v. Northwest Indian Cemetery Protective Ass'n, 485 U.S. 439 (1988)
Couldn’t be matched to a paper in Crossref, so it can’t be checked.
plainSingle case- Asserted: passes — The authors put it forward as true.
- Checkable: passes — It can be checked against evidence.
- Load-bearing: passes — The paper’s conclusions depend on it.
- Based: passes — The paper gives a reason why it holds.
Probably not a substantial claim. It may state two separate claims as one.
- Not matched
A conclusion the paper draws from its own results — it cites no other source for it, so there is none to check. The quote shows it is in the paper.
In the paper
“Because he molded these canons against the backdrop of international law, 247 they should be nurtured by international norms as well as domestic values.”
§ Domesticating Federal Indian Law > 241
plainstates a cause- Asserted: passes — The authors put it forward as true.
- Checkable: fails — It may be too vague to check against evidence.
- Load-bearing: passes — The paper’s conclusions depend on it.
- Based: passes — The paper gives a reason why it holds.
Probably not a substantial claim. It may be too vague to check against evidence.
The paper states this without a source or data behind it here, so there is nothing to check it against. The quote shows it is in the paper.
In the paper
“The Ninth Circuit agreed.”
§ Domesticating Federal Indian Law > 1996]
plain- Asserted: passes — The authors put it forward as true.
- Checkable: passes — It can be checked against evidence.
- Load-bearing: fails — The paper’s conclusions may not depend on it.
- Based: passes — The paper gives a reason why it holds.
Probably not a substantial claim. The paper’s conclusions may not depend on it. The quote only partly states this claim.
A conclusion the paper draws from its own results — it cites no other source for it, so there is none to check. The quote shows it is in the paper.
In the paper
““Holding” historical and contemporary international law “in our recollection” does “shed light” on congressional plenary power in much the same way as sunshine disinfects.”
§ Domesticating Federal Indian Law > 248.
plainstates a cause- Asserted: passes — The authors put it forward as true.
- Checkable: fails — It may be too vague to check against evidence.
- Load-bearing: passes — The paper’s conclusions depend on it.
- Based: passes — The paper gives a reason why it holds.
Probably not a substantial claim. It may be too vague to check against evidence.
None of the sources cited for this claim have been checked yet.
In the paper
“Although the Forest Service modified the proposal somewhat in an effort to lessen the interference with Indian religion, the district court concluded that even as revised both the road building and the timbering “would seriously damage the salient visual, aural, and environmental qualities of the high country” and accordingly found a violation of the Free Exercise Clause.”
§ Domesticating Federal Indian Law > 1996]
plainstates a cause- Asserted: passes — The authors put it forward as true.
- Checkable: passes — It can be checked against evidence.
- Load-bearing: fails — The paper’s conclusions may not depend on it.
- Based: passes — The paper gives a reason why it holds.
Probably not a substantial claim. The paper’s conclusions may not depend on it. It may state two separate claims as one.
In the paper
“In rejecting this conclusion, the Supreme Court assumed “that the Indian respondents' beliefs are sincere and that the Government's proposed actions will have severe adverse effects on the practice of their religion,””
§ Domesticating Federal Indian Law > 1996]
What the sources say
- Not matchedcites Lyng v. Northwest Indian Cemetery Protective Ass'n, 485 U.S. 439 (1988)
Couldn’t be matched to a paper in Crossref, so it can’t be checked.
plainstates a possible causeSingle case- Asserted: passes — The authors put it forward as true.
- Checkable: passes — It can be checked against evidence.
- Load-bearing: fails — The paper’s conclusions may not depend on it.
- Based: passes — The paper gives a reason why it holds.
Probably not a substantial claim. The paper’s conclusions may not depend on it. It may state two separate claims as one.
- Not matched
A conclusion the paper draws from its own results — it cites no other source for it, so there is none to check. The quote shows it is in the paper.
In the paper
“The backdrop of international human rights norms, as they inform limitations upon federal and state power, confirms the incorrectness of this decision.”
§ Domesticating Federal Indian Law > B. FREE EXERCISE OF RELIGION
boostedstates a cause- Asserted: passes — The authors put it forward as true.
- Checkable: fails — It may be too vague to check against evidence.
- Load-bearing: passes — The paper’s conclusions depend on it.
- Based: fails — The paper may give no reason why it holds.
Probably not a substantial claim. It may be too vague to check against evidence. The paper may give no reason why it holds.
A conclusion the paper draws from its own results — it cites no other source for it, so there is none to check. The quote shows it is in the paper.
In the paper
“Application of such Euro-American assumptions about what free exercise of religion should mean is simply another example of the unilateral displacement of Native interests and the ongoing colonization of this continent.”
§ Domesticating Federal Indian Law > 231.
plainstates a cause- Asserted: passes — The authors put it forward as true.
- Checkable: fails — It may be too vague to check against evidence.
- Load-bearing: passes — The paper’s conclusions depend on it.
- Based: passes — The paper gives a reason why it holds.
Probably not a substantial claim. It may be too vague to check against evidence.
A conclusion the paper draws from its own results — it cites no other source for it, so there is none to check. The quote shows it is in the paper.
In the paper
“These international human rights norms squarely support the criticism that Lyng defined a “burden” on the free exercise of religion too narrowly.”
§ Domesticating Federal Indian Law > 231.
boostedstates a cause- Asserted: passes — The authors put it forward as true.
- Checkable: passes — It can be checked against evidence.
- Load-bearing: passes — The paper’s conclusions depend on it.
- Based: passes — The paper gives a reason why it holds.
Probably not a substantial claim.
A conclusion the paper draws from its own results — it cites no other source for it, so there is none to check. The quote shows it is in the paper.
In the paper
“Federal Indian law has been impoverished of principles, and the treaty obligations found in it have been routinely violated from the colonial period onward.”
§ Domesticating Federal Indian Law > 248.
plain- Asserted: passes — The authors put it forward as true.
- Checkable: fails — It may be too vague to check against evidence.
- Load-bearing: passes — The paper’s conclusions depend on it.
- Based: fails — The paper may give no reason why it holds.
Probably not a substantial claim. It may be too vague to check against evidence. The paper may give no reason why it holds. It may state two separate claims as one.
The paper states this without a source or data behind it here, so there is nothing to check it against. The quote shows it is in the paper.
In the paper
“The Court currently uses canons to buffer congressional excesses in these other constitutionally sensitive structural areas, 245 and the same strategy is evident in Chief Justice Marshall's creation and application of the Indian law canons.24 6”
§ Domesticating Federal Indian Law > 241
plainstates an association- Asserted: passes — The authors put it forward as true.
- Checkable: passes — It can be checked against evidence.
- Load-bearing: passes — The paper’s conclusions depend on it.
- Based: passes — The paper gives a reason why it holds.
It may state two separate claims as one.
A conclusion the paper draws from its own results — it cites no other source for it, so there is none to check. The quote shows it is in the paper.
In the paper
“These considerations are not simply matters of morality or natural law: they are made constitutionally cognizable through the backdrop of international law, as it should inform both the federal power over Indian affairs and the limitations upon that power.”
§ Domesticating Federal Indian Law > 1996]
plainstates a cause- Asserted: passes — The authors put it forward as true.
- Checkable: fails — It may be too vague to check against evidence.
- Load-bearing: passes — The paper’s conclusions depend on it.
- Based: fails — The paper may give no reason why it holds.
Probably not a substantial claim. It may be too vague to check against evidence. The paper may give no reason why it holds. It may state two separate claims as one.
The paper states this without a source or data behind it here, so there is nothing to check it against. The quote shows it is in the paper.
In the paper
“Federal Indian law issues, like issues concerning separation of powers and federalism, often involve the question whether Congress has gone too far in invading the prerogatives of another sovereign entity (the executive branch, the states, the tribes).”
§ Domesticating Federal Indian Law > 241
plainstates an association- Asserted: passes — The authors put it forward as true.
- Checkable: passes — It can be checked against evidence.
- Load-bearing: passes — The paper’s conclusions depend on it.
- Based: passes — The paper gives a reason why it holds.
Probably not a substantial claim.
A conclusion the paper draws from its own results — it cites no other source for it, so there is none to check. The quote shows it is in the paper.
In the paper
“A consideration of international human rights norms would provide a considerably greater sensitivity about any governmental action penalizing the use of a Native religious sacrament.”
§ Domesticating Federal Indian Law > 238.
hedgedstates a cause- Asserted: passes — The authors put it forward as true.
- Checkable: fails — It may be too vague to check against evidence.
- Load-bearing: passes — The paper’s conclusions depend on it.
- Based: passes — The paper gives a reason why it holds.
Probably not a substantial claim. It may be too vague to check against evidence.
A conclusion the paper draws from its own results — it cites no other source for it, so there is none to check. The quote shows it is in the paper.
In the paper
“Even if some minority religions lack protection against their destruction through governmental actions antagonistic to their belief structures, Native American religions stand on a different footing.”
§ Domesticating Federal Indian Law > 231.
plain- Asserted: passes — The authors put it forward as true.
- Checkable: fails — It may be too vague to check against evidence.
- Load-bearing: passes — The paper’s conclusions depend on it.
- Based: passes — The paper gives a reason why it holds.
Probably not a substantial claim. It may be too vague to check against evidence.
A conclusion the paper draws from its own results — it cites no other source for it, so there is none to check. The quote shows it is in the paper.
In the paper
“The current Supreme Court has largely lost this profoundly important legacy of the Marshall Court.242”
§ Domesticating Federal Indian Law > 241
plain- Asserted: passes — The authors put it forward as true.
- Checkable: fails — It may be too vague to check against evidence.
- Load-bearing: passes — The paper’s conclusions depend on it.
- Based: fails — The paper may give no reason why it holds.
Probably not a substantial claim. It may be too vague to check against evidence. The paper may give no reason why it holds.
The paper relies on this without support.
All nations have inherent authority to control the influx of foreigners.
“All nations have inherent authority to control the influx of foreigners.”
The paper relies on this without support.
Under the policy of allotment, Congress deprived Indians of more than two-thirds of their land base between 1887 and 1934.
“Under the policy of allotment, Congress deprived Indians of more than two-thirds of their land base between 1887 and 1934.”
The paper relies on this without support.
International law sanctioned colonization.
“Because international law sanctioned colonization”
The paper relies on this without support.
The most normatively attractive aspects of federal Indian law are those that respect tribal independence and federal supremacy over state governments in Indian affairs.
“The most normatively attractive aspects of federal Indian law have respected tribal independence and federal supremacy over state governments in Indian affairs.”
The paper relies on this without support.
Tribal sovereignty and separation are worth preserving in federal Indian law.
“Uncoupling the tribal member from the sovereignty of her tribe would destroy most of what is unique and worth preserving in federal Indian law.”
The authors state this as an assumption.
The constitutional void in federal Indian law is harsh, anomalous, and merits reconsideration.
“That the constitutional void in federal Indian law is harsh, anomalous, and merits reconsideration seems beyond question.”
The paper relies on this without support.
The colonial process would remain ongoing for the foreseeable future, if not forever.
“because the sovereign nation that the constitutional framers set out to establish resulted from a colonial process that would remain ongoing for the foreseeable future, if not forever”
The authors state this as an assumption.
Congress has some inherent power to deal with the issues in Indian affairs that may extend beyond the precise text of the Constitution.
“If we assume that Congress has some inherent power to deal with the issues in Indian affairs that may extend beyond the precise text of the Constitution, there remains an obvious constitutional theory for ameliorating abuses of that power: the application of the Bill of Rights.”
The paper relies on this without support.
The only legitimate constitutional justification for an expansive federal power over Indian affairs lies in interpreting the Constitution against the backdrop of international law.
“If the only legitimate constitutional justification for an expansive federal power over Indian affairs lies in interpreting the Constitution against the backdrop of international law, then international law is an important framework for constitutional interpretation throughout the field of federal Indian law.”
The paper relies on this without support.
The federal government has the power of eminent domain to take privately held land and transfer title to the tribe in compensation for Indian land taken.
“The government has that power”
Citations
Cites
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Research works printed but not linked: 1
- In this respect, Lyng, in involving religious sites, is distinguishable from Bowen v. Roy, 476 U.S. 693 (1986), in which the claim was that the federal assignment and internal governmental use of a social security number in- vaded Native American religious freedom. In addition, in this context Native Americans could also contend that their right to free exercise of religion is informed by Article 18 of the Interna- tional Covenant on Civil and Political Rights. Unlike ILO Convention 169, supra note 190, the International Covenant has been ratified by the United States. See supra text accompanying note 213 (noting that the United States has not ratified the Convention). The support of the International Covenant [Vol. 81:31
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Metadata
- Authors
- Frickey, P. P.
- Corresponding author
- Frickey, Philip P.
- Venue
- Minnesota Law Review
- Publisher
- University of Minnesota
- Published
- 1996
- Volume
- 81
- Issue
- 1
- Pages
- 31
- ISSN
- 0026-5535 (ISSN-L)
- OpenAlex
- W24553936
- Semantic Scholar
- b5591ad0f5ad29e5a7184ec7da6813f4ad4e7aff
- Cited by
- 12
- References
- 0
- Citations by year
- 2024: 1 · 2022: 1 · 2021: 1 · 2019: 6 · 2016: 1 · 2013: 1
- FWCI
- 0.00
- Type
- journal article
- Language
- en
- Open access
- Licence
- public-domain
- Locations
- Minnesota law review (publishedVersion)
- bepress Legal Repository (submittedVersion, public-domain)
- bepress Legal Repository (submittedVersion)
- Minnesota law review
- Topics
- Social Sciences › Law › Indigenous Peoples' Rights and Law
- Social Sciences › Political Science and International Relations › American Constitutional Law and Politics
- Social Sciences › Anthropology › Indigenous Cultures and History
- Keywords
- federal Indian law, tribal sovereignty, dual sovereignty, colonialism, United States Constitution, Supreme Court
About these checks
Registry, retraction, Cites and statistics results are computed, not judged, with one exception: a printed reference that no index lists is read once by a model before it counts as a citation error. Claims are extracted by a model and kept only when their quote appears verbatim in the text; each cited source is then checked, with a model’s help, for whether it says what the claim relies on. Those verdicts can be wrong — read the claim’s quote and the cited source before relying on one.
A language model drew the claims from the paper on 2026-10-23, under version 3 of the claim definition (model deepseek-v4.1-flash, prompt extract-v3).
A second model labelled each claim on 2026-10-23 (model jev-1.13-20260917, definition revision gold-guideline-v0.2).
Statistics and arithmetic are recomputed, not judged.
Confidence bands are shown only for fields calibrated on our annotated test set. None is calibrated yet, so no band is shown.
What counts as a claim ›How we measure confidence ›How we check this ›
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