Judicial Review of Indian Treaty Abrogation: "As Long as Water Flows, or Grass Grows upon the Earth" -- How Long a Time Is That?
California Law Review
Charles F. Wilkinson and John M. Volkman, Judicial Review of Indian Treaty Abrogation: "As Long as Water Flows, or Grass Grows upon the Earth" -- How Long a Time Is That?, 63 Calif. L. Rev. 601 (1975), available at https://scholar.law.colorado.edu/faculty-articles/1124.
In this insightful analysis of the role of the courts in determining whether an Indian treaty has been abrogated by Congress, the authors argue that confusion over the proper judicial test for finding an abrogation all too often results in the destruction of precious American Indian treaty rights. They propose an objective test fully consonant with the importance of treaty guarantees and the unique relationship of American Indians to the federal government: that Indian treaty rights should be abrogated only by express legislative action stating both the specific promises about to be broken and the intent of Congress to break them.
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