Abstract

http://ssrn.com/abstract=1437282
 


 



Avoiding Santa Clara v. Martinez: The Litigation in Federal Court of Civil Actions Under the Indian Civil Rights Act


Kevin Gover


Arizona State University (ASU) - Sandra Day O'Connor College of Law

Robert Laurence


University of Arkansas

1985

Hamline Law Review, Vol. 8, p. 497, 1985

Abstract:     
While Santa Clara Pueblo v. Martinez precisely holds that the Indian Civil Rights Act (ICRA) does not create, either expressly or by implication, a federal civil cause of action upon which a suit in federal court might be based for violation of its guarantees and it might appear that the issue is closed and civil actions under the ICRA would be brought in tribal court for final determination, but the combination of eager plaintiffs, clever attorneys and receptive judges has kept the ICRA alive in federal court. This article discusses those cases in which Martinez has been avoided and a federal court sets itself to the task of inspecting and potentially restricting tribal activity. It addresses the jurisdictional question involved in those cases, while glancing at the merits. It also discusses each of the Martinez-avoidance devices which have been attempted, both successfully and unsuccessfully, and their interplay. Additionally, it looks at the theoretical basis and practical impact of each device and concludes that these devices are not within the spirit, if even the letter, of Martinez.

Number of Pages in PDF File: 46

Keywords: Santa Clara Pueblo v. Martinez, Tribal Court Jurisdiction, Indian Law

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Date posted: July 23, 2009  

Suggested Citation

Gover, Kevin and Laurence, Robert, Avoiding Santa Clara v. Martinez: The Litigation in Federal Court of Civil Actions Under the Indian Civil Rights Act (1985). Hamline Law Review, Vol. 8, p. 497, 1985. Available at SSRN: http://ssrn.com/abstract=1437282

Contact Information

Kevin Gover (Contact Author)
Arizona State University (ASU) - Sandra Day O'Connor College of Law ( email )
Box 877906
Tempe, AZ 85287-7906
United States
Robert Laurence
University of Arkansas ( email )
Fayetteville, AR 72701
United States
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