Law Commons^™

Synching Science And Policy To Address Climate Change In Tribal Communities, John C. Ruple, Heather Tanana

Utah Law Faculty Scholarship

Climate change is a global environmental problem, and yet, the adverse impacts of climate change are disproportionately felt in tribal communities. There are 574 federally recognized tribes in the United States. While each tribe is unique and independent, many tribes share a common history of colonization and a connection to the land—legally and culturally. The majority of tribal nations were removed from their traditional homelands and placed on reservations by the federal government. In doing so, the federal government established these reservations as a permanent home for the tribe. But that home is now threatened by climate change.

The article …

Universal Access To Clean Water For Tribes In The Colorado River Basin, Heather Tanana, Jaime Garcia, Ana Olaya, Chelsea Colwyn, Hanna Larsen, Ryan Williams, Jonathan King

Utah Law Faculty Scholarship

The coronavirus pandemic has tragically highlighted the vast and long standing inequities facing Tribal communities, including disparities in water access. According to the Centers for Disease Control and Prevention (CDC), American Indians and Alaska Natives (AI/AN) are at least 3.5 times more likely than white persons to contract COVID-19. Limited access to running water is one of the main factors contributing to this elevated rate of incidence.

This report describes current conditions among Tribes in the Colorado River Basin. It outlines the four main challenges in drinking water access: (1) Native American households are more likely to lack piped water …

Identifying Barriers In Usda Programs And Services; Advancing Racial Justice And Equity And Support For Underserved Communities At Usda, Anne Castle, Heather Tanana, Bidtah Becker, Chelsea Colwyn, Jaime Garcia, Ana Olaya

Utah Law Faculty Scholarship

On July 19, 2021, the U.S. Department of Agriculture (USDA) published a notice in the Federal Register seeking input from the public on how USDA can advance racial justice and equity for underserved communities as part of its implementation of Executive Order 13985. This letter responds to the agency’s request. The United States Department of Agriculture (USDA) provides a number of programs that could improve access to clean drinking water for Tribes. While these programs have improved conditions for some tribes, several barriers exist which prevent Tribes from fully realizing the benefits of these programs. Our comments recommend: (1) removing …

Yellen V. Confederated Tribes Of The Chehalis Reservation: Brief Of Professors And Historians As Amici Curiae Supporting Respondents, Maggie Blackhawk, Michael Blumm, Kirsten Carlson, Sarah Deer, Angelique Eaglewoman, Jacqueline P. Hand, John P. Lavelle, Michael D. Oeser, Richard D. Pomp, Kekek Jason Stark, Michalyn Steele, Elizabeth Kronk Warner, Jack F. Williams, Marcia Zug

Utah Law Faculty Scholarship

Amici curiae are law professors who teach and write in the area of federal Indian law and Native American legal history. They file this brief to explain the history of the federal government’s practice of “recognizing” Indian tribes generally, as well as the specific history of recognition of Alaska Native tribes.

Textualism And The Indian Canons Of Statutory Construction, Alexander Tallchief Skibine

Utah Law Faculty Scholarship

When interpreting statutes enacted for the benefit or regulation of Indians or construing treaties signed with Indian Nations, courts are supposed to apply any of five specific canons of construction relating to the field of Indian Affairs. Through an examination of the Supreme Court’s cases involving statutory or treaty interpretation relating to Indian nations since 1987, this Article demonstrates that the Court has generally been faithful in applying canons relating to treaty interpretation or abrogation. The Court has also respected the canon requiring unequivocal expression of congressional intent before finding an abrogation of tribal sovereign immunity. However, there are two …

Beyond The Pandemic: Historical Infrastructure, Funding, And Data Access Challenges In Indian Country, Heather Tanana, Aila Hoss

Utah Law Faculty Scholarship

The COVID-19 pandemic has disproportionately impacted Tribal communities, in part, due to the historical inequities that Tribes have faced for centuries. As sovereign nations, Tribes have the authority to self-govern their people and land. However, the federal government has a special trust responsibility and treaty obligations to Tribes that it often has failed to fulfill. As a result, many Tribal communities live in inferior living conditions as compared to their non-Native counterparts. This Chapter builds on the prior report to explore the historical inequities Tribes experience and how they have been compounded by the pandemic. More specifically, it identifies persistent …

Changing Consultation, Elizabeth Kronk Warner, Kathy Lynn, Kyle Whyte

Tribal Consultation Project Work

Examples abound of both historic and modern situations where the federal government and tribes failed to engage in effective consultation. Yet, numerous reasons exist—such as effective management of natural resources and the negative impacts of climate change—for tribes and the federal government to engage in effective consultation. Effective consultation can be met through strong government-to-government relationships between Indian tribes and federal agencies and should be based on respect, mutual understanding, and common goals. This can be accomplished through interactions that will enhance consultation and provide other pathways to achieving a strong government-to-government relationship. To date, however, many within Indian country …

Changing Consultation, Elizabeth Kronk Warner, Kathy Lynn, Kyle Whyte

Tribal Consultation Database

Examples abound of both historic and modern situations where the federal government and tribes failed to engage in effective consultation. Yet, numerous reasons exist—such as effective management of natural resources and the negative impacts of climate change—for tribes and the federal government to engage in effective consultation. Effective consultation can be met through strong government-to-government relationships between Indian tribes and federal agencies and should be based on respect, mutual understanding, and common goals. This can be accomplished through interactions that will enhance consultation and provide other pathways to achieving a strong government-to-government relationship. To date, however, many within Indian country …

Living In Two Worlds, Elizabeth Kronk Warner

Utah Law Faculty Scholarship

Anti-racism calls us to work toward ending racial hatred, bias, systemic racism, and the oppression of marginalized groups. For many of us working in higher education leadership, this means that we are actively creating space for marginalized voices both in classrooms and through research. But who should be included is not always a question with a clear answer. Additionally, because of the complexity of identity, not all members of a marginalized community may express themselves in a monothetic way. This essay examines such a group possessing a complex identity – Indigenous people, from my personal lived experience. The essay explores …

Water Is Life: Law, Systemic Racism, And Water Security In Indian Country, Heather Tanana, Julie Combs, Aila Hoss

Utah Law Faculty Scholarship

The 21st Century has been marked by significant advancements in technology, from travel to Mars and self-driving cars to smartphones and bitcoin. And yet, at the same time, hundreds of thousands of Native Americans live without access to safe, clean and reliable drinking water. By some estimates, 48% of households on Indian reservations do not have clean water or adequate sanitation. This lack of access has been highlighted by the coronavirus pandemic, but it is not a new issue. Native American communities have long suffered inequities stemming from colonization and perpetrated by federal policy. While the pandemic has devastated many …