Indigenous, Indian, and Aboriginal Law Commons^™

Homelands Not Graveyards, M. Alexander Pearl

Faculty Articles

Within the last five years, the U.S. Supreme Court has taken up several transformative cases affecting Native nations and federal Indian law jurisprudence. The Supreme Court’s decision in Arizona v. Navajo Nation is no different. This Article examines that decision and situates it within that legal history as well as the realities of present-day water resource availability. While recent decisions have shown the Court’s willingness to confirm fundamental components of federal Indian law, such as the legal tests for determining the persistence of reservation and the authority of Congress to enact the Indian Child Welfare Act, the Court’s examination of …

Corporeal Property And The Limits Of Nagpra, M. Alexander Pearl

Faculty Articles

No abstract provided.

Indigenous Communities Suffer Multigenerational Trauma (“Susto”) From The Trafficking And Slavery Of Native Women And Children, Bill Piatt, Karagan Carson, Meghan Monahan, Makayla Perez

Faculty Articles

Trafficking and slavery have probably existed as long as humanity has existed. Despite efforts on many fronts, it will likely not be eradicated in our lifetimes. Bondage and abuse impose unthinkable suffering upon the immediate victims caught in the clutches of trafficking. Yet Native people and communities suffer unique, multi-generational, and almost permanent trauma, often referred to as susto. Our domestic law and policies have even resulted in the extinguishing of the formal legal Indian identity of Native victims and the destruction of their tribal connections. There is hope that the application of traditional prayer and ceremonies can provide some …

Indianness As Property, Carla Pratt

Faculty Articles

This Article expands upon the seminal work by Cheryl Harris entitled Whiteness as Property by exploring the intersection of race and property through Indianness. Indianness has been constructed as a form of property conferring rights and privileges to its holders which this Article examines through the inertial relationship between race and legal status. Tracing the historical evolution of Indianness from the slavery era to the modern era demonstrates the complex relationship between tribal sovereignty, citizenship and Indian identity. This legal history contextualizes contemporary disputes over who can enjoy tribal citizenship and be Indian. This Article advocates for a reevaluation of …

Second-Class Administrative Law: Lincoln V. Vigil'S Puzzling Presumption Of Unreviewability, Matthew B. Lawrence

Faculty Articles

Administrative law ordinarily presumes that someone hurt by “arbitrary and capricious” agency action may seek relief in federal court unless Congress says otherwise. Administrative law does the opposite, however, when the harmful agency action happens to be one “allocating a lump-sum appropriation” (whatever that means). When it comes to spending programs that courts deem to fit in this ill-defined category, agency actions are presumptively immune from judicial review, insulated from the safeguards of administrative law no matter how arbitrary.

This Article looks behind the superficial, technocratic simplicity of the presumption of unreviewability through a novel, person-sensitive study of its origins …

Green Colonialism: Sidelined While On The Front Lines, M. Alexander Pearl

Faculty Articles

No abstract provided.

The Consequences Of Mythology: Supreme Court Decisionmaking In Indian Country, M. Alexander Pearl

Faculty Articles

Ilanoli isht unowa. We tell our own stories. A single historical event has many stories. Although this nation's official chronicle expected and even hoped for Indigenous peoples to fade away, we are still here. Our histories are marked by resistance, survival, sovereignty, and renaissance. Only now, in the later stages of the American experiment, do our histories have the chance to matter in new forms and spaces. How much these stories matter within contemporary contexts depends upon where they are spoken and more importantly, who is listening. On the pages of a U.S. Supreme Court opinion, what stories are told …

Renard Strickland: A Legacy Of Generosity, Darla Jackson

Faculty Articles

No abstract provided.

Rennard Leaves Us Words Of Thunder, Bill Piatt

Faculty Articles

Rennard Strickland was a quiet, modest, genial man who made many contributions to legal education over the span of his career. Among his most important gifts are the words he wrote and spoke which alerted us to the extent that the legal system contributed to the genocide of Indigenous America.

Originalism And Indians, M. Alexander Pearl

Faculty Articles

Indian tribes, in the context of US. constitutional theory, do not fit. They are an anomaly in American governmental structure. Tribal governments exist today within the constitutional framework of the United States only by virtue of acrobatic displays of rhetorical legal reasoning and mythologized interpretations of history. Originalist theory can provide a clear exit from the inconsistencies and inaccuracies underlying the foundation of federal Indian law. Typically, scholars embracing an originalist position are thought of as conservative. A conservative position is typically associated with opposition to tribal sovereignty. In contrast to those traditional views, I argue that an originalist view …

Human Rights, Indigenous Peoples, And The Global Climate Crisis, M. Alexander Pearl

Faculty Articles

The global climate crisis is an ongoing event the likes of which we have yet to experience. The science is clear, the phenomenon is traceable, and the effects are far-reaching. But, the consequences of the climate crisis affect particular populations more so than others, and often times the affected populations are voiceless. Among those most impacted are indigenous peoples. Indigenous peoples stand in a unique place in the context of climate change. In general, indigenous peoples have a comprehensive relationship with their place and surroundings, which incorporates culture, livelihood, economy, and a defining sense of self. Land and resources are …

Indigenizing Equality, M. Alexander Pearl, Kyle Velte

Faculty Articles

Notwithstanding the significant victories of the LGBT civil rights movement over the past 20 years, culminating in the declaration of full marriage equality in Obergefell v. Hodges, anti-LGBT sentiment generally, and anti-marriage-equality sentiment in particular, continue to run deep. One pocket of resistance is in some tribal communities. While Obergefell unequivocally resolved the problem of the “patchwork quilt” of marriage equality among the states, the problem of gaps in marriage equality among Tribal Nations has left the problem of the “patchwork quilt” intact. This article answers the question: What is the effect of federal marriage equality on the modern expression …

Redskins: The Property Right To Racism, M. Alexander Pearl

Faculty Articles

Everyone has an opinion, from President Obama to Matthew McConaughey, about the Washington football team name. This Article comprehensively analyzes the legal and social issues surrounding the mascot controversy. I focus my inquiry on the interaction of trademark law and Indian law. I offer three primary contributions in this Article. First, the current mainstream conception of harm caused by the team name is subjective, and I argue that the harm caused by the team name and logo is objective, testable, and demonstrable. Psychological research shows that these images harm Native people. Second, the remedies offered by the Lanham Act are …

Paint Chip Indians, M. Alexander Pearl

Faculty Articles

This essay is a follow up to a previous article “How to Be an Authentic Indian” published in November of 2014 in the California Law Review Circuit. (M. Alexander Pearl, How to Be an Authentic Indian, 5 Cal. L. Rev. Circuit 392 (November 2014). This essay continues the satiric tone of my previous article and focuses on a single nationally relevant issue. With the current media emphasis on the controversy over recent representations of Indians in television and film (such as Netflix’s Unbreakable Kimmy Schmidt and the Adam Sandler written/directed Ridiculous Six), the essay is topical and examines the critiques …

Of "Texans" And "Custers": Maximizing Welfare And Efficiency Through Informal Norms, M. Alexander Pearl

Faculty Articles

Professor Robert Ellickson (Yale) theorized that the informal norms of a close-knit community maximize aggregate welfare and Professor Barak Richman (Duke) identified two distinct types of private ordering systems: “shadow of law” and “order without law.” Under the Ellickson-Richman structure, many Indian tribes qualify as close-knit groups where informal norms effectively operate. The additional trait of isolation — both geographic and cultural — makes them ideal communities for the prioritization of informal norms. The imposition of external law, such as state law, is harmful and unnecessary to the maintenance of order in these communities. Recent legislative efforts to ameliorate criminal …

How To Be An Authentic Indian, M. Alexander Pearl

Faculty Articles

The mascot and team name of the Washington, D.C. professional football team is making headlines. What do Authentic Indians really think about it? This essay clears the air by replacing the liberal media talking points with an actual viewpoint from Indian Country. This perspective gives an inside view into the significant efforts to maintain longstanding traits of “Indian-ness” against an onslaught of political correctness gone mad.

A Legal Practitioner’S Guide To Indian And Tribal Law Research, Kelly Kunsch

Faculty Articles

This article is a guide to legal research with the specific goal of assisting practitioners. The typical practitioner would be an attorney, but many professionals who work within the arena of Indian and tribal law may not have the formal legal training that attorneys do. The article is a discussion of the resources available to research the law, the issues that often arise in the area, and the approaches to take in applying the resources to the issues. It is not a classic bibliography listing resources (often alphabetically), and is not intended to be comprehensive in the resources mentioned. Acknowledging …

A Dark Side Of Virtue: The Inter-American Court And Reparations For Indigenous Peoples, Thomas Antkowiak

Faculty Articles

"The Inter-American Court of Human Rights has now developed a significant jurisprudence on indigenous peoples, far more extensive than the case law of the other regional human rights tribunals. Also, unlike the various United Nations institutions that promote indigenous rights, the Inter-American Court issues binding and detailed judgments. As a result, the Court has become a global leader in the adjudication and redress of indigenous claims. For this reason, this first close and critical examination of the Court’s reparations for indigenous peoples is vital. With respect to non-monetary remedies, the Court has ordered the restitution of communal lands and other …

Fishable Waters, Catherine A. O'Neill

Faculty Articles

This article discusses the implications of tribes' treaty-secured rights to take fish for current efforts to set water quality standards in Washington and elsewhere in the Pacific Northwest. Among other things, this article considers the impact of ongoing treaty rights litigation, including the landmark ruling in the "culverts" case handed down by the Western District of Washington in March, 2013. Although this article focuses on agency decision making in the tribal context, it recounts a debate that has often been framed by arguments that are familiar from more general discussions of risk-based regulation. In fact, these generic arguments are often …

Rights, Resources And Rhetoric: Indigenous Peoples And The Inter-American Court, Thomas Antkowiak

Faculty Articles

In 2012, the Inter-American Court of Human Rights handed down Sarayaku v. Ecuador, a crucial decision on indigenous rights. This article considers how the Sarayaku judgment impacts the Court’s case law on indigenous lands and resources, and evaluates that jurisprudence as a whole. Examining the cases, it becomes evident that the Tribunal now connects a number of key indigenous rights to the right to property, Article 21 of the American Convention on Human Rights. When traditional lands are involved, the right to property has become the Court’s structural basis for indigenous rights. For significant reasons, however, the right to property …

Comments Of The Center For Indian Law & Policy On Washington’S Fish Consumption Rate Technical Support Document, Catherine O’Neill

Faculty Articles

Comments Submitted to the Washington State Department of Ecology.

Conducting Research With Tribal Communities: Sovereignty, Ethics, And Data-Sharing Issues, Catherine O’Neill, Anna Harding, Barbara Harper, Dave Stone, Patricia Berger, Stuart Harris, Jamie Donatuto

Faculty Articles

When conducting research with American Indian tribes, informed consent beyond conventional Institutional Review Board (IRB) review is needed because there may be potential for adverse consequences at a community or governmental level that are unrecognized by academic researchers. This paper reviews sovereignty, research ethics, and data-sharing considerations when doing community-based participatory health-related or natural resource-related research with American Indian nations and presents a model material and data-sharing agreement that meets tribal and university requirements. Only tribal nations themselves can identify potential adverse outcomes, and they can do this only if they understand the assumptions and methods of the proposed research. …

Tribute To Elouise Cobell, Dennis Gingold, M. Alexander Pearl

Faculty Articles

Cobell v. Salazar, the landmark class-action case, and its settlement arise out of a painful period in American history. For more than a century, the government's abuse of individual Indian trust beneficiaries has been documented in various government reports and has been debated in Congress, but nothing that Congress did or said stopped egregious breaches of trust committed by the executive branch. The United States Court of Appeals for the D.C. Circuit noted that "[t]he General Accounting Office, Interior Department Inspector General, and Office of Management and Budget, among others, have all condemned the mismanagement of the Individual Indian Money …

Introduction To The Iachr Report On Indigenous And Tribal Peoples’ Rights Over Their Ancestral Lands And Natural Resources: Norms And Jurisprudence Of The Inter-American Human Rights System, Taiawagi Helton

Faculty Articles

No abstract provided.

Loving Indian Style: Maintaining Racial Caste And Tribal Sovereignty Through Sexual Assimilation, Carla Pratt

Faculty Articles

Scholars have generally characterized Loving v. Virginia as a case about the line separating whites from blacks. But within the subtext of Loving there is an additional narrative about the line separating blacks from Indians. State laws governing miscegenation had a profound impact on tribal law and the practices of tribal people by indirectly regulating interracial relations between certain nonwhite groups of people and rendering blacks as undesirable partners for marriage.

Protecting The Tribal Harvest: The Right To Catch And Consume Fish, Catherine O’Neill

Faculty Articles

This article transcribes a presentation delivered by Professor O’Neill at the EPA-Tribal Leaders Summit, hosted by the Confederated Tribes of the Umatilla Indian Reservation, August 21-25, 2006. This article maintains that the call to protect tribal harvests—to ensure healthy and robust fisheries—is at the core of the sovereign compact between the United States and the various Native nations. The United States is, in fact, legally obligated to uphold this compact, manifested prominently in the treaties. The United States and the states are also legally bound to remedy a long history of attempts to assimilate and discriminate against Native peoples and …

Tribal Kulturkampf: The Role Of Race Ideology In Constructing Native American Identity, Carla Pratt

Faculty Articles

No abstract provided.

Tribes And Tribulations: Beyond Sovereign Immunity And Toward Reparation And Reconciliation For The Estelusti, Carla Pratt

Faculty Articles

This Article advocates a form of micro-reparations for a limited class of African Americans--the Estelusti (black Indians). The Article seeks reparations in the form of racial healing not only from the United States Government, but also from one particular participant in African American slavery--Native American Indian Tribes. The Article begins by defining the theory of micro-reparations and providing the historical foundation which serves as the factual predicate to the claim that black Indians have for reparation. This part of the article establishes how the rule of hypo-descent or the "one drop rule" has served historically and presently to exclude black …

Current Issues In Native American Law, Martha Vazquez, Taiawagi Helton, Paul Frye, Gloria Valencia-Weber, Samuel Winder, John Echohawk

Faculty Articles

No abstract provided.

Nation Building In Indian Country: The Blackfoot Constitutional Revision, Taiawagi Helton

Faculty Articles

No abstract provided.