Law and Race Commons^™

Inextricably Political: Race, Membership, And Tribal Sovereignty, Sarah Krakoff

Washington Law Review

Courts address equal protection questions about the distinct legal treatment of American Indian tribes in the following dichotomous way: are classifications concerning American Indians “racial or political?” If the classification is political (i.e., based on federally recognized tribal status or membership in a federally recognized tribe) then courts will not subject it to heightened scrutiny. If the classification is racial rather than political, then courts may apply heightened scrutiny. This Article challenges the dichotomy itself. The legal categories “tribe” and “tribal member” are themselves political, and reflect the ways in which tribes and tribal members have been racialized by U.S. …

Towards A Balanced Approach For The Protection Of Native American Sacred Sites, Alex Tallchief Skibine

Michigan Journal of Race and Law

Protection of "sacred sites" is very important to Native American religious practitioners because it is intrinsically tied to the survival of their cultures, and therefore to their survival as distinct peoples. The Supreme Court in Oregon v. Smith held that rational basis review, and not strict scrutiny, was the appropriate level of judicial review when evaluating the constitutionality of neutral laws of general applicability even when these laws impacted one's ability to practice a religion. Reacting to the decision, Congress enacted the Relgious Freedom Restoration Act (RFRA), which reinstated the strict scrutiny test for challenges to neutral laws of general …

Picuris Pueblo Tribal Court Handbook (2012), Tribal Law Journal Staff

Tribal Law Journal

This handbook helps take some of the mystery out of practicing in tribal courts. Without the necessary information to learn new rules and protocols many attorneys are understandably reluctant to practice in a new jurisdiction. As a result, tribal courts are underused or misused. This handbook is intended to help attorneys and advocates become more aware of the various individual tribal court systems and to learn their rules and protocol.

Soft-Voiced Warrior Song, Donald G. Mcintntyre

Tribal Law Journal

Soft-Voiced Warrior Song is a mixed media construction. The piece started with a basic image of a man’s head, using black acrylic paint on a white canvas. This is to suggest that in the beginning things were, for the most part, black and white. The laws of engagement were simple. It was essential to maintain harmony with one’s environment. Among the Anishinabek, to sustain this balance, the Soft-Voiced-Warrior-Song was employed; this was a way of recognizing your place within the environment to determine if diplomacy or war was the most likely to return unity. Song was a method of listening …

Salmon People In An Era Of Depleting Salmon: The Swinomish Indian Tribal Community’S Climate Adaptation Action Plan As A Manifestation Of Tribal Sovereignty, Kelly Davis

Tribal Law Journal

Climate change presents novel challenges to indigenous peoples striving to maintain their place-based subsistence cultures. Climate change is altering physical environments, tribes are experiencing detrimental impacts, and adaptation is necessary to preserve indigenous lifestyles. The Swinomish Indian Tribal Community, a Coast Salish tribe in northwestern Washington State, has taken the initiative in tribal climate change adaptation efforts.

In 2010, the Swinomish Office of Planning and Community Development issued a thorough Climate Adaptation Action Plan, which delineates strategies the vulnerable coastal, salmon-dependent tribe must take. Resilient social systems, like American Indian tribes, are capable of anticipating and planning for the future. …

Judicial Selection Methods, Tribal Politics, And Strong Government: Navajo Nation At The Crossroads, Bethany Sullivan

Tribal Law Journal

This article by Bethany Sullivan examines the judicial selection methods of the Navajo Nation and its impact on the Navajo Nation. After surveying the various methods of judicial selection by both the United State and Navajo Nation, the author explores potential changes to the existing selection methods of the Navajo Nation. Ultimately, however, the author argues for the maintenance of the existing selection methods and warns against future efforts to reform the Navajo appointive system.

Northern Cheyenne Tribe: Traditional Law And Constitutional Reform, Sheldon C. Spotted Elk

Tribal Law Journal

This profile by Sheldon C. Spotted Elk examines the U.S. Government's infringement on the Northern Cheyenne's political sovereignty. Most significantly, this profile examines the relationship between the oral history of the Northern Cheyenne and its impact on traditional tribal governance and law. Following the Northern Cheyenne's adoption of a modern constitution, many members fought to continue living under a traditional constitution. Ultimately, the Northern Cheyenne a written IRA compatible constitution while maintaining an oral constitution. The delicate balance allows the Northern Cheyenne to address modern issues while also keeping the fundamental traditional and customary law of the tribe alive.

Remarks, James Anaya

Publications

These remarks were delivered at the Closing Plenary--Indigenous Peoples and International Law: A Conversation with UN Special Rapporteur James Anaya and Inter-American Commission Rapporteur Dinah Shelton.

Inextricably Political: Race, Membership, And Tribal Sovereignty, Sarah Krakoff

Publications

Courts address equal protection questions about the distinct legal treatment of American Indian tribes in the following dichotomous way: are classifications concerning American Indians "racial or political?" If the classification is political (i.e., based on federally recognized tribal status or membership in a federally recognized tribe) then courts will not subject it to heightened scrutiny. If the classification is racial rather than political, then courts may apply heightened scrutiny. This Article challenges the dichotomy itself. The legal categories "tribe" and "tribal member" are themselves political, and reflect the ways in which tribes and tribal members have been racialized by U.S. …