Turtle Talk

Nazune Menka has posted “The Reparative Return of Treatymaking? Legal Norms, Native Nations, & the United States” on SSRN.

Here is the abstract:

This Article traces the various and conflicting legal norms that have influenced Indigenous Peoples Law over the last 400 years. While this Article builds upon several scholars at the nexus of Indigenous Peoples Law, constitutional law, and international law, it is the first to trace the thread of legal norms that weaves through history to the present. Through a nuanced recounting of legal history and storytelling, a clearer understanding of this field of law emerges that is important in at least two ways. First, conflicting legal norms have had an inordinate impact on the field, exacerbating Native Nation injustices over time. Second, the legal norms of diplomacy and shared sovereignty, which have roots in early western law and philosophy, have withstood the test of time and could provide legible and enforceable reparations to Native Nations. The Article illustrates how these legal norms have informed the rich history and practice of diplomacy and treatymaking in the pre-and early Republic eras. And they have rightfully influenced the resurgence of the original understanding of the Constitution and the diplomatic relationship between the federal government and Native Nations. The Article concludes by identifying how contemporary international law has continued to have an impact on legal norms in Indigenous Peoples Law and proposes a normative argument: that treatymaking, as the original approach to nation-to-nation relationship building, should be reinstated.