Turtle Talk

Grant Christensen has published “The Right to Protest in Indian Country” in the Columbia Law Review.

Here is the abstract:

From April 2016 until February 2017, thousands of people gathered along the Cannonball River on the border of the Standing Rock Sioux Reservation to protest the construction of the Dakota Access Pipeline. In response, state officials tried to close down roads leading to the Reservation, considered legislation that would immunize drivers who struck protesters with vehicles, and arrested hundreds of peaceful demonstrators. The #NoDAPL protests built upon a legacy of resistance by Indigenous communities against the actions of the United States. While the history of Indigenous resistance predates the nation’s founding, the power to police protest activities on tribal lands has changed markedly.

This Symposium Piece considers the right to protest in Indian country. It confronts the framework that apportions regulatory and adjudicatory power over protest activity occurring on tribal land and suggests that such regulation ought to be left entirely to the tribal sovereign. Alternatively, it argues that state regulation of protest activity in Indian country is an infringement on tribal governments’ right to make their own laws or is otherwise preempted by overwhelming tribal and federal interests. This Piece further recognizes that while the United States could impose regulations on protest activity, there are strong prudential factors that suggest it should defer regulation to the tribal sovereign. By subjecting the right to protest in Indian country solely to regulations imposed by tribal government, the United States would be respecting tribal sovereignty.