Turtle Talk

Marcia Ann Zug has posted “‘In My Defense, I Have None:’ Taylor Swift, Indian Law, And A Re-Examination Of Custom’s Inapplicability In The United States,” forthcoming in the Harvard Journal of Environmental Law, on SSRN. Here is the abstract:

Traditions matter. They connect people with their past and provide a sense of identity and community in the present. When they disappear, the opposite occurs; individuals are left isolated and detached. The common law doctrine of custom was crafted to protect community customs and traditions, yet for centuries, American courts have repeatedly declared this doctrine inapplicable and irrelevant. This Article demonstrates that the inapplicability of customary law in the United States has been greatly exaggerated. More specifically, this Article shows it was a deliberate fabrication created to justify both the seizure of native lands and the commencement of the American Revolution. Acknowledging this shameful history, which includes the centuries-long erasure of native nations and the modern-day denial of tribal rights, demands the reexamination of the doctrine of custom, and its alleged inapplicability. This Article explores how and why custom was declared dead in America while also advocating for its revival. Custom defines who we are, and the doctrine of custom provides an essential framework for protecting the cultural practices that shape our collective identity. Safeguarding our customs-from what we eat, to where we play-is vitally important. Unfortunately, current methods of protection are limited and largely ineffective. Reviving customary law offers a potential solution that will benefit all Americans while also addressing the particular injustice of declaring native customs, and by extension, native people, irrelevant.