Bailey Ulbricht has published “Actualizing Indigenous Data Sovereignty Through Tribal Self-Governance” in the New Mexico Law Review.

Here is the abstract:

Data, as described by a Yurok Tribe council member, is “the original theft”—the first thing stolen from Native peoples in the United States. Indigenous data sovereignty seeks to redress this and prevent future data infractions by placing Indigenous communities in charge of decision-making about their own data. Yet with no established body of federal case law on tribal data authority, it is not immediately clear how Indigenous data sovereignty would fit within the complex and contradictory web of federal caselaw that confines tribes’ inherent sovereignty. This Article seeks to address this gap. First, as a policy matter, it argues that tribes are best suited to govern their own data. To illustrate this claim, this Article relies on interviews conducted with members and employees of the Yurok Tribe, the largest tribe in California, to explain what data sovereignty means to them and why it matters for tribal self-governance, economic security, cultural preservation, and the Tribe’s health and welfare. Second, as a legal matter, this Article lays out the favorable case for tribal authority to enforce tribal data sovereignty laws and policies against non-tribal members under each exception within the Montana framework. In anticipation of concerns about how to locate transient data or placeless activity, this Article proposes that federal and tribal courts use the Calder effects test, which assesses intentional forum-targeting in non-tribal cases. Finally, this Article concludes with a set of recommendations for tribes seeking to actualize their data sovereignty and for federal courts that may review future cases involving data sovereignty.

John Beaty has published “Tribal Eminent Domain: Sovereignty Gaps and Policy Solutions” in the New Mexico Law Review.

Here is the abstract:

This Article addresses the existence and scope of the tribal power of eminent domain. American Indian Tribes are sovereign entities within the United States and can exercise many traditional government powers. However, centuries of actions by the United States’ executive, legislative, and judicial branches have eaten away at the fabric of tribal sovereign powers. Currently, the scope of tribal sovereign authority is unclear with regards to eminent domain, the practice of a sovereign taking private property for public use. Eminent domain is important to many tribal governmental interests, including infrastructure development and fighting the fractionation of land interests. Although eminent domain is considered a quintessential sovereign power, scholars, courts, and tribes are unsure of the existence and scope of inherent eminent domain. This Article uses first principles, statutory enactments, tribal practice, and case law to argue that tribes retain some form of eminent domain. However, that power has limited application to nonmembers living on tribal land, hampering its effectiveness as both a practical tool and sovereign power. To fill the gaps, this Article proposes two statutes Congress can adopt, one reaffirming the existence of tribal eminent domain power and one delegating federal eminent domain power. By addressing the limits of tribal eminent domain, Congress can support tribes in their sovereign capacity as governments and allow tribes to fulfill their important policy priorities.