6th Annual Repatriation Conference Growing Community & Moving Forward after 30 Years of NAGPRA An ALL VIRTUAL Community Conference October 26 – 28, 2020
The Association on American Indian Affairs and the University of Denver Museum of Anthropology is partnering for the 6th Annual Repatriation Conference. Because of the coronavirus pandemic, the Conference will be completely virtual and formatted for active participation and networking among participants from Indian Country, institutions, federal agencies, international institutions, attorneys, academics and others interested in repatriation and Indigenous human rights work.
This essay makes the following arguments. First, the US federal government knows how to electrify remote rural areas, and has in fact electrified rural areas as remote and inaccessible as the Appalachian Mountains. Yet, the US government has failed to electrify Navajo. Second, Navajo Nation is surrounded by power plants which send electricity to Phoenix, Los Angeles, and parts distant, yet transmission lines and infrastructure have not been properly extended from those power plants to inside of Navajo Nation. Third, the health risks of residential coal burning are well known, and given the health risks of COVID-19 and the fact that underlying respiratory conditions make the Navajo quite susceptible to this disease, the need to address this infrastructure gap is urgent.
The magical place commonly called the “Grand Canyon” is Native space. Eleven tribes hold traditional connections to the canyon according to the National Park Service. This Article is about relationships between these tribes and the agency—past, present, and future. Grand Canyon National Park’s 2019 centennial afforded a valuable opportunity to reflect on these relationships and to envision what they might become. A reconception of the relationships has begun in recent decades that reflects a shift across the National Park System as a whole. This reconception should continue. Drawing on the tribal vision for Bears Ears National Monument, this Article advocates for Grand Canyon tribes and the Park Service to consider forming a Grand Canyon Commission for cooperative management of Grand Canyon National Park. Establishing this Commission would mark the vanguard of the relational reconception, and, in this precise sense, the Commission would lay a foundation for “indigenizing” Grand Canyon.
The decision in McGirt v. Oklahoma is being heralded as the most important Indian law decision of the last 100 years, as it affirmed the reservation boundaries of the Muscogee (Creek) Reservation – an area long considered by many to be under Oklahoma’s jurisdiction. Yet, following release of the Court’s decision, the outcry from the oil and gas industry was almost instantaneous, as roughly twenty five percent of Oklahoma’s oil and gas well and sixty percent of its oil refineries are impacted by the Court’s decision. Additionally, the territory affected by the Court’s decision also includes pipelines crucial to the successful operation of the nationwide Keystone XL pipeline. While the Court was clear that its holding was limited to criminal jurisdiction under the Major Crimes Act, the decision nonetheless has broader implications for Indian country, including natural resource development and regulatory framework. Because the oil and gas industry will now have to work with tribes and the federal government instead of favorable state officials, industry officials decry the Court’s decision as being detrimental to the industry. But what exactly will be the impact of the Court’s McGirt decision on the oil and gas industry, and the natural resources development in Indian country more broadly? While the full impacts of the Court’s decision are only beginning to unfold, this Article seeks to answer the questions left hanging by the Court’s decision as they relate to traditional energy development. This Article explores the future impacts of the McGirt decision on traditional energy development. The second Part of the article summarizes the legal background that governs oil and gas development in Indian country. Part three provides an in-depth analysis of McGirt—first, describing its predecessor, Sharp v. Murphy, followed by an explanation of McGirt and its holding. The article concludes by discussing future implications of McGirt, including what it means for oil and gas development going forward as well as collateral effects. The article constitutes an important scholarly contribution as it answers important questions left open after the Court’s decision and explains how the Court’s decision has broader implications for Indian country and natural resource development generally.
Meaningful access to sacred sites is among the most important principles to the religious exercise of indigenous peoples, yet tribes have been repeatedly thwarted by the federal government in their efforts to vindicate this practice of their religion. The colonial, state, and federal governments of this Nation have been desecrating and destroying Native American sacred sites since before the Republic was formed. Unfortunately, the callous destruction of indigenous sacred sites is not just a troubling relic of the past. Rather, the threat to sacred sites and cultural resources continues today in the form of spoliation from development, as well as in the significant barriers to meaningful access indigenous peoples face.
Scholars concerned about government failure to protect indigenous sacred sites have generally agreed that the problem stems from the unique nature of indigenous spiritual traditions as being too distinct from non-indigenous religious traditions familiar to courts and legislators and therefore eluding protection afforded to other traditions. By contrast, this Article approaches the problem from an entirely different angle: we focus instead on the similarities between government coercion with respect to indigenous religious exercise and other non-indigenous religious practices. We illustrate how the debate about sacred sites unwittingly partakes of longstanding philosophical debates about the nature of coercion itself—a phenomenon that has previously gone unnoticed by scholars. This Article argues that whether or not one formally labels the government’s actions as “coercive,” the important question is whether the government is bringing to bear its sovereign power in a way that inhibits the important ideal of religious voluntarism—the ability of individuals to voluntarily practice their religious exercise consistent with their own free self-development. Indeed, this is precisely the sort of question courts ask when evaluating government burdens on non-indigenous religious exercise. The failure to ask this same question about voluntarism for indigenous religious practices has created a double standard, wherein the law recognizes a much more expansive notion of coercion for contexts impacting non-indigenous religious practices, and a much narrower conception of coercion, in the tradition of Robert Nozick, when it comes to indigenous sacred sites.
This egregious double standard in the law ought to be revisited. Doing so would have two important implications. First, when coercion is viewed clearly, tribal members and indigenous practitioners should be able to prove a prima facie case under statutes like the Religious Freedom Restoration Act (RFRA) much more easily. Second, this Article makes the novel claim that clearer understanding of the coercive control government exercises over sacred sites should animate a strong obligation under the government’s trust responsibility and plenary power doctrine to provide more—rather than less—robust protection of indigenous sacred sites.
As part of Michigan Humanities’ commitment to dialogue around critical issues and their connection to the humanities, we are coordinating Bridging Michigan, an online conversation series this summer and fall with a focus on the history of systemic inequities, their current impacts on health, education, and Indigenous rights, and the ways that the arts and humanities are active parts of creating real change.
On Thursday, September 3, from 7 to 8 p.m. (EDT) join Michigan Humanities for an online conversation featuring Eric Hemenway and Matthew L.M. Fletcher discussing the history and current state of Native mascots.