Here:
Fletcher’s Uncertainty Principle
Matthew L.M. Fletcher
Tribes as Nations: The Future of the Trust Relationship
Adam Crepelle
The Unenforceable Indian Trust
Ezra Rosser
The New Existentialism in Indian Law
M. Alexander Pearl
Fractionation by Design: Remedy Without Repair in Indigenous-Owned Trust Allotments
Jessica A. Shoemaker
Tribal Co-Management on Ceded Lands: A New Era?
Michael C. Blumm and Adam Eno
Original Comic: Tribal-Federal Symbiosis—An Aadioozaan
Matthew L.M. Fletcher
Here:
Elizabeth Hildago Reese has published “The Three Phases of the Tribal Self-Determination Era and the Phase-Out of Federal Paternalism” in the Columbia Law Review Forum.
Here is the abstract:
We commonly call the last fifty years of federal Indian law and policy the “tribal self-determination era.” This Piece argues that this era is actually three conceptually distinct though temporally overlapping phases of federal Indian law and policy development. Each of these three distinct phases is a step further dismantling the structures of federal paternalism and replacing them with laws and policies that support tribal nations’ strength, capacity, and autonomy. Paternalism has become, therefore, somewhat of an anti–North Star for the transformative federal Indian policies of the last fifty years and can continue to serve as that anti-guiding light for further federal Indian law and policy development. What makes this era challenging and noteworthy is that it is characterized by an instance of something unusual and difficult for a government: a commitment to giving up power.
Now this commitment is at a crossroads. The Biden Administration championed a third phase of policies with traditionally conservative, small government–minded commitments to start shrinking federal government bloat and promoting deference to or cooperation with local tribal decisionmaking. The Trump Administration must decide between conservative impulses to continue this work of shrinking unnecessary federal bureaucracy or more authoritarian impulses to increase the control that funding gives the executive branch over entities like tribal nations that rely on that funding.
Highly, highly recommended! Any forward-looking scholarship in this field is golden and this paper is simply brilliant.
Nazune Menka has published “The Corpus Juris of (Alaska Native) Inherent Tribal Sovereignty” in the Alaska Law Review.
Highly recommended!
Here is the abstract:
The inherent Tribal sovereignty of Native nations predates the formation of the United States and is reflected in the constitutional vision of tripartite sovereignty. Yet their sovereignty is oft diminished explicitly by federal law or implicitly by federal courts. This implicit divestiture is often the result of the federal judiciary’s inconsistent interpretations of Indigenous Peoples law. This Article argues that a more principled and coherent approach for federal judges would be to consistently make use of the corpus juris, or whole body of law, including the in pari materia or affiliated statutes canon. The Article posits that the corpus juris of inherent Tribal sovereignty requires understanding whether any federal laws have explicitly abrogated or diminished a specific Native nation’s rights to traditional self-governance and understanding traditional Tribal law. The corpus juris inherent Tribal sovereignty approach illustrates how, where the Supreme Court has utilized the in pari materia canon, the consistency and coherence of Indigenous Peoples law increases. Through an analysis of select cases, involving Native nation traditional land and ways of life, I illustrate how Alaska Native nations have been particularly impacted by the explicit and implicit diminishment of traditional ways of life. However, through traditionally informed governance systems, Alaska Native nations continue to assert their inherent Tribal sovereignty, especially when faced with Alaska’s “sole state sovereignty” arguments in federal courts. The Article utilizes the corpus juris of inherent Tribal sovereignty argument and the constitutional vision of tripartite sovereignty to illustrate how the State of Alaska’s “sole state sovereignty” arguments must fail when utilizing this more coherent approach.
Monte Mills has published “From Winans to Wallahee: Treaties, the Washington State Supreme Court, and the Pursuit of a More Just Rule of Law” in the Washington Law Review.
Here is the abstract:
The relationship between the United States federal government, the states, and Native Nations has long been at the core of federal Indian law. From the earliest decades of its jurisprudence, for example, the United States Supreme Court struggled in its efforts to analyze and define the rights, authorities, and interactions of Native Nations within and in relation to the evolving structure of constitutional federalism. Treaties between the United States and Native Nations were central to those decisions and provided a necessary, constitutional check against state interests intent on eliminating sovereign Native Nations. Those constitutional and structural implications thus go well beyond federal Indian law and provide important—but often overlooked—insight into the health and stability of fundamental aspects of our legal system as a whole and, therefore, the rule of law itself. Here in Washington, the Washington State Supreme Court developed its own approach to analyzing and interpreting treaty rights, which, for much of the first half of the twentieth century, largely ignored or dismissed treaties and rights reserved thereunder in favor of state interests. More recently, however, the state’s highest court has embarked on an effort to reassess and reckon with its role in perpetrating and perpetuating historical injustices. That effort has resulted in a series of decisions reconsidering the Court’s own treaty-related jurisprudence and, therefore, offers a timely and critically important opportunity to consider the potential and promise of this work. In the spirit of the 125th anniversary of the founding of the University of Washington School of Law and the centennial volume of Washington Law Review, this Article considers the fundamental issues posed by treaty-related questions and aims to draw lessons from the Washington State Supreme Court’s recent efforts to address historical injustices that might inform other, similar efforts across the country. Situating that assessment within the context of treaty rights and the sovereignty of Native Nations illustrates the power of this work to catalyze a deeper and broader reckoning with crucial questions of justice and the rule of law.
Highly recommended.
Teresa M. Miguel-Stearns, Samantha Ginsberg, and Kristen Cook have posted “More Than Morrill: The Intertwined History of Indian Land Dispossession, Arizona Statehood, and University Enrichment,” published by the Arizona Journal of Environmental Law and Policy, on SSRN.
Here is the abstract:
Through the federal government’s university land-grant programs, which began with the Morrill Act in 1862 and continue today, Congress has systematically allocated millions of acres of land in the western United States to states to create endowments to support the public higher education of its citizens. In Arizona, land was taken from Indigenous peoples, communities, tribes, and nations by treaty, act of congress, executive order, and force to accomplish this. As a result, by the time of statehood in 1912, the state of Arizona had accumulated approximately 850,000 acres of land around the state on behalf of higher education, including the University of Arizona, then the state’s only university and its designated land-grant institution. Today, the Arizona State Land Department still holds and manages 688,706 acres of land in trust for the benefit of public higher education. All three of Arizona’s public universities receive distributions from the revenue generated by these trust lands. The goal of this paper is to explore and analyze the University of Arizona’s historical and ongoing enrichment from land taken from Indigenous peoples by the federal government and transferred to the territory and, later, the state of Arizona in the nineteenth and early twentieth centuries for the benefit of institutions of higher education. A comprehensive understanding of Arizona’s history and the state’s current holdings and financial benefits is required to examine the policy implications and moral and legal obligations that Arizona and its universities have to Indigenous peoples in Arizona.
Christian McMillen has published “I Didn’t Know That a Patent Was a Dangerous Thing”: Forced Fee Patents, Native Resistance, and Consent” in the Western Historical Quarterly.
Here is the abstract:
Between 1906 and 1920 the Bureau of Indian Affairs (BIA) issued more than 32,000 fee patents, covering 4.2 million acres of land. More than half of the patents were issued between 1917 and 1920. The BIA forced many of these patents upon Native people without their consent. When individually allotted land went from trust to fee, the land was taxed and could be sold. The consequences were devastating. Was this legal? Many Native people protested their fee patents, but others did not. Indeed, protesting dispossession was an act of courage and defiance. Native protest led to a legal precedent that had an impact across Indian country: consent was required. But was compliance synonymous with consent? Must one resist a policy found to be illegal in order for it not to apply? For a time, the answer was yes. Ideas about consent began to change leading to another series of legal challenges to the Bureau’s forced fee patent policy.
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