In the United States, the Constitution recognizes three types of sovereigns: federal, state, and tribal. Each of these sovereign entities possesses the inherent powers of self-government and has the authority to address the social, economic, safety, and cultural needs of their citizens. However, under the mainstream conception of American law, tribal governments are often overlooked. This narrow perspective fails to acknowledge the significant contributions of Native Nations, which play a vital role in shaping the legal landscape of the United States. If we want our students to develop a more comprehensive understanding of America’s laws, we must teach them that the United States is a union not just of fifty states, five territories, and a federal district, but also of 574 unique, federally recognized tribes.
As an integral part of the American legal landscape, tribal law should also be an integral part of the law school curriculum, not only as an elective or specialized topic but integrated alongside federal, state, and local law. Legal research and writing instructors are pivotal in this endeavor. They have the unique opportunity to introduce tribal law within the core first-year curriculum. This approach allows instructors to familiarize students with the presence and relevance of tribal law, preparing them for its application in the various legal scenarios that they will encounter later in their law school and legal careers. We believe that including tribal law in LRW instruction can serve as an important step towards inclusivity in the legal profession. Given that LRW courses are where most law students form their bedrock understanding of legal authority and legal information, these courses present a substantial opportunity to help students understand the U.S. justice system in all its nuance and complexity.
Graduates with an awareness of tribal law will be better equipped to serve tribal communities, recognize and research tribal law issues when they arise, and contribute to the broader legal discourse surrounding Native American rights and interests. They may also increase their employment prospects as knowledge of tribal law may provide an advantage in some positions. This knowledge does not just benefit those working directly with or for Tribal Nations; it is essential for all legal professionals given that tribes interact extensively with federal and state governments, businesses, and individuals. Understanding tribal law empowers legal professionals to effectively address legal issues in Indian Country and contribute to a more inclusive legal system.
This Article will explore the benefits of incorporating tribal law into legal education. Part one presents actionable strategies for the effective integration of tribal law into the legal research and writing curriculum, part two explains the importance and upsides of introducing law students to tribal law research, and part three addresses some of the challenges. Two appendices provide curated lists of resources for further exploration of tribal law.
Lauren van Schilfgaarde has posted “(Un)Vanishing the Tribe,” forthcoming in the Arizona Law Review, on SSRN. Here is the abstract:
The U.S. Supreme Court has revived a century-old rhetoric that frames Tribal sovereignty as vanishing. The logic behind this reasoning is often cloaked behind concerns for states’ equal footing and interests. But once the veneer is removed, the Court’s reliance upon what I term the “vanishing Tribe trope” reveals a lawless foundation, and ultimately harms the legal principles of sovereignty it proports to enforce.
Like nation-state sovereignty, Tribal sovereignty is rooted in international norms reflecting the self-determination rights of peoples to territorial integrity, political unity, and to be free from nonintervention. International legal norms recognize dominant-dependent sovereign relations, like that between the U.S. federal government and Tribes, as negotiated power imbalances between sovereigns that nevertheless preserve their respective sovereignty and thereby preserve sovereignty broadly. Within federal Indian law, Tribal sovereignty has long been a volatile legal doctrine. Nevertheless, federal Indian law’s international roots are reflected in the federal Indian legal principle that Tribal self-government should be persevered unless Congress clearly expresses otherwise.
Such legal principles, however, are only as valuable as courts value Tribes. In the late nineteenth century, despite the fortitude of sovereignty terminology, courts often dismissed Tribal sovereignty because they perceived Tribes as vanishing. Tribes would soon be gone, so the thinking went, and so courts need only give passing concern to threats to Tribal sovereignty as those threats would soon be moot. In short, Tribal sovereignty was “temporary and precarious.” But Tribes did not vanish. Rather, Tribes are thriving, and their sovereignty is now framed in their perpetual rights to self-determination. So why then, did the U.S. Supreme Court in Oklahoma v. Castro-Huerta, hold that Tribal sovereignty had once again been implicitly divested? In citing to historically fraught late nineteenth century cases, the Court has revived antiquated views of Tribes as inferior, and inevitably vanishing. Tribes’ vanishing status permits the Court to abandon judicial restraint and imply unauthorized intrusions into Tribal sovereignty. The Court was disturbingly out-of-step with contemporary understandings of Tribal sovereignty, and consequently threatens any legal foundations on which to rely and plan for a future.
To anticipate a future that includes Tribes necessitates contending with the Court’s new embrace of the vanishing Tribe legal doctrine in Castro-Huerta and its company—doctrine that envisions a Tribe-less future. Castro-Huerta frames the Tribal-federal sovereign-to-sovereign framework as crumbling pillars limply bracing a precarious and temporary Tribal sovereignty. Anticipating Tribal futures must dismiss these crumbling pillars and will require not just contending with the vanishing Tribe trope, but with the need to build an entirely new sovereign-to-sovereign framework.
In light of the federal government’s willingness to consider new methods of tribal consultation, this article builds on previous scholarly work by arguing that the goal of tribal consultation should be consent. This conclusion is buttressed by tribal treaty language, the federal trust relationship, and the dictates of the FPIC requirement. The federal government should adopt language suggesting that consent is the goal unless not legally possible. Federal officials must be educated on tribal sovereignty, treaties, and the federal trust relationship. Consultation must begin as soon as possible in the decision-making process. Tribes should be engaged to better understand how they wish to participate in consultation. Federal officials must collaborate with their tribal counterparts in a bilateral, respectful way. And, in addition to the federal government, it may also be in the best interest of third parties, such as corporations, to assist tribes and the federal government in finding effective and meaningful consultation, as failure to do so could prove costly. Incorporating these recommendations will hopefully move us away from the broken status quo toward meaningful, legal consultations leading to consent in most instances – promoting tribal sovereignty over box-checking.
Environmental law and policy in the United States has historically ignored Native Nations as stakeholders or rights holders, thereby sidelining those Nations and forcing them to function as protestors rather than participants. This is a foundational error that tarnishes the otherwise well-intended policy underlying environmental protection of any sort. Both the international community and international rights associated with climate change must avoid these early missteps. There are additional benefits to treating Indigenous peoples as more than simply interest groups. In so many ways, Indigenous peoples represent the drivers and implementers of policy and contribute invaluable traditional ecological knowledge in understanding the interdependency and interconnectedness of the environment and communities. Across the globe, Indigenous peoples are on the front lines suffering from the effects of climate change, and they should have the opportunity to take a leading role in developing and protecting the newly identified U.N. Right to a Healthy Environment.
Native Hawaiians have been skeptical of corporate landowners’ alleged concerns over disaster preparedness and characterization of traditional water rights. They blame the prioritization of corporate water interests, the privatization of water, and the harms of colonialism for the severity of the fires. And they worry that Lahaina’s destruction could be used to furtively pass “unpopular laws and policies” that prioritize commercial uses and exacerbate political inequality. As Chandler-‘Īao’s box of water-permit applications illustrates, the Maui fires represent an inflection point for Hawaiian water law. But we did not arrive at this point overnight. Rather, the fires were the byproduct of a century of colonialism that imposed a resource-management regime that razed the environment and externalized its harms on kānaka maoli. Because of this legacy, Maui was “a ticking time bomb” for wildfires. When it is remembered that the ancient Hawaiian system of watershed management was sustainable before it was ravaged by colonialism, Maui’s current state is even more heart wrenching.
Elena A. Baylis has posted “Looted Cultural Objects,” forthcoming in the Columbia Law Review Forum, on SSRN. Here is the abstract:
In the United States, Europe, and elsewhere, museums are in possession of cultural objects that were unethically taken from their countries and communities of origin under the auspices of colonialism. For many years, the art world considered such holdings unexceptional. Now, a longstanding movement to decolonize museums is gaining momentum, and some museums are reconsidering their collections. Presently, whether to return such looted foreign cultural objects is typically a voluntary choice for individual museums to make, not a legal obligation. Modern treaties and statutes protecting cultural property apply only prospectively, to items stolen or illegally exported after their effective dates. But while the United States does not have a law concerning looted foreign cultural objects, it does have a statute governing the repatriation of Native American cultural items and human remains. The Native American Graves Protection and Restoration Act requires museums to return designated Native American cultural objects to their communities – even if they were obtained before the law went into effect. This statute offers a valuable model for repatriating foreign cultural objects that were taken from formerly colonized peoples.
The Supreme Court recently applied the narrow and relatively new anticommandeering doctrine for the first time to federal Indian Affairs legislation in Halaand v. Brackeen without explaining why the doctrine should be extended from the Interstate Commerce Clause context to that of the Indian Commerce Clause, as well as to the other congressional powers that form the basis of the Indian Child Welfare Act (ICWA). In subsequent cases relating to Indian Affairs legislation, the Court should clarify that only a very narrow version of the anticommandeering doctrine applies in this context because of the virtual absence of state authority in the area and the history of acceptance of federal activities that can be described as commandeering state enforcement activities. Existing literature in this area is limited, with Matthew Fletcher and Randall Khalil having argued, before Brackeen was issued, that ICWA should be interpreted as having been enacted under Section 5 of the Fourteenth Amendment, an invitation that the Court ultimately did not take up. This Essay, The Diminished Significance of the Anticommandeering Doctrine in the Context of Indian Affairs Legislation, is important because it explains holes in the Court’s reasoning in Brackeen and because it safeguards Congress’s ability to protect Native Americans and Tribes from longstanding abusive state practices such as the unwarranted removal of Indian children from their homes.
There are 574 federally recognized domestic dependent tribal nations in the United States. Each tribe is separate from its respective surrounding state(s) and governs itself. And yet, none of them have the power to send representatives to Congress. Our democratic representative structures function as if tribal governments and the reservations they govern do not exist. But tribal citizens do not simply live within a state and are not simply governed by that state like any other state citizen. Rather, it is tribal law and tribal governments—not state law or state governments—that primarily govern and shape the lives of tribal citizens living on reservations. Tribal governments are not complementary or subsidiary to state governments—they are frequent rivals for power and resources. This system, simply put, doesn’t make sense. Tribes should have their own representation in the federal government. This Article makes the case for why and examines how this seemingly obvious omission in our democratic structuring came to pass.
This Article examines the democratic mismatch between existing governments—which include not only 50 states, but also 574 federally recognized tribes—and the representative democratic structure that is built into the Constitution around the institution of the state. It details the failed attempts of tribal governments to obtain representation, either as states or outside of statehood. This history reveals a story about race, power, colonialism, and institutions. Attempts by white majorities to hold onto political power within states included denying Native peoples’ individual rights and denying statehood to largely Native areas until Native people assimilated or white citizens outnumbered them.
These dynamics, which this Article dubs “assimilative colonialism,” have not only shaped our existing democratic structures but have also had a lasting effect on Native relationships with political power. The nefarious brilliance of assimilative colonialism was to offer American political power to Native peoples—whether citizenship, statehood, or delegates—only and always at the cost of what made them Native. As a result, many Native people justifiably view American political power not as empowering but as dangerous. Assimilative colonialism has thus held back the emergence of Native movements for political reform by making it impossible to even imagine tribal representation in a real sense since it seemed only possible through assimilation.
It is long overdue that we step back and examine the legacy of assimilative colonialism in American representative democracy. We ought to think about structural reform and what representative structures could—and maybe should—have been on the table for tribal governments and their citizens since the beginning. We ought to be asking: What would American democratic structures look like if we truly incorporated tribal governments as equal sovereigns within the United States?
Turtle Talk 
You must be logged in to post a comment.