Scholarship
New Article by Lorinda Riley on the Role of Politics in Federal Recognition
Lorinda Riley has published “When a Tribal Entity Becomes a Nation: The Role of Politics in the Shifting Federal Recognition Regulations,” in the American Indian Law Review.
Here is a description excerpted from the article’s introduction:
This article explores how each presidential administration has both shaped and bent the federal recognition regulations to fulfill its political priorities. By merging a quantitative analysis of each administration’s federal recognition record and the political realities that each administration faced, this study provides a rare inquiry into the political nature of the recognition process. First, this article examines the regulatory history of federal recognition, including a detailed discussion of various versions of the regulation and accompanying guidance published by the Department of the Interior (DOI). Then the article provides an overview of how politics play into the regulatory process and the implementation of regulation. Finally, the article re-visits each administration’s actions related to federal recognition, and considers how each administration has utilized these regulations to serve its own political priorities.
Indigenous Summer Intensive
This May, the University of Victoria Law School is running a month-long Summer Intensive in Indigenous Law and Comparative Indigenous Legal Issues. Both Val Napoleon and John Borrows are teaching.
They accept other law professors, for-credit students, as well as students/lawyers who may want to audit the courses.
There are different application deadlines for credit vs. non-credit students. Here is the information:
http://www.uvic.ca/law/about/indigenous/indigenoussummerintensive.php
Here is an example of work from the Indigenous Law Research Unit:
https://www.youtube.com/watch?v=7uNgq7raxk4
Please feel free to write Val Napoleon, John Borrows, or Janet Person, the admissions officer, if you have any questions (1-250-721-8155).
Latest Issue of The First Peoples Child & Family Review
Table of Contents here.
This issue includes Finding their way home: The reunification of First Nations adoptees by Ashley L. Landers, Sharon M. Danes, and Sandy White Hawk.
New Carla Fredericks Scholarship on Tribal Energy
Carla Fredericks has posted “Plenary Energy,” forthcoming in the West Virginia Law Review, on SSRN.
Here is the abstract:
An incompatible relationship exists between the federal trust responsibility over Indian tribes and tribal sovereignty, the conflicting nature of which has been exacerbated by numerous judicial confirmations of the unbridled congressional plenary power over all tribal affairs. Nowhere is there more conflict between the trust responsibility and sovereignty than within the context of mineral resource development on tribal lands. The evolution of the regulatory framework of Indian mineral development can be viewed as a continuum, with maximum trust obligation and minimum tribal sovereignty on one extreme, and an inversion of these two variables on the other. There currently exists pending legislation that would amend the 2005 Energy Policy Act in a manner that would allow tribes greater autonomy in developing their mineral resources without necessarily compromising the trust relationship. But, as this article suggests in using the Keystone XL Pipeline as a case study, tribes should not rely on Congress to act in the interest of tribal sovereignty unless they can attach this interest to a strong political impetus. Invoking both the United Nations Declaration on the Rights of Indigenous People and Convention No. 169 of the International Labour Organization, this article contends that attaining a understanding of American Indian rights as fundamental through an international human rights framework can help untangle the web of conflicting doctrines that very much defines American Indian law today, opening the door to a paradigm shift in the domestic relationship between tribes and the federal government that would allow tribes to attain economic self-sufficiency through their own assets.
Save the Date: 4th Annual Tribal Lands Conference
Link to announcement here.
Registration open for the University of Arizona College of Law’s 2-day conference in January.
Save the Date: N. Scott Momaday at U-M
The Inaugural Robert F. Berkhofer, Jr. Lecture
in Native American Studies
An Evening with N. Scott
Momaday
Friday, March 11, 2016
6:00 – 7:30 PM
Michigan League Ballroom
Reception to follow lecture
Pulitzer Prize-winning novelist, Native American scholar, and poet N. Scott Momaday has been hailed as “the dean of American Indian writers” by the New York Times. He crafts — in language and imagery — majestic landscapes of a sacred culture.
Named a UNESCO Artist for Peace and Oklahoma’s poet laureate, he was also a recipient of the 2007 National Medal of Arts, presented by President George W. Bush. Momaday was the first Native American to be awarded the Pulitzer Prize for his novel, House Made of Dawn, widely considered to be the start of the Native American Renaissance. His most recent volume, Again the Far Morning: New and Selected Poems, was released in 2011.
His other awards include a Guggenheim Fellowship and the “Mondello,” Italy’s highest literary honor. His works include The Way to Rainy Mountain, The Names: A Memoir, The Ancient Child, and a new collection, Three Plays, which celebrates Kiowa history and culture. He was featured in the Ken Burns documentary, The West, that showcased his masterful retelling of Kiowa history and mythology.
For more information, contact Scott Lyons, Director of Native
American Studies at U-M (lyonssr@umich.edu).
Robert F. Berkhofer, Jr. (1931-2012) was an historian and a leading scholar in the field of Native American studies. The author of many influential books, including The White Man’s Indian: Images of the American Indian from Columbus to the Present (1978), Berkhofer taught at Michigan from 1973-1991. This annual lecture on Native American Studies honors his work and legacy.
New Scholarship on the Cherokee Freedmen Controversy
Lolita Buckner Inniss has published “Cherokee Freedmen and the Color of Belonging” in the Columbia Journal of Race and Law. PDF
The abstract:
This Article addresses the Cherokee Nation and its historic conflict with the descendants of its former black slaves, designated Cherokee Freedmen. This Article specifically addresses how historic discussions of black, red, and white skin colors, designating the African-ancestored, aboriginal (Native American), and European ancestored people of the United States, have helped to shape the contours of color-based national belonging among the Cherokee. The Cherokee past practice of black slavery and the past and continuing use of skin color-coded belonging not only undermines the coherence of Cherokee sovereignty, identity, and belonging but also problematizes the notion of an explicitly aboriginal way of life by bridging red and white cultural difference over a point of legal and ethical contention: black inequality.
2015 Top SSRN Papers in American Indian Law
It was a great year for American Indian law scholarship. Indian law scholars placed papers at Texas, UCLA, Indiana, Cardozo, North Dakota, Pepperdine, Mississippi, and many other general law reviews, as well as numerous specialized reviews.
Here are the top American Indian law papers from 2015 (January until now):
1.Owning Red: A Theory of Indian (Cultural) Appropriation
Forthcoming Texas Law Review (2016)
Angela Riley and Kristen A. Carpenter
University of California, Los Angeles (UCLA) and University of Colorado Law School
Date Posted: September 04, 2015
Last Revised: October 08, 2015
Accepted Paper Series
216 downloads
2. Water Rights, Water Quality, and Regulatory Jurisdiction in Indian Country
Stanford Environmental Law Journal, Vol. 34, No. 2, pp. 195-245 (2015), University of Washington School of Law Research Paper No. 2015-21
Robert T. Anderson
University of Washington School of Law
Date Posted: June 27, 2015
Last Revised: October 15, 2015
Accepted Paper Series
201 downloads
3. Guarding Against Exploitation: Protecting Indigenous Knowledge in the Age of Climate Change
Joseph Brewer II and Elizabeth Ann Kronk Warner
University of Kansas and University of Kansas – School of Law
Date Posted: February 22, 2015
Working Paper Series
201 downloads
4. Consultation or Consent: The United States Duty to Confer with American Indian Governments
North Dakota Law Review, Vol. 91, 2015, Forthcoming
Robert J. Miller
Arizona State University (ASU) – Sandra Day O’Connor College of Law
Date Posted: September 29, 2015
Accepted Paper Series
176 downloads
5. Birthright Citizenship on Trial: Elk v. Wilkins and United States v. Wong Kim Ark
Cardozo Law Review, Forthcoming
Bethany Berger
University of Connecticut School of Law
Date Posted: June 01, 2015
Last Revised: October 17, 2015
Accepted Paper Series
168 downloads
6. Plenary Power, Political Questions, and Sovereignty in Indian Affairs
UCLA Law Review, Forthcoming, BYU Law Research Paper No. 15-06
Michalyn Steele
Brigham Young University- J. Reuben Clark Law School
Date Posted: February 15, 2015
Last Revised: July 28, 2015
Accepted Paper Series
145 downloads
7. Justice for All: An Indigenous Community-Based Approach to Restorative Justice in Alaska
Northern Review 38 (2014): 239-268
Brian Jarrett and Polly E. Hyslop
Program on Dispute Resolution – University of Alaska and University of Alaska Fairbanks
Date Posted: March 04, 2015
Accepted Paper Series
140 downloads
8. Federal Reserved Water Rights as a Rule of Law
Idaho Law Review, 2015, Lewis & Clark Law School Legal Studies Research Paper No. 2015-13
Michael C. Blumm
Lewis & Clark Law School
Date Posted: July 26, 2015
Last Revised: September 03, 2015
Accepted Paper Series
136 downloads
9. Everything Old is New Again: Enforcing Tribal Treaty Provisions to Protect Climate Change Threatened Resources
University of Kansas School of Law Working Paper
Elizabeth Ann Kronk Warner
University of Kansas – School of Law
Date Posted: August 30, 2015
Last Revised: October 09, 2015
Working Paper Series
131 downloads
10. Personal Jurisdiction and Tribal Courts after Walden and Bauman: The Inadvertent Impact of Supreme Court Jurisdictional Decisions on Indian Country
Grant Christensen
University of North Dakota – School of Law
Date Posted: September 29, 2015
Working Paper Series
121 downloads
And here are several other papers that did not meet this completely arbitrary cutoff: Continue reading
Judith Royster on Treaty Rights and Tribal Civil Jurisdiction
Judith Royster has posted “Revisiting Montana: Indian Treaty Rights and Tribal Authority Over Nonmembers on Trust Lands,” published in the Arizona Law Review. PDF SSRN
Here is the abstract:
In a series of cases beginning with its 1981 decision in Montana v. United States, the U.S. Supreme Court has diminished the civil authority of Indian tribal governments over nonmembers within the tribes’ territories. Initially, the Court confined itself to hobbling tribes’ inherent sovereign authority over non-tribal members only on non-Indian (“fee”) lands within reservations. In 2001, however, the Court ruled for the first time that a tribe did not possess inherent jurisdiction over a lawsuit against state officers that arose on Indian (“trust”) lands. What that decision, Nevada v. Hicks, means for general tribal authority over nonmembers on Indian lands is not clear, however, and lower federal courts are struggling to interpret it. The primary issue is whether Hicksintended the Montana approach to extend to all nonmembers on trust lands or whether the decision in Hicks is confined to its particular set of facts. That uncertainty could lead to further inroads on the inherent sovereign authority of tribes.
The Court in Montana, however, recognized a second approach to tribal authority over nonmembers on trust land: the tribal treaty right of use and occupation. Although the Court held that those treaty rights are extinguished on fee lands, it agreed that the rights survive on trust lands. This Article argues that the treaty rights argument—that Indian tribes have rights to govern nonmembers on trust lands recognized by treaty and treaty-equivalent—must be resurrected. If inherent tribal authority over nonmembers on trust lands is under increasing judicial attack, tribes may assert their treaty right to govern as a path to ensure their sovereignty on Indian lands.
Turtle Talk 
You must be logged in to post a comment.