Fletcher’s April Fool’s Day Visit to Yale, Courtesy of the YLJ
Scholarship
New Student Scholarship on Tribal Disenrollments
John K. Crawford (Forest County Potawatomi) has published “Disenrollment as Citizenship Revocation: Promoting Tribal Sovereignty by Embracing International Norms” in the Yale Law Journal.
Here is the abstract:
This Note argues that Indian tribes can best address disenrollment by viewing the problem through the lens of international norms regarding citizenship revocation. Tribal officials and members, advocates and journalists, and scholars and practitioners of federal Indian law typically understand disenrollment, which is when a tribe severs its governmental relationship with certain members, as a practice unique to Indian Country. However, while tribes’ unique legal status facilitates disenrollment, this practice can nevertheless be understood as a form of citizenship revocation, which is when a state deprives certain persons of their previously held citizenship. By understanding disenrollment as citizenship revocation, tribes can draw from a wide body of existing literature about states’ citizenship-revocation regimes when considering limitations on their power to disenroll. If tribes choose to address disenrollment by embracing international norms regarding citizenship revocation, they will not simply invoke tribal sovereignty, as sometimes occurs under the current status quo, but instead promote it by advancing good governance and aligning their sovereignty with state sovereignty.
New Book: “Beyond Blood Quantum: Refusal to Disappear”
Jason Robison on Yellowstone River
Jason Robison has posted “Equity Along the Yellowstone,” published in the University of Colorado Law Review, on SSRN.
Here is the abstract:
As one of three major rivers with headwaters in the sublime Greater Yellowstone Ecosystem, the Yellowstone and its tributaries are subject to an interstate compact (a.k.a. “domestic water treaty”) litigated from 2007 to 2018 in the U.S. Supreme Court in Montana v. Wyoming. Four tribal nations exist within the 71,000 square‑mile Yellowstone River Basin: the Crow, Eastern Shoshone, Northern Arapaho, and Northern Cheyenne. Yet, the Yellowstone River Compact, ratified in 1951, more than a decade before the self‑determination era of federal Indian policy began, neither affords these tribal sovereigns representation on the Yellowstone River Compact Commission nor clearly addresses the status of their water rights within (or outside) the compact’s apportionment. Such marginalization is systemic across Western water compacts. Devised as alternatives to original actions for equitable apportionment before the U.S. Supreme Court, this Article focuses on the Yellowstone River Compact and its stated purpose of “equitable division and apportionment,” reconsidering the meaning of “equity,” procedurally and substantively, from a present‑day perspective more than a half‑century into the self‑determination era. Equity is a pervasive and venerable norm for transboundary water law and policy contends the Article, and equity indeed should be realized along the Yellowstone in coming years, both by affording the basin tribes opportunities to be represented alongside their federal and state co‑sovereigns on the Yellowstone River Compact Commission, as well as by clarifying the status of and protecting the basin tribes’ water rights under the compact’s apportionment.
American Indian Law Review, Vol. 48, Issue 2
Here:
How Poor Is Poor Enough? How Jurisdictional Differences in Implementing the Right to Counsel Affect Indigent Native Americans
J. Santana Spangler-Day
Benefit Corporations—A Tool for Economic Development and Fostering Sovereignty in Tribal Business Structures
Madelynn M. Dancer
Notes
Oklahoma v. Castro-Huerta—Using Sentencing Inequities to Address the Oliphant in the Room
Dillon M. Sullivan
Special Feature
A Tribal Court Blueprint for the Choctaw Freedmen: Effect of Cherokee Nation v. Nash
LeeAnn Littlejohn
John Beaty on Tribal Eminent Domain
John Beaty has published “Tribal Eminent Domain: Sovereignty Gaps and Policy Solutions” in the New Mexico Law Review. PDF
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.
Grant Christensen on Article IV: The New-ish Hope
Grant Christensen has published “Article IV and Indian Tribes” in the Iowa Law Review (PDF). Here is the abstract:
Unlike the first three articles of the Constitution which create the three branches of the federal government and articulate their limited powers, Article IV establishes a set of rules to police the actions of states and knit them together into a single union. Notably absent from Article IV is any mention of the tribal sovereign. Concomitantly, there has been no comprehensive academic discussion addressing how the tribal sovereign complicates the purposes of Article IV. This piece advances a completely new understanding of Article IV and its implications in federal Indian law. It argues that where Article IV advances rights to individual citizens (i.e., a citizen’s right to enforce a court judgment or their claim to the protection of the Privileges and Immunities Clause) then states may not use an individual’s connection to any tribal sovereign as an excuse to deny them the protections of those rights. In contrast, where Article IV speaks to rules designed to ensure states treat each other respectfully (i.e., requests for extradition, claims under the Equal Footing Doctrine, or any attempt to enforce the Guarantee Clause) then Article IV’s rules do not permit states to abridge, abrogate, modify, or erode the inherent rights of tribal nations. As the Court has recently opined, tribal governments themselves were absent from the Constitutional Convention and so constitutional limitations on the inherent powers of state sovereigns do not extend to tribal governments.
Texas Journal of Civil Rights and Civil Liberties Seeks Indian Law Paper [they have a spot left!]
Here:
The Texas Journal of Civil Rights and Civil Liberties is seeking a final article for our spring special issue on Indigenous Rights. Articles from legal scholars, practitioners, or individuals with unique expertise on legal issues pertaining to Indigenous Rights are all welcome. If you have any articles on Indigenous issues, please submit them to us via scholastica or to this email (tjclcrsubmissions@gmail.com). Article length can vary (typically from 30-60 pages) and so can topics. Our priority deadline for submissions is February 20, and we will consider submissions after this only if we have still not found our final piece. Any questions or concerns can also be sent to the TJCLCR submissions editor at this email: tjclcrsubmissions@gmail.com.
van Schilfgaarde on Tribal Cultural Heritage
Lauren van Schilfgaarde has posted “American Cultural Heritage’s Embrace of Tribal Cultural Heritage,” published in the Kansas Journal of Law and Public Policy, on SSRN.
Here is the abstract:
Historically, Tribal cultural heritage has been conceptualized as fundamentally distinct from American cultural heritage. Consequently, Tribal cultural heritage has received only piecemeal protection under the typical American cultural heritage law framework. However, as Tribal advocates have pressed for protections of Tribal cultural heritage, they have influenced the ways in which American cultural heritage law is interpreted and implemented. There has been accordingly, a recent shift in how American cultural heritage law values and identifies Tribal cultural heritage law as fundamentally American— and with it, a promising embrace of Indigenous rights. This essay will explore that shift, noting two of the most recent developments—the 2023 NAGPRA regulations and the STOP Act of 2021, and the need for more institutionalized protection, predominately protections for confidentiality.
Study of South Dakota Indian Country Lawyers
Bryce Drapeaux & Hannah Haksgaard have published Indian Country Lawyers: A South Dakota Survey in the South Dakota Law Review.
Here is an abstract representation of South Dakota:
Turtle Talk 
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