The land-back movement in its current state began in 2018 and has rapidly gained traction since. The main call in this movement is for the return of government owned ancestral lands to their Indigenous stewards. This paper quantifies the economic impacts of land-back movements on income and employment for over 1,700 Indigenous communities, using both panel data instrumental variables and endogenous treatment techniques. We find uniformly promising results (reductions in the percentage of citizens living on low incomes, and reductions in the unemployment rate) that recommend continued return of tribal lands not only for racial justice reasons, but as a catalyst for economic stability of populations living in proximity to Indigenous peoples.
Grant Christensen has posted “Tribal Judicial Power,” forthcoming in the University of Southern California Law Review, on SSRN.
Here is the abstract:
In 1978’s Oliphant v. Suquamish Indian Tribe the Supreme Court announced a new common law rule: tribal courts lack criminal jurisdiction over non-Indian defendants. Under the guide of the common law, unmoored from interpreting the text of any treaty or statute, the Oliphant opinion made reservation communities less safe by denying tribal governments a critically important tool in law enforcement – the power to arrest, charge, prosecute, and sentence persons who commit crimes on tribal lands. This unilateral evisceration of an inherent tribal power has contributed directly to the crisis of missing and murdered Indigenous women in the United States by preventing tribal law enforcement from prosecuting non-Indian offenders. The Oliphant precedent has made Indian country less safe for everyone by hobbling the ability of tribal governments to criminally convict non-Indians who openly violate tribal law.
In 2004 the Court made its first concession to the absolutist approach taken in Oliphant by recognizing that its decisions limiting the scope of the inherent power of Indian tribes were not constitutionally mandated but rather reflected the understanding of the Court “at the time of those decisions.” It is a new day, and the Court’s understanding of inherent tribal power can evolve. It can remove the common law barrier preventing tribes from exercising their pre-constitutional powers.
This Article takes the position that Congress’s reauthorization of the Violence Against Women Act in 2022 is the death knell of the Oliphant opinion and a congressional restoration of tribal judicial power. The gossamer strands of the Court’s 1978 reasoning can no longer survive even cursory review in an era when Congress has given its imprimatur upon both inherent tribal power and tribal court criminal jurisdiction over non-Indian defendants. Oliphant was never a constitutional nor statutory barrier to the assertion of inherent tribal power, and it should not take an act of Congress to reverse. As non-Indians again contest their criminal prosecution in tribal courts under the expanded powers recognized in VAWA, federal courts should reconsider the common law rule announced almost fifty years ago and, consistent with the direction of legal and congressional precedent, make clear that Oliphant no longer accurately reflects American common law.
Rosalind McClanahan was just twenty-two when she set one of the most important cases in federal Indian law into motion. On April 1, 1968, she filed her Arizona tax return, along with a protest that all the money withheld from her pay—$16.29—should be refunded because she was a Navajo citizen whose income was earned entirely on the Navajo reservation. The Arizona Tax Commission ignored her claim and the Arizona courts rejected it. But the Supreme Court ruled unanimously in her favor, building a foundation for many more decisions rebuffing state jurisdiction as well as landmark legislation such as the Indian Child Welfare Act and Indian Gaming Regulatory Act. This Essay, the first full history of McClanahan, examines the origins of the decision as part of the Kansas Law Review’s symposium on impact litigation in Indian country.
Rosalind McClanahan was born in an era of renewed pressure for Indian assimilation but came of age as tribes and Indigenous people increasingly insisted on self-determination. This moment had a direct influence on her case: her education at Window Rock High School (where she was elected Class Treasurer) resulted from new pathways to challenge Indian exclusion from public schools; her employer was the First Navajo National Bank, which opened in 1962 as the first bank on the 16-million-acre Navajo Nation; and her lawyers came from Diné be’iiná Náhiiłna be Agha’diit’ahii-Legal Services (shortened to “DNA”), which the Navajo Nation brought to the reservation as part of a new wave of federally funded organizations providing legal services to the poor. Each of these developments shaped both the decision and its impact.
I really enjoyed this article, especially the origin story of the DNA-People’s Legal Services. Recommended!!
For the better part of two centuries, the cornerstone of federal Indian policy was destabilizing and eradicating tribal governments. In the process, federal Indian policy also dismantled American Indian families via child removal. Attempting to equalize American Indians through the practice of assimilation, decades of Indian child removal policies destroyed Indian families. In 1978, Congress responded to these horrors by passing the Indian Child Welfare Act (ICWA), a revolutionary law that was responsive to its trust responsibility to American Indian Tribes. By providing for the best interests of Indian children, heightened protections for parents of Indian children in certain child custody proceedings, and vesting Tribes with a legally recognizable interest in their children’s futures, Congress issued a referendum on equality for American Indians and the very nature of colonialism.
For nearly fifty years, ICWA has governed certain child custody proceedings involving Indian children in state courts. In 2018, a group of state and private actors decided to challenge ICWA’s constitutionality in Haaland v. Brackeen. Among their claims, these parties alleged that ICWA violated the equal protection rights of potential adoptive parents who are non-Indian and that ICWA placed Indian children at a disadvantage. However, just beneath the surface of these claims lies the real allegation: American Indian children should be available for the “good families” or for the “right kind of families” to adopt them. By claiming American Indians had special rights via ICWA, these plaintiffs hoped to re-introduce a version of equality that allowed generations of federal, state, and individual actors to enact assimilationist policies. Ultimately, the goal of equality in this area remains to ensure that “good families” maintain access to Indian children. Contrary to congressional goals, Indian children remain a commodity in demand for “good families” looking to save Indian children.
Blending family law, federal Indian law, and constitutional law, this Article evaluates the fallacy in applying the Equal Protection Clause to claims about ICWA. In doing so, this Article demonstrates that ICWA contains an anti-colonial equity principle that is contrary to the equal protection doctrine—a doctrine that Congress knew could never apply when the matter came to accessing the rights of American Indian families against those of the settlers, primarily because the rights of American Indian individuals are intricately linked to the federal trust responsibility. This Article argues that given ICWA’s character as an anti-colonial statute, applying the Equal Protection Clause to it will only stand to yield absurd results in furtherance of a colonial project that Congress has abandoned. Instead of the equality the Supreme Court promises through its equal protection doctrine, ICWA’s mandate requires equity.
In 1884, the Supreme Court held that the Fourteenth Amendment’s guarantee of birthright citizenship did not apply to Native Americans. In Elk v. Wilkins, the Court denied John Elk the right to vote on the grounds that he was born a tribal member, not subject to the jurisdiction of the United States, and thus ineligible for citizenship. This Article explores that decision, its context, and its consequences. It considers the radical promise of the Fourteenth Amendment’s text alongside the intentions of its Framers and the expectations of minority litigants. It situates Elk in a transformative period for both federal Indian policy and American federalism. The Article offers several readings of the Elk decision. It explores both the racist paternalism and the respect for tribal sovereignty evident in the Court’s reasoning, as well as the rapid shifts in Indian policy coinciding with Reconstruction. It ultimately argues that Elk v. Wilkins is emblematic of a distinct inflection point in federal Indian law, in which the Court’s formal adherence to longstanding principles of tribal sovereignty could simultaneously service federal assimilationist policy goals and a larger turn to American empire.
HIGHLY RECOMMENDED!! A Frank Pommersheim joint is always worth it.
The abstract:
The amazing legal journey of this case begins in 1923 and ends with a Sioux Nation of Indians “victory” in the Supreme Court in 1980. Before reaching the Supreme Court, the case was litigated four different times before the Court of Claims because of the ineffective assistance of counsel and the necessity of a congressional statute to clear away the threatening ghost of res judicata. The historical backstory begins not in 1923, but with the signing of the Fort Laramie Treaty of 1868 and the United States’ illegal taking of the sacred Black Hills in1877. And the case does not end with the Sioux “victory” before the Supreme Court and its award of “just compensation” for the illegal taking. The Sioux Nation of Indians rejected—and continues to reject—the remedy of financial compensation without an attendant search for mutual repair and a justice that includes some form of land return. Despite some modest examples of land return in other parts of Indian country, no such efforts involve the Black Hills. This article seeks to inform all, but particularly those two generations of Lakota and non-Native citizens born since 1980, that now is the time for renewed effort and commitment to realize reconciliation and a justice that includes land return. This must be done before history closes its door for a second and final time and the Black Hills will remain stranded in historical infamy. No, this article is not just another twist on classic Indian Law principles gone awry, but the first of something we might call the Historical (Trauma) Trilogy of stealing Lakota land (and breaking treaties), suppressing the teaching and learning of the Lakota language and culture, and the battering ram of boarding schools to break-up Lakota families where a core value has always been to be a “good relative.” In its own careful way, this article is also about the persistence of Lakota resistance and the hard work of restoring the (sacred) hoop of land, language, and family for these new days.
Data, as described by a Yurok Tribe council member, is “the original theft”—the first thing stolen from Native peoples in the United States. Indigenous data sovereignty seeks to redress this and prevent future data infractions by placing Indigenous communities in charge of decision-making about their own data. Yet with no established body of federal case law on tribal data authority, it is not immediately clear how Indigenous data sovereignty would fit within the complex and contradictory web of federal caselaw that confines tribes’ inherent sovereignty. This Article seeks to address this gap. First, as a policy matter, it argues that tribes are best suited to govern their own data. To illustrate this claim, this Article relies on interviews conducted with members and employees of the Yurok Tribe, the largest tribe in California, to explain what data sovereignty means to them and why it matters for tribal self-governance, economic security, cultural preservation, and the Tribe’s health and welfare. Second, as a legal matter, this Article lays out the favorable case for tribal authority to enforce tribal data sovereignty laws and policies against non-tribal members under each exception within the Montana framework. In anticipation of concerns about how to locate transient data or placeless activity, this Article proposes that federal and tribal courts use the Calder effects test, which assesses intentional forum-targeting in non-tribal cases. Finally, this Article concludes with a set of recommendations for tribes seeking to actualize their data sovereignty and for federal courts that may review future cases involving data sovereignty.
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.
The federal government of the United States, including federal agencies, owes a trust responsibility to Tribes. The contemporary federal administrative state has given greater authority over agency decisions to the federal judiciary while simultaneously reducing government funding for various agencies’ operations. As a result, it is unclear that the federal government will continue to adhere to its trust responsibility in agency actions. Failure to account for Tribal governments in the current administrative state is a violation of the United States’ duty to Tribes and calls for greater advocacy to ensure the protection of Tribal interests—both in federal agencies and in federal courts.
This bullshit AI art is no reflection on Manny’s great work. (Look at those cheeks!)
Turtle Talk 
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