Douglas P. Thompson, Jason Decker, Torivio A. Fodder, Gavin M. Ratcliffe, Michael J. Dockry, Ben Benoit, and Christopher Murray, have published “Opportunities for Reconciliation: The Legal History of the Leech Lake Indian Reservation and the Chippewa National Forest” in the Mitchell Hamline Law Review.
Here is the abstract (painting):
Lauren van Schilfgaarde has posted “Native Reproductive Self-Determination,” forthcoming in the UCLA Law Review, on SSRN. Here is the abstract:
Like the overall well-being of Indigenous peoples, Native reproductive health has been deeply impacted by the direct and collateral consequences of settler colonialism. Today, Natives experience some of the most dire reproductive health disparities. Unlike other health care systems, however, Native health care is sui generis. The federal government has treaty, trust, and statutory obligations to provide Native Americans with health care, most prominently operationalized in the Indian Health Service (IHS). Unfortunately, the perpetual underfunded status of IHS coupled with draconian policies has meant that Native reproductive health is dismally served. Moreover, reproductive health tends to be exceptionalized—treated as a distinct component of health care that is often underprioritized or even entirely cut. But even if the IHS budget was instantly enhanced and even if reproductive health care was instantly prioritized across health systems, Native reproductive health care would still lack its most essential ingredient: self-determination.
The term “self-determination” has grown significant national and international meaning, both in relation to Tribes and reproductive justice. Native reproductive self-determination, however, remains an undertheorized confluence. Indigenous reproductive health was only explicitly acknowledged by an international body in 2022, General Recommendation 39 issued by the Committee on the Elimination of Discrimination Against Women (CEDAW) regarding Indigenous women and girls. General Recommendation 39 acknowledges both the collective rights of Indigenous peoples to exist as a self-determined people and the unique vulnerability of Indigenous women and girls. This framework offers an important and expansive conceptualization of the federal duties owed to Native reproductive self-determination and a path out of the paternalistic and harmful logics that have historically formed Native reproductive health care. Indigenous rights must be positioned within a historical context to inform not just the rights of Indigenous peoples to be recognized and to self-govern but also to stress the positive obligations that the nation-state owes toward Indigenous peoples. A historical context that informs the nation state’s positive obligations are themselves background to the realization of a self-determined collective—in this case, to ensure Native reproductive self-determination.
Here.
Abstract:
For too long, tribal judiciaries have been an afterthought in the story of tribal self-determination. Until the last half-century, many tribal nations relied on federally administered courts or had no court systems at all. As tribal nations continue to develop their law-enforcement and police powers, tribal justice systems now play a critical role in tribal self-determination. But because tribal codes and constitutions tend to borrow extensively from federal and state law, tribal judges find themselves forced to apply and enforce laws that are poor cultural fits for Indian communities—an unfortunate reality that hampers tribal judges’ ability to regulate and improve tribal governance.
Even where tribal legislatures leave room for tribal judges to apply tribal customary law, the results are haphazard at best. This Article surveys a sample of tribal-court decisions that have used customary law to regulate tribal governance. Tribal judges have interpreted customary law when it is expressly incorporated into tribal positive law, they have looked to customary law to provide substantive rules of decision, and they have relied on customary law as an interpretive tool. Reliance on customary law is ascendant, but still rare, in tribal courts.
Recognizing that Indian country will continue to rely on borrowed laws, and aiming to empower tribal courts to advance tribal governance, this Article proposes that tribal judges adopt an Indigenous canon of construction of tribal laws. Elevating a thirty-year-old taxonomy first articulated by Chief Justice Irvin in Stepetin v. Nisqually Indian Community, this Article recommends that tribal judges seek out and apply tribal customary law in cases where (1) the relevant doctrine arose in federal or state statutes or common law; (2) the tribal nation has not explicitly adopted federal or state law on a given issue in writing; (3) written tribal law was adopted or shifted as a result of the colonizer’s pressure and interests; and (4) tribal custom is inconsistent with the written tribal law, most especially if the law violates the relational philosophies of that tribal nation. Tribal judiciaries experienced at applying tribal customary law will be better positioned to do justice in Indian country.
The Yale Law Journal plans to reopen its submissions portal for Articles & Essays on Saturday, February 1.
Submissions guidelines and portal can be found here. Any questions you might receive about the submission process can be referred to our Managing Editors, Ako Ndefo-Haven (ako.ndefo-haven@yale.edu) and Matt Beattie-Callahan (matt.beattie-callahan@yale.edu).
The Texas Journal of Civil Rights and Civil Liberties is seeking articles from legal scholars, practitioners, or individuals with unique expertise on legal issues pertaining to Indigenous Rights for our spring special issue. If you have any articles on Indigenous issues, please submit them to us via scholastica or to this email (tjclcrsubmissions@gmail.com). Feel free to forward this to any colleagues that may also be interested! Article length can vary (typically from 30-60 pages) and so can topics. Any questions or concerns can also be sent to the TJCLCR submissions editor at this email: tjclcrsubmissions@gmail.com.
Kekek Jason Stark has published “Gwayak Ateg Onaakonigewi Dibenjigewin: Decolonizing Jurisdiction in Anishinaabe Tribal Courts” in the Nebraska Law Review.
Here is the abstract:
It is generally understood as a matter of federal Indian law that determinations of tribal law should properly be interpreted by tribal courts. This is because tribal courts do not always adhere to the same legal philosophy as their settler colonial counterparts. Many tribal courts subscribe to traditional law, which is an “essential source” of tribal jurisprudence. Anishinaabe communities have maintained a rich body of traditional tribal law since time immemorial. However, these customary law principles are only recently being included in modern-day Anishinaabe tribal court determinations. This Article builds upon the Anishinaabe law principles articulated in recent opinions and provides an overview of Anishinaabe tribal court jurisdictional cases in analyzing the efficacy of Anishinaabe customary law. Part I provides a brief introduction. Part II provides an overview of traditional Anishinaabe governance. Part III provides an overview of federal law that has been forced upon Anishinaabe communities in an attempt to further the colonizing project of assimilation. Part IV examines the principles of Anishinaabe jurisdiction. In doing so, this Article sets out traditional Anishinaabe law principles of jurisdiction as an example of how Anishinaabe Tribal Nations can define their own interpretations of law and jurisdiction. Part V analyzes how the principles of traditional Anishinaabe law are being balanced with the principles of federal Indian law under Montana and its progeny in Anishinaabe jurisdictional cases. The final Part shows that Anishinaabe tribal courts should be proactive and utilize Anishinaabe customary law in the recognition of their sovereignty apart from the federal courts’ articulations of tribal court jurisdiction. As provided in this Article, Anishinaabe tribal courts have the opportunity to define tribal jurisdiction from a tribal perspective in their tribal court opinions. For a tribal court to properly maintain its tribal character while adapting to the Anglo system of jurisprudence, it must build the system upon tribal concepts. In doing so, Anishinaabe tribal courts can ensure that their analysis remains Anishinaabe in character furthering tribal self-government and self-determination, and that its opinions are not being colonized by federal court determinations of tribal customary principles. In this way, Anishinaabe tribal courts will be able to fully implement the principles embedded in gwayak ateg onaakonigewi dibenjigewin.
Highly recommended!
Alejandro E. Camacho, Elizabeth Kronk Warner, Jason McLachlan & Nathan Kroeze have published “Adapting Conservation Governance Under Climate Change: Lessons from Indian Country” in the Virginia Law Review. PDF
Here is the abstract:
Anthropogenic climate change is increasingly causing disruptions to ecological communities upon which Natives have relied for millennia. These disruptions raise existential threats not only to ecosystems but to Native communities. Yet no analysis has carefully explored how climate change is affecting the governance of tribal ecological lands. This Article, by examining the current legal adaptive capacity to manage the effects of ecological change on tribal lands, closes this scholarly and policy gap.
This Article first considers interventions to date, finding them to be lacking in even assessing—let alone addressing—climate risks to tribal ecosystem governance. It then carefully explores how climate change raises distinctive risks and advantages to tribal governance as compared to federal and state approaches. Relying in part on a review of publicly available tribal plans, this Article details how tribal adaptation planning to date has fared.
Focusing on climate change and ecological adaptation, this Article delves into the substantive, procedural, and structural aspects of tribal governance. Substantively, tribal governance often tends to be considerably less wedded to conservation goals and strategies that rely on “natural” preservation, and many tribes focus less on maximizing yield in favor of more flexible objectives that may be more congruent with adaptation. Procedurally, like other authorities, many tribal governments could better integrate adaptive management and meaningful public participation into adaptation processes, yet some tribes serve as exemplars for doing so (as well as for integrating traditional ecological knowledge with Western science). Structurally, tribal ecological land governance should not only continue to tap the advantages of decentralized tribal authority but also complement it through more robust (1) federal roles in funding and information dissemination and (2) intergovernmental coordination, assuming other governments will respect tribal sovereignty. This Article concludes by identifying areas where tribal management practices might serve as valuable exemplars for adaptation governance more generally, as well as areas in which additional work would be helpful.
Kirsten Matoy Carlson has published “Justice Beyond the State” in the Alaska Law Review. PDF
Abstract:
For decades the intersectionality of extreme rurality and cultural difference has led scholars and tribal leaders to advocate for recognition of local authority as a solution to the justice gap in rural Alaska. Local control often means developing courts in and extending jurisdiction to Alaska Native villages. This Article evaluates strengthening tribal courts or justice systems through restorations of jurisdiction as a way to address access to justice issues in Alaska Native villages. It argues that restorations of jurisdiction and the development of tribal justice systems must ensure that Alaska Natives define the justice provided in their communities. Restorations of jurisdiction that require Alaska Native villages to replace their traditions and laws with adversarial processes and values threaten to undermine access to justice.
Kekek Jason Stark has published “Exercising the Right of Self-Rule: Tribal Constitutions and Tribal Customary Law” in the Mitchell Hamline Law Review. PDF
Here is an excerpt:
In the context of the development and implementation of Tribal constitutions, Tribal Nations must ask themselves whether the federal government was playing a trick on Tribal Nations by imposing the Indian Reorganization Act (IRA) and its corresponding constitutions and Anglo-American governing principles upon Indian country. Are these documents and corresponding governing principles actually “shit,” dressed up as “smart berries” under the guise of making Tribal Nations “wise” in the image of Anglo-American law? Ninety years after the enactment of the IRA, it is time Tribal Nations become wise and return to traditional constitutional principles based on Tribal customary law and unwritten, ancient Tribal constitutions.
As always with KJS, highly recommended.
Here:
Announcing the 2024-2025 American Indian Law Review National Writing Competition
This year’s American Indian Law Review national writing competition is now welcoming papers from students at accredited law schools in the United States and Canada. Papers will be accepted on any legal issue specifically concerning American Indians or other indigenous peoples. Three cash prizes will be awarded: $1,500 for first place, $750 for second place, and $400 for third place. Each of the three winning authors will also be awarded an eBook copy of Cohen’s Handbook of Federal Indian Law, provided by LexisNexis.
The deadline for entries is Friday, February 28, 2025, at 6 p.m. Eastern Standard Time.
Sponsored by the University of Oklahoma College of Law, the American Indian Law Review has proudly served Native and legal communities since 1973. Each year at this time we encourage law students nationwide to participate in this, the longest-running competition of its kind. Papers will be judged by a panel of Indian law scholars and by the editors of the Review.
For further information on eligibility, entry requirements, and judging criteria, see the attached PDF rules sheet or the AILR writing competition website at https://law.ou.edu/ailr/wc.
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