Here, by Rob Rosette and Saba Bazzazieh
Arizona State Law Journal Article on Tribal Lending
Here, by Rob Rosette and Saba Bazzazieh
Scholarship
New Scholarship on Carcieri, Patchak, and the HEARTH Act Regulations
Noah Nehemiah Gillespie has published “Preserving Trust: Overruling Carcieri and Patchak While Respecting the Takings Clause” (PDF) in the George Washington Law Review.
Here is the abstract:
The potential benefit of new Bureau of Indian Affairs (“BIA”) regulations for development on Native land has been overshadowed by two recent Supreme Court decisions—Carcieri v. Salazar and Match-E-Be-Nash-She- Wish Band of Pottawatomi Indians v. Patchak—which cast doubt on the title to Native land and dramatically expand the rights of nearby owners to sue by challenging Native use of that land under the Administrative Procedure Act (“APA”). Legislation that would amend the statutes the Court interpreted in Carcieri and Patchak could remedy these ill effects but would pose a new problem: the taking of a vested cause of action without just compensation.
This Essay proposes that Congress enact appropriate legislation that both overrules the Court’s interpretations of the relevant statutes and permits takings suits in place of suits under the APA, so that Native land remains securely under Native control. In addition, the BIA must harness the agency deference it deserves to set Native sovereignty at the center of federal Indian policy.
Elizabeth Warner on Tribal Environmental Law
Elizabeth Warner has posted “Examining Tribal Environmental Law” on SSRN. Here is the abstract:
Federal environmental law recently celebrated its 40th birthday and much has been said about it in the past four decades. Today, however, little is said about the role the third sovereign, tribal nations, plays in the development of environmental law. Although some scholarship exists regarding the development of tribal environmental law, little is known about the extent to which tribes nationwide have enacted such laws. This article fills that vacuum by taking a first look at how tribal environmental law has developed and exploring the laws of one tribal nation that has enacted several environmental laws. The article also begins the discussion of what may be normative practices in the development of tribal environmental law.
Where the federal government has not pre-empted them, tribes may develop their own tribal environmental laws. The time has never been better for an examination of tribal environmental laws. From a historical perspective, Indian country has been the location of substantial environmental contamination. Today, Indian country possesses a substantial potential for natural resource development. Additionally, two recently enacted federal laws, the Indian Tribal Energy Development and Self-Determination Act of 2005 (specifically the Tribal Energy Resource Agreement or TERA provisions) and the Helping Expedite and Advance Responsible Tribal Homeownership Act (HEARTH Act), may spur development of tribal environmental laws. To take advantage of “streamlined” development provisions under both the TERA provisions and HEARTH Act, tribes must develop certain environmental review provisions. These factors in combination with the fact that the environment plays an important cultural and spiritual role for many tribal communities mean that now is an optimum time to consider tribal environmental law.
To start this important discussion on existing tribal environmental law, the article begins in Part II with an introduction to environmental law that is applicable in Indian country, establishing a foundation from which to explore the development of tribal environmental law. Next, in Part III, the article examines facts that may drive the development of tribal environmental law today. In addition to the fact that many tribes have historically faced substantial environmental contamination, modern factors likely to impact most tribal nations include the promotion of tribal sovereignty and also the need to respond to emerging environmental concerns. The article next describes and classifies the laws of 74 federally recognized tribes, highlighting environmental laws the tribes have enacted. This portion of the article concludes that a significant number of federally recognized tribes have no publically available tribal environmental laws. In light of this finding, Part V examines the existing laws of one tribal nation, the Navajo Nation, which has actively developed its tribal environmental laws. Moreover, Part V also begins the discussion of what may be norms for the development of tribal environmental law in the future. In this regard, this article establishes the foundation for the development of a robust examination of tribal environmental law.
Alex Pearl on Maximizing Welfare and Efficiency Through Informal Norms in Indian Law
M. Alexander Pearl has posted “Of ‘Texans’ and ‘Custers’: Maximizing Welfare and Efficiency Through Informal Norms,” forthcoming in the Roger Williams University Law Review, on SSRN.
Here is the abstract:
Professor Robert Ellickson (Yale) theorized that the informal norms of a close-knit community maximize aggregate welfare and Professor Barak Richman (Duke) identified two distinct types of private ordering systems: “shadow of law” and “order without law.” Under the Ellickson-Richman structure, many Indian tribes qualify as close-knit groups where informal norms effectively operate. The additional trait of isolation — both geographic and cultural — makes them ideal communities for the prioritization of informal norms. The imposition of external law, such as state law, is harmful and unnecessary to the maintenance of order in these communities. Recent legislative efforts to ameliorate criminal problems in Indian Country miss the mark and an alternative solution prioritizing the operation of informal norms and private ordering should prevail over application of external law and structures.
This article expands upon Ellickson’s assessment of how social behavior is affected by law and other forces, such as the informal norms in a given social group. Part I explains Ellickson’s theory and analyzes other important contributions made by other scholars. Part II discusses the taxonomy of historical and current examples of communities utilizing informal norms, or private law based mechanisms, to resolve disputes and how efficient results that maximize welfare (as defined by the community) are achieved. Part III, addresses the question of whether government law enforcement interferes with the close-knit community to an extent great enough to diminish the efficacy, or existence, of operative informal norms. Part IV examines anthropological sources to argue that the unique attributes of various Indian tribes and tribal communities warrant definition as the type of close-knit communities contemplated under Ellickson’s theory. Part V explains why the informal norms of certain tribal communities should be allowed to operate without interference from outside legal forces (Custers). Finally, Part VI looks at the relevant provisions in the recently passed Tribal Law and Order Act of 2010 and asks whether they effectively address the criminal justice issues facing Indian tribes subject to State criminal jurisdiction.
New Study on Eagle Mortalities at Wind Energy Facilities
This study, collected by United States Fish and Wildlife Service employees, was published in the Journal of Raptor Research.
Here:
Law Article Comparing Indigenous Rights in the U.S. and Canada
Here. (pdf) Published in the McGill Law Journal.
By former ILPC Fellow and current VA Tribal Government Relations Specialist (and sometimes Canadian correspondent to Turtle Talk), Peter Vicaire.
New Scholarship on Major Crimes Act Prosecutions, Tribal Sovereignty, and Jury Vicinage & Venue Selection
Shannon Rogers has published “Comment: Giving Meaning to Empty Words: Promoting Tribal Self-Governance by Narrowing the Scope of Jury Vicinage and Venue Selection in MCA Adjudications” in the Wyoming Law Review.
An excerpt:
A practical step to solving the federal-tribal disconnect and involving the Indian community is to narrow the MCA adjudication procedures. As discussed below, the MCA, unlike any other criminal statute, explicitly draws geographic and racial-political boundaries. The adjudication process, through venue and jury venire selection reform, needs to be limited in consideration of the MCA’s constraints. This comment discusses two proposals for modifying MCA adjudications to better involve the Indian community: (1) moving the venue for MCA adjudications closer to the Indian community, and (2) shrinking the jury venire used. To exemplify these proposals, the discussion herein focuses on Wyoming because the state geography, proximity of the federal courts to the reservation, and tribal population provide a perfect case study for general issues faced in MCA prosecutions. The ultimate intent of this comment is to highlight the practical implications of ignoring venue problems and the over-inclusion of non-Indians in MCA adjudications. In doing so, the proposals presented in this comment will help further the federal government’s policy of self-governance for tribes.
Gingold and Pearl: Tribute to Eloise Cobell
Dennis M. Gingold and M. Alexander Lowther (Pearl) have published “A Tribute to Eloise Cobell” in the Public Land & Resources Law Review.
The abstract:
Cobell v. Salazar, the landmark class-action case, and its settlement arise out of a painful period in American history. For more than a century, the government’s abuse of individual Indian trust beneficiaries has been documented in various government reports and has been debated in Congress, but nothing that Congress did or said stopped egregious breaches of trust committed by the executive branch. The United States Court of Appeals for the D.C. Circuit noted that “[t]he General Accounting Office, Interior Department Inspector General, and Office of Management and Budget, among others, have all condemned the mismanagement of the Individual Indian Money trust accounts over the past twenty years.” Indeed, the government exploited the Individual Indian Trust as if those funds were its own, wholly disregarding both its statutory and common law trust obligations and the needs and interests of hundreds of thousands of impoverished Indians.
No one did anything to stop that abuse until Elouise Cobell stood up and told the government, “no more.” This Article relates the actions in equity taken by Elouise Cobell to compel the United States to conduct a full historical accounting of all IIM Trust funds, to correct and restate IIM account balances, to fix broken Trust management systems, and to undertake other critical trust reform measures to ensure prudent Trust Management, and examines its remarkable achievements.
Sanders on Genomic Research in Indian Country
Marren Sanders has posted “Genomic Research in Indian Country: The New Road to Termination?” on SSRN.
The abstract:
Genomic science has generated controversy in the social, legal, and ethical arenas for decades, and indigenous populations continue to be a subject of great interest in this area. This article looks at the recent concept of population genomics, a biotechnology used to help scientists understand how genetic variation relates to human health and evolutionary history. Parts II and III examine the debate among scientists as to the migration of the “first Americans” into North America, a debate that is quickly being influenced by the DNA markers found in the human genome. Part IV surveys the history of scientific research involving indigenous peoples – a history predominantly colored by ignorance and bias – as science was presented as conclusive proof of their savage nature and inferiority as a race. Scientists today proffer evidence that the ancestors of Native Americans were, in reality, colonists who immigrated from Africa, Europe, and/or Asia, and Part V analyzes a number of indicators that point to the possibility of genomic research providing justification for another termination of the special status and rights of Native Americans. Part VI looks at a number of tools that tribes may wish to consider using to help protect the genetic information of their members as they are faced with the seemingly endless need of researchers for Native American DNA. The article concludes that while suppositions of geneticists are in actuality just theories of historic migration, these theories have gained acceptance as fact in mainstream society. Given current indicators, Congress and/or the courts may very well use genomic science to justify another termination of the federal/tribal trust relationship.
Lynn & Whyte: “Indigenous Peoples, Climate Change and the Government-to-Government Relationship”
Kathy Lynn and Kyle Powys Whyte have posted “Indigenous Peoples, Climate Change and the Government-to-Government Relationship” on SSRN. Here is the abstract:
Climate change impacts present indigenous peoples with distinct challenges, from the loss of species needed for subsistence practices like fishing and plant gathering, to coastal erosion that may force some communities to migrate away from areas they have inhabited or used for many years. Students, activists, environmental managers, scholars and corporate and political leaders of all heritages should be aware of how indigenous peoples must address climate change impacts from global to community-level scales, and the obstacles they may encounter due to intersecting oppressions, like cultural imperialism and disempowerment. To create such awareness, there is a need for more work that describes the specific sites of interaction relevant to indigenous peoples and climate change. Sites of interaction are the local and regional places where indigenous peoples are in relationships with governments, non-governmental organizations (NGOs), networks and alliances. Better understanding the relationships that indigenous peoples have with these groups and institutions contributes to fostering unique and necessary indigenous approaches to address climate change that reflect their unique cultural connections to the earth. This paper focuses on one of the critical sites of interaction for indigenous peoples in the United States — the government-to-government relationship. While the government-to-government relation is not a new approach, this paper examines how it might operate in indigenous climate change adaptation contexts in the United States. We describe a set of examples of consultation and collaboration and offer seven recommendations that demonstrate the value of tribal responses to climate change.
Turtle Talk 
You must be logged in to post a comment.