This paper will survey the history of tribal courts, which allows for an explanation for the reasons behind the relatively minimal impact tribal courts have had on Indian country governance, drawing on the work of Rob Porter. The paper will then turn to the monumental changes in tribal judiciaries and in tribal legal practice of the last few decades, which in turn allows for a discussion about several recent tribal court decisions that could signal a future where tribal courts play a far greater role in regulating Indian country governance through the application of customary law, drawing on the work of Wenona Singel. Finally, the paper offers preliminary thoughts on whether adding robust tribal judicial regulation to an already crowded field of Indian country governance is normatively beneficial. Short answer? Yes. Many of the intractable political disputes that plague tribal governance can be traced to the reliance by tribal governments on state and federal legal principles that are deeply flawed and have limited value in Indigenous contexts. I suggest the acknowledgment of an Indigenous Canon of Construction of tribal laws by tribal judiciaries that limit the impact of colonization on tribal nations.
For more than a century, the United States has sought to restrict Tribal governments’ powers over criminal law. These interventions have ranged from the imposition of federal jurisdiction over Indian country crimes to actively dismantling Tribal justice systems. Two particular moves – diminishing Tribal jurisdiction and imposing adversarial approaches on Tribal courts, respectively – have had particularly devastating impacts on Tribal justice and criminal governance systems. In the contemporary era, these developments have severely constrained Tribal approaches to criminal justice reform. Yet in recent years, we’ve begun to witness new trends at the Tribal level. Tribes are increasingly embracing Indigenous-based, restorative justice models, which have regenerated Tribal jurisdiction and enhanced the wellbeing of Tribal members. These trends are both important in their own right, and as an example of Indigenous anti-subordination in criminal justice reform. Indeed, for Tribes, the leading contemporary response to historical oppression is collective “self-determination.” True self-determination requires both internal and external legitimacy. As Tribes pursue freedom from settler-colonial constraints, this Article reveals how restorative justice offers opportunities to “Indigenize” Tribal systems while also reclaiming jurisdictional powers, for the benefit of Tribes and Tribal members, alike.
Indian tribes have some freedom to develop their own approach to cannabis agriculture, but what is the nature of that freedom, and how have tribes acted upon it? This Article investigates the current legal framework surrounding tribal cannabis agriculture and tribal participation in legal cannabis markets. It is generally believed that tribes have some freedom to determine the legality of cannabis cultivation on their lands, and to create rules and regulations governing that practice. However, this freedom is nascent and inconsistently granted by the federal government. In addition, the legal frameworks tribes are developing with respect to cannabis agriculture are still evolving and poorly understood, since each tribe is free to craft their own unique approach to the cannabis industry. This Article examines the current tribal cannabis agriculture landscape in several ways. First, a big-picture snapshot of the U.S. cannabis industry in 2023 is provided in order to place tribal cannabis policies in an appropriate context. Second, the Article attempts to discern the federal government’s opaque perspective on tribal cannabis law, including the contours of tribal freedom to self-regulate in this area. Third, the Article identifies trends and approaches to tribal cannabis agriculture that have emerged to date, with examples of cannabis policies from tribes around the country. Finally, a case study of the Hoopa Valley Tribe is presented in order to bring to life the legal complexities of this topic.
Indigenous Peoples across the world are calling on nation-states to “decolonize” laws, structures, and institutions that negatively impact them. Though the claims are broad based, there is a growing global emphasis on issues pertaining to Indigenous Peoples’ cultural property and the harms of cultural appropriation, with calls for redress increasingly framed in the language of human rights. Over the last decade, Native people have actively fought to defend their cultural property. The Navajo Nation sued Urban Outfitters to stop the sale of “Navajo panties,” the Quileute Tribe sought to enjoin Nordstrom’s marketing of “Quileute Chokers,” and the descendants of Tasunke Witko battled to end production of “Crazy Horse Malt Liquor.” And today, Indigenous Peoples are fighting to preserve sacred ceremonies and religious practices at places like Standing Rock, Oak Flat, and Bear’s Ears. Though the claims range from “lands to brands,” these conflicts are connected by a common thread: they are all contemporary examples of Indigenous Peoples’ efforts to protect their cultural property. As issues surrounding cultural property play out on the global stage, there is a parallel movement underway within Indigenous communities themselves. More than fifteen years ago, in 2005, I conducted a comprehensive study of tribal law to understand what American Indian tribes were doing to protect their own cultural property within tribal legal systems. Since my original study, the ground around issues of cultural preservation and Indigenous rights—including the 2007 adoption of the United Nations Declaration on the Rights of Indigenous Peoples, among others— have reignited interest in Indigenous Peoples’ own laws. Inspired by a convergence of global events impacting cultural rights, in 2020 and 2021, I set out to update my survey results and analyze the tribal cultural preservation systems and tribal laws of all 574 federally recognized American Indian tribes and Alaskan Native Villages in the United States. This Article reports those findings, situating the results in a human rights framework and leading to a core, central thesis: the data reveal a striking increase in the development of tribal cultural property laws, as Indian tribes seek to advance human and cultural rights in innovative and inspired ways. Indeed, in this Article, I contend we are witnessing a new jurisgenerative moment today in the cultural property arena, with tribal law already influencing decisionmakers at multiple ‘sites’—international, national, and subnational—in real time, with great potential for the future. To further demonstrate this phenomenon, I highlight the case study of the recent agreement to repatriate the Maaso Kova, a ceremonial deer head, from Sweden to the Yaqui peoples, and I also introduce several other examples where the seeds have been planted for the growth of the next jurisgenerative moment in Indigenous cultural property rights.
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