NARF is currently seeking candidates for its Summer 2014 Clerkships. Each year, NARF conducts a nation-wide search for law students to participate in its Law Clerk Program. Positions are available in all three of NARF’s offices: Anchorage, AK; Boulder, CO; and Washington, D.C.  The deadline to apply is November 1, 2013.  See the flyer with the qualifications and requirements here.

Earlier, Matthew posted Prof. Pommersheim’s new article on the BIA’s fee-to-trust process, which took a broad look at the history of the process and a closer look at its application in South Dakota.

I echo Matthew’s strong recommendation for people to read this article – especially if you encounter the fee-to-trust process in your work.

I was particularly struck by Prof. Pommersheim’s discussion of the amount of land that continues to be taken out of trust.

In my time at the Department of the Interior, we were constantly under pressure to justify the acquisition of land into trust to members of Congress, state and local governments, and the public.  In testimony to congressional committees on this issue, DOI officials consistently noted the extraordinary loss of Indian land during the Allotment period as a justification for putting land into trust under the IRA.  We also recited the economic and jurisdictional benefits of trust acquisitions.  Prof. Pommersheim notes these in his article as well.

But, he also goes further in quantifying the amount of land that continues to move from trust status to fee in this chart:

Prof. Pommersheim adds:

The results are very surprising because in each state considered, especially South Dakota, there is a net gain of land being placed on the tax rolls as opposed to being taken off the tax rolls.  South Dakota’s numbers are particularly revealing in that it appears that at least ten times more [Indian] land has gone onto the tax rolls between 2000 and 2012 than leaving the tax rolls during the same period.

The shadow of Allotment-era policies continues to harm Indian Country, as these data show.  Prof. Pomersheim’s table addresses only five states.  I’d be very curious to see this information for all trust lands across the country.

Tribal leaders and officials at the Department of the Interior continue to support the restoration of tribal lands through the fee-to-trust process.  From 2009 to the end of 2012, the BIA had acquired approximately 200,000 acres in trust – a dramatic increase from the previous 8 years.  This work has been criticized by some members of Congress, state and local officials, and others as harmful to state and local governments.   This article addresses and/or refutes much of that criticism, especially as it relates to taxes and jurisdictional concerns. (I’ve long thought many of the criticism related jurisdiction and zoning tend to get overblown, as a vast majority of tribal fee-to-trust applications are for lands within, or contiguous to, existing reservations).

The continued loss of trust lands across Indian Country isn’t news.  But, Prof. Pommersheim’s work quantifies how efforts to put lands into trust are hindered by the continued erosion of trust lands due to Allotment-era policies.  Two steps forward, and one step back.

People who advocate for the protection of Indian lands, and for a strong fee-to-trust program, must emphasize these data.  The Indian Reorganization Act’s fee-to-trust process was intended to combat the loss of Indian lands through the policies of the Allotment era.  The loss of Indian lands did not end with the Indian Reorganization Act’s passage in 1934, but continues to this day.

This is big news following this week’s disappointing news out of the Supreme Court.  To some, this Executive Order may look like words on paper.  In a large bureaucracy, however, a directive from the Commander in Chief to coordinate on the development and implementation of Indian policy is a big deal.  It requires affected agencies to become more engaged on these issues.

The details:

• The White House Council on Native American Affairs is comprised of cabinet-level officials (or designees)
• The Council will meet three times per year
• The Council’s mission is to generate policy priorities for the President and coordinate federal engagement with tribes
• Institutionalizes the annual White House Tribal Nations Conference

The text of the Executive Order is here

Here.

Oxford University Press just released a new book by N. Bruce Duthu entitled “Shadow Nations: Tribal Sovereignty and the Limits of Legal Pluralism.” Find details on the Press website here. Here are some initial reviews, with more certainly to come soon:

“Duthu’s study reveals the complex and ancient reality of legal pluralism. This is inspiring work for nations and peoples in Latin America who embrace legal pluralism in the renewal of their constitutional systems.”–Eduardo Rodriguez Veltze, former President of Bolivia

“Shadow Nations is an elegant yet robust account of the complex and distinctive relationship between Indigenous Nations and the United States. It sheds needed light on a subject fraught with ambiguity and tension. Highly recommended.”–David E. Wilkins (Lumbee), University of Minnesota

“Duthu critically and humanely analyzes the trajectory of Indian-federal relations as he persuasively argues to re-invigorate a spirit of legal pluralism. Meticulous dissection of popular and juridical understandings of the key terms of our national history – sovereignty, self-determination, incorporation, liberalism, democracy, incorporation, citizenship – anchors the compelling moral, legal, and pragmatic strategies for action that Duthu presents in the final chapters. Grounded in history, critically engaged with legal systems, powered by social justice, and intellectually driven by Indigenous studies, Shadow Nations is a must read.”–K. Tsianina Lomawaima, Professor, American Indian Studies, University of Arizona

“This book digs through the details of Federal Indian law to effectively expose theoretical flaws eroding the foundations of tribal sovereignty. Duthu’s thoughtful reconstruction demonstrates how legal pluralism can build a jurisprudence which is both respectful of tribal sovereignty and the aspirations for freedom, liberty and equality which have long animated American political thought.”–John Borrows, Robina Chair in Law, Society, and Policy, Faculty of Law, University of Minnesota