Lauren van Schilfgaarde has posted “(Un)Vanishing the Tribe,” forthcoming in the Arizona Law Review, on SSRN. Here is the abstract:
The U.S. Supreme Court has revived a century-old rhetoric that frames Tribal sovereignty as vanishing. The logic behind this reasoning is often cloaked behind concerns for states’ equal footing and interests. But once the veneer is removed, the Court’s reliance upon what I term the “vanishing Tribe trope” reveals a lawless foundation, and ultimately harms the legal principles of sovereignty it proports to enforce.
Like nation-state sovereignty, Tribal sovereignty is rooted in international norms reflecting the self-determination rights of peoples to territorial integrity, political unity, and to be free from nonintervention. International legal norms recognize dominant-dependent sovereign relations, like that between the U.S. federal government and Tribes, as negotiated power imbalances between sovereigns that nevertheless preserve their respective sovereignty and thereby preserve sovereignty broadly. Within federal Indian law, Tribal sovereignty has long been a volatile legal doctrine. Nevertheless, federal Indian law’s international roots are reflected in the federal Indian legal principle that Tribal self-government should be persevered unless Congress clearly expresses otherwise.
Such legal principles, however, are only as valuable as courts value Tribes. In the late nineteenth century, despite the fortitude of sovereignty terminology, courts often dismissed Tribal sovereignty because they perceived Tribes as vanishing. Tribes would soon be gone, so the thinking went, and so courts need only give passing concern to threats to Tribal sovereignty as those threats would soon be moot. In short, Tribal sovereignty was “temporary and precarious.” But Tribes did not vanish. Rather, Tribes are thriving, and their sovereignty is now framed in their perpetual rights to self-determination. So why then, did the U.S. Supreme Court in Oklahoma v. Castro-Huerta, hold that Tribal sovereignty had once again been implicitly divested? In citing to historically fraught late nineteenth century cases, the Court has revived antiquated views of Tribes as inferior, and inevitably vanishing. Tribes’ vanishing status permits the Court to abandon judicial restraint and imply unauthorized intrusions into Tribal sovereignty. The Court was disturbingly out-of-step with contemporary understandings of Tribal sovereignty, and consequently threatens any legal foundations on which to rely and plan for a future.
To anticipate a future that includes Tribes necessitates contending with the Court’s new embrace of the vanishing Tribe legal doctrine in Castro-Huerta and its company—doctrine that envisions a Tribe-less future. Castro-Huerta frames the Tribal-federal sovereign-to-sovereign framework as crumbling pillars limply bracing a precarious and temporary Tribal sovereignty. Anticipating Tribal futures must dismiss these crumbling pillars and will require not just contending with the vanishing Tribe trope, but with the need to build an entirely new sovereign-to-sovereign framework.
In light of the federal government’s willingness to consider new methods of tribal consultation, this article builds on previous scholarly work by arguing that the goal of tribal consultation should be consent. This conclusion is buttressed by tribal treaty language, the federal trust relationship, and the dictates of the FPIC requirement. The federal government should adopt language suggesting that consent is the goal unless not legally possible. Federal officials must be educated on tribal sovereignty, treaties, and the federal trust relationship. Consultation must begin as soon as possible in the decision-making process. Tribes should be engaged to better understand how they wish to participate in consultation. Federal officials must collaborate with their tribal counterparts in a bilateral, respectful way. And, in addition to the federal government, it may also be in the best interest of third parties, such as corporations, to assist tribes and the federal government in finding effective and meaningful consultation, as failure to do so could prove costly. Incorporating these recommendations will hopefully move us away from the broken status quo toward meaningful, legal consultations leading to consent in most instances – promoting tribal sovereignty over box-checking.
Environmental law and policy in the United States has historically ignored Native Nations as stakeholders or rights holders, thereby sidelining those Nations and forcing them to function as protestors rather than participants. This is a foundational error that tarnishes the otherwise well-intended policy underlying environmental protection of any sort. Both the international community and international rights associated with climate change must avoid these early missteps. There are additional benefits to treating Indigenous peoples as more than simply interest groups. In so many ways, Indigenous peoples represent the drivers and implementers of policy and contribute invaluable traditional ecological knowledge in understanding the interdependency and interconnectedness of the environment and communities. Across the globe, Indigenous peoples are on the front lines suffering from the effects of climate change, and they should have the opportunity to take a leading role in developing and protecting the newly identified U.N. Right to a Healthy Environment.
Tribal Consultation: Expanding Tribal Self Determination Policies at USDA
Where: National Congress of American Indians Mid-Year (Cherokee, N.C.) (Hybrid: In-person and virtual)
Caucus: May 23rd: 2:00 pm – 5:00 pm (ET)
The Indigenous Food and Agriculture Initiative will facilitate a Tribal Caucus on May 23 from 1-4 p.m. CST ahead of the USDA Consultations on Expanding Tribal Self Determination Policies during NCAI Mid Year, the week of June 3 at the Eastern Band Cherokee Indians. This caucus will be closed to federal staff, and registrants will have access to a briefing note that will cover the three topics.
Tribal Treaty Database Consultation and Listening Session What: Tribal Treaty Database Consultation and Listening Session Where: NCAI Midyear Convention, Cherokee, North Carolina Room: 108 When: Wednesday, June 5, 2024 1:00 – 3:00PM ET RSVP: Whether attending in person or remote please register at the following link: Tribal Consultation and Listening Session on USDA-DOI Treaty Database ZoomGov registration
Native Hawaiians have been skeptical of corporate landowners’ alleged concerns over disaster preparedness and characterization of traditional water rights. They blame the prioritization of corporate water interests, the privatization of water, and the harms of colonialism for the severity of the fires. And they worry that Lahaina’s destruction could be used to furtively pass “unpopular laws and policies” that prioritize commercial uses and exacerbate political inequality. As Chandler-‘Īao’s box of water-permit applications illustrates, the Maui fires represent an inflection point for Hawaiian water law. But we did not arrive at this point overnight. Rather, the fires were the byproduct of a century of colonialism that imposed a resource-management regime that razed the environment and externalized its harms on kānaka maoli. Because of this legacy, Maui was “a ticking time bomb” for wildfires. When it is remembered that the ancient Hawaiian system of watershed management was sustainable before it was ravaged by colonialism, Maui’s current state is even more heart wrenching.
Turtle Talk 
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