The Gila River Indian Community in Arizona is considering a new law to banish tribal members convicted of violent crimes. A bill awaits a signature from the New York governor that aims to strengthen the Seneca Nation’s ability to enforce tribal laws, which includes removing people convicted of drug trafficking and other crimes. Those are among efforts by tribes to formalize the traditional practice of banishment as tool to combat crime, but such efforts sometimes conflict with modern legal systems. In Alaska, the Native Village of Togiak faces a legal challenge after tribal members forced a man suspected of illicit alcohol sales onto an airplane to another city. We’ll get insights from tribal leaders and Native legal experts on how banishment fits in with modern justice.
Tribal collaborative management of the Bears Ears National Monument is not new, but in its most recent iteration, it has only been recently recognized as a viable management framework. This article explores the meaning of that re-recognition to the five Tribal Nations of the Bears Ears Inter-Tribal Coalition, an organization that was formed to re-establish those ancestral connections and support the ongoing collaborative management of the Monument by the Bears Ears Commission and the two federal agencies charged with the legal mandate to protect this cultural landscape: the Bureau of Land Management and the U.S. Forest Service.
The 200th anniversary of the foundational Indian law decision Johnson v. M’Intosh has come and gone, with many scholars contributing criticism and commentary. The dominant focus has been the case’s notorious embrace of the so-called “doctrine of discovery,” an odious theory for rationalizing European nations’ claims of superior rights to lands occupied by Indigenous Native American peoples. Commanding less attention, however, is the Johnson decision’s core protective legal feature, i.e., its reinforcing the United States government’s duty to guard against the alienation of Indian lands through private, unauthorized acquisitions.
This Article offers a somewhat different appraisal of Johnson v. M’Intosh in the context of controversies over Indigenous rights. Notwithstanding the case’s offensive dicta, the unanimous Johnson opinion retains efficacy in safeguarding Native American land rights, provided certain infamous abuses of the decision as precedent can be identified and rectified. Accordingly, this Article examines instances of the modern Supreme Court’s distorting and misusing Johnson v. M’Intosh to damage, weaken, or deny Indian land rights. In centering attention on this abuse, the Article draws on eye‑opening, seldom‑viewed documents found among the papers of Supreme Court Justices archived at the Library of Congress and various universities across the country. The Article also discusses a series of modern‑era opinions by Supreme Court Justices that exemplify instructive conformity to and reliance upon Johnson’s protective features. Moreover, as a response to the joint call for papers issued by the Montana Law Review and the Public Land & Resources Law Review, the Article does not take merely a rear‑view‑mirror look at Johnson v. M’Intosh. Rather, this Article aspires to cast light on judicial distortions and misrepresentations of Johnson to help illuminate a “Vision for the Future” in legal battles over Indigenous property rights.
The NYU Law Review is open for Articles & Online Features. The submission guidelines and portals can be found here. Any questions about the submission process can be referred to NYULR‘s EIC, Yejin Chang (yejin@nyu.edu) and Senior Online Editor, Priya Prasad (nyulrevonline@gmail.com).
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