Databook of the US Censuses and the American Community Survey 1990 – 2010

Randall K.Q. Akee & Jonathan B. Taylor have published “Social and Economic Change on American Indian Reservations: A Databook of the US Censuses and the American Community Survey 1990 – 2010.”

An excerpt from the summary:

The fortunes of Indians on reservations continue to lag those of other racial and ethnic groups tracked by the census in the United States. The per capita income of Indians on reservations, for example, has been less than half the US average, consistently falling far below that of Hispanics, African Americans, Asian Americans, and Indians living elsewhere. Nonetheless, in recent decades, tribes have made progress in income growth and other measures. This databook—research made possible with funding from the Sycuan Institute on Tribal Gaming—documents how and where change has taken place.

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.

Fletcher & Vicaire: “Indian Wars: Old and New”

Matthew Fletcher and Peter Vicaire have posted “Indian Wars: Old and New” on SSRN (download here). This is a paper prepared for the Journal of Gender, Race, and Justice’s 15th Anniversary symposium, “War On … The Fallout of Declaring War on Social Issues.”

Here is the abstract:

This short paper analyzes American history from the modern “wars” on poverty, drugs, and terror from the perspective of American Indians and Indian tribes. These domestic “wars” are aptly named (it turns out), as the United States often blindly pursues broad policy goals without input from tribal interests, and without consideration to the impacts on Indians and tribes. With the possible exception of the “war on poverty,” these domestic wars sweep aside tribal rights, rights that are frequently in conflict with the overarching federal policy goals.

This essay explores three declared domestic wars, and their impacts on American Indian tribes and individual Indians, in loose chronological order, starting with the war on poverty. As Part 1 demonstrates, the Johnson Administration’s Great Society programs helped to bring American Indian policy out of the dark ages of the era of termination, in which Congress had declared that national policy would be to terminate the trust relationship. Part 2 describes the war on drugs, declared by the Reagan Administration, which had unusually stark impacts on reservation communities both in terms of law enforcement, but also on American Indian religious freedom. Part 3 examines the ongoing war on terror, which Bush Administration officials opined has its legal justification grounded in part on the Indian wars of the 19th century. The war on terror marks America’s return to fighting a new Indian war, where the adversary is illusive and motivated, and where the rule of law is literally obliterated.

Bethany Berger on Racism

Bethany Berger has posted her paper “Red: Racism and American Indians” on SSRN. It is forthcoming in the UCLA Law Review. Here is the abstract:

How does racism work in American Indian law and policy? Scholarship on the subject has too often assumed that racism works for Indians in the same way that it does for African Americans, and has therefore either emphasized the presence of hallmarks of White-Black racism, such as uses of blood quantum, as evidence of racism, or has emphasized the lack of such hallmarks, such as prohibitions on interracial marriage, to argue that racism is not a significant factor. This Article surveys the different eras of Indian-White interaction to argue that racism has been important in those interactions, but has worked in a distinctive way. North Americans were not primarily concerned with using Indian people as a source of labor, and therefore did not have to theorize Indians as inferior individuals to control that labor. Rather, the primary concern was to obtain tribal resources and use tribes as a flattering foil for American governments. Therefore it was necessary to theorize tribal societies as fatally and racially inferior, while emphasizing the ability of Indian individuals to leave their societies and join non-Indian ones. This theory addresses the odd paradox that the most unquestionably racist eras in Indian-White interaction emphasized and encouraged assimilation of Indian individuals. It contributes to the ongoing effort to understand the varying manifestations of racism in a multi-racial America. Most important, it provides a new perspective on efforts to curtail tribal sovereignty in the name of racial equality, revealing their connection to historic efforts to maintain the inferiority of Indian tribes by treating them as racial groups rather than political entities with governmental rights.

Miller and Ruru: A Comparative View of the Doctrine of Discovery

Bob Miller and Jacinta Ruru have posted “An Indigenous Lens into Comparative Law: The Doctrine of Discovery in the United States and New Zealand” on SSRN.

From the abstract:

Continue reading

Rebecca Tsosie on Native American Genetic Resources

Rebecca Tsosie (Arizona State) has published “Cultural Challenges to Biotechnology: Native American Genetic Resources and the Concept of Cultural Harm” in the Journal of Law, Medicine & Ethics (2007).

You can download the article here:  Tsosie Article

Eagle Repository Case: United States v. Friday (CA10)

In December, the Tenth Circuit will hear oral argument in the United States’ appeal of the dismissal of the prosecution of Winslow Friday for the taking of eagle parts. The district court found that the difficulty for American Indians in obtaining eagle parts using the national eagle repository permit system violated the Religious Freedom Restoration Act. Specifically, the court held that the eagle repository permit system was not the least restrictive means to protect eagles and therefore infringed on the religious freedom of Winslow Friday.

One element of the case that might make it difficult for Winslow Friday is the apparent fact that he never applied for a permit. The lower court found that the application of a permit was futile. However, some American Indians did seek and receive permits to fatally take eagles, perhaps only 1 but perhaps as many as 5.

The lower court order is here: District Court’s Order of Dismissal

The Government’s opening brief is here: US Opening Brief

Friday’s response brief is here: Friday’s Response Brief

The Government’s reply brief is here: US Reply Brief

“Subtle Racism” and American Indians

From the Tulsa World:

American Indians are more likely to be regarded with prejudice than are other minorities by white TU students, a study shows.

“The findings support the idea that although overtly racist ideas toward African-Americans appear to be less prevalent in contemporary America, overt racism towards Native Americans is present,” TU researchers said in the study.

Results were from a written survey of 55 white, middle-class college students in their 20s at TU who had been in college for more than a year.

The study found that American Indians were consistently regarded less favorably on social factor indicator scales than black people.

Researchers said the mix of the state’s many tribes increased the likelihood of students coming into contact with an Indian person.

According to 2006 U.S. Census estimates, 43,364 self-identified American Indians live in Tulsa County. Statewide, the number is 397,041.

Findings from the study indicate that although the respondents knew that Indians are different in culture, they were viewed less positively than black people, a factor they attributed to “subtle racism.”

One aspect was perceived privileges, such as free health care, researchers said.

Researcher Dennis Combs, a former TU associate psychology professor who now works at the University of Texas-Tyler, said the findings are surprising because college students are perceived as liberal regarding race issues.

“Also, Native Americans may also be subject to a newer form of racism called subtle racism, which is centered on them as being different, having poor work ethic, and unfavorable,” said Combs, who conducted the study along with student Melissa Tibbits.

Indians also are more likely to be regarded with “blatant prejudice” than black people, the survey showed.

The study also found that particular attributes, such as associating Indians with a heightened sense of nature and spiritual awareness — while not negative — paint a picture based on assumptions rather than reality.

Officials with the Tulsa Indian Coalition on Racism, who viewed the study’s results, said that when generalities about Indians abound, negative viewpoints are nurtured and sustained.

“People think we have privilege and all get gaming checks. . . . That’s not true,” TICAR President Louis Gray said.

“People don’t think of us as human; we’re just symbols, but we have hopes and dreams like everyone else,” he said.

Gray said education is key in getting a more realistic image of Indians across to the general public.

Nancy Day, executive director of the Oklahoma Conference for Community and Justice, said, “The roots of contemporary discrimination and racism directed against native peoples can be traced to the early periods of our country’s history, and the manifestations of this discrimination are myriad.”

Combs said, “In my opinion, the question that needs to be answered is where do these overtly racist attitudes come from, and one possible source is the negative stereotyping that Native Americans experience on a daily basis.”

Preliminary findings from the same report were presented two years ago to TICAR.

Gray said he was surprised that the viewpoints had changed little among college students.

“Frankly,” he said, “I was hoping that people would be more informed of what we face every day.”