Columbia Law Review Forum

Elizabeth Hildago Reese has published “The Three Phases of the Tribal Self-Determination Era and the Phase-Out of Federal Paternalism” in the Columbia Law Review Forum.

Here is the abstract:

We commonly call the last fifty years of federal Indian law and policy the “tribal self-determination era.” This Piece argues that this era is actually three conceptually distinct though temporally overlapping phases of federal Indian law and policy development. Each of these three distinct phases is a step further dismantling the structures of federal paternalism and replacing them with laws and policies that support tribal nations’ strength, capacity, and autonomy. Paternalism has become, therefore, somewhat of an anti–North Star for the transformative federal Indian policies of the last fifty years and can continue to serve as that anti-guiding light for further federal Indian law and policy development. What makes this era challenging and noteworthy is that it is characterized by an instance of something unusual and difficult for a government: a commitment to giving up power.

Now this commitment is at a crossroads. The Biden Administration championed a third phase of policies with traditionally conservative, small government–minded commitments to start shrinking federal government bloat and promoting deference to or cooperation with local tribal decisionmaking. The Trump Administration must decide between conservative impulses to continue this work of shrinking unnecessary federal bureaucracy or more authoritarian impulses to increase the control that funding gives the executive branch over entities like tribal nations that rely on that funding.

Highly, highly recommended! Any forward-looking scholarship in this field is golden and this paper is simply brilliant.

Elena A. Baylis has posted “Looted Cultural Objects,” forthcoming in the Columbia Law Review Forum, on SSRN. Here is the abstract:

In the United States, Europe, and elsewhere, museums are in possession of cultural objects that were unethically taken from their countries and communities of origin under the auspices of colonialism. For many years, the art world considered such holdings unexceptional. Now, a longstanding movement to decolonize museums is gaining momentum, and some museums are reconsidering their collections. Presently, whether to return such looted foreign cultural objects is typically a voluntary choice for individual museums to make, not a legal obligation. Modern treaties and statutes protecting cultural property apply only prospectively, to items stolen or illegally exported after their effective dates. But while the United States does not have a law concerning looted foreign cultural objects, it does have a statute governing the repatriation of Native American cultural items and human remains. The Native American Graves Protection and Restoration Act requires museums to return designated Native American cultural objects to their communities – even if they were obtained before the law went into effect. This statute offers a valuable model for repatriating foreign cultural objects that were taken from formerly colonized peoples.