Harvard Law Review Casenote on Williams v. Medley Opportunity Fund II [tribal payday lending]

Here is “Williams v. Medley Opportunity Fund II, LP: Third Circuit Rules that Tribal Payday Lenders Cannot Compel Arbitration.”

We posted the materials on this case here.

Kristen Carpenter’s Book Review of McNally’s “Defending the Sacred” in the Harvard Law Review

Kristen A. Carpenter has published “Living The Sacred: Indigenous Peoples and Religious Freedom” in the Harvard Law Review, reviewing Michael McNally’s “Defend the Sacred: Native American Religious Freedom Beyond the First Amendment.”

Stephanie Hall Barclay & Michalyn Steele on Protections for Indigenous Sacred Sites

Stephanie Hall Barclay & Michalyn Steele have published “Rethinking Protections for Indigenous Sacred Sites” in the Harvard Law Review. Here is the abstract:

Meaningful access to sacred sites is among the most important principles to the religious exercise of Indigenous peoples, yet tribes have been repeatedly thwarted by the federal government in their efforts to vindicate this practice of their religion. The colonial, state, and federal governments of this Nation have been desecrating and destroying Native American sacred sites since before the Republic was formed. Unfortunately, the callous destruction of Indigenous sacred sites is not just a troubling relic of the past. Rather, the threat to sacred sites and cultural resources continues today in the form of spoliation from development, as well as in the significant barriers to meaningful access Indigenous peoples face.

Scholars concerned about government failure to protect Indigenous sacred sites on government property have generally agreed that the problem stems from the unique nature of Indigenous spiritual traditions as being too distinct from non-Indigenous religious traditions familiar to courts and legislators, and therefore eluding protection afforded to other traditions. By contrast, this Article approaches the problem from an entirely different angle: we focus instead on the similarities between government coercion with respect to Indigenous religious exercise and other non-Indigenous religious practices. We illustrate how the debate about sacred sites unwittingly partakes in longstanding philosophical debates about the nature of coercion itself — a phenomenon that has previously gone unnoticed by scholars. This Article argues that whether or not one formally labels the government’s actions as “coercive,” the important question is whether the government is bringing to bear its sovereign power in a way that inhibits the important ideal of religious voluntarism — the ability of individuals to voluntarily practice their religious exercise consistent with their own free self-development. Indeed, this is precisely the sort of question courts ask when evaluating government burdens on non-Indigenous religious exercise. The failure to ask this same question about voluntarism for Indigenous religious practices has created a double standard, wherein the law recognizes a much more expansive notion of coercion for contexts impacting non-Indigenous religious practices, and a much narrower conception of coercion when it comes to Indigenous sacred sites.

This egregious double standard in the law ought to be revisited. Doing so would have two important implications. First, when government interference with religious voluntarism is viewed clearly, tribal members and Indigenous practitioners should be able to prove a prima facie case under statutes like the Religious Freedom Restoration Act much more easily. Second, this Article makes the novel claim that clearer understanding of the coercive control government exercises over sacred sites should animate a strong obligation under the government’s trust responsibility and plenary power doctrine to provide more — rather than less — robust protection of Indigenous sacred sites.

Stephanie Barclay & Michalyn Steele on Indian Sacred Sites

Stephanie H. Barclay & Michalyn Steele have posted “Rethinking Protections for Indigenous Sacred Sites,” forthcoming in the Harvard Law Review.

Here is the abstract:

Meaningful access to sacred sites is among the most important principles to the religious exercise of indigenous peoples, yet tribes have been repeatedly thwarted by the federal government in their efforts to vindicate this practice of their religion. The colonial, state, and federal governments of this Nation have been desecrating and destroying Native American sacred sites since before the Republic was formed. Unfortunately, the callous destruction of indigenous sacred sites is not just a troubling relic of the past. Rather, the threat to sacred sites and cultural resources continues today in the form of spoliation from development, as well as in the significant barriers to meaningful access indigenous peoples face.

Scholars concerned about government failure to protect indigenous sacred sites have generally agreed that the problem stems from the unique nature of indigenous spiritual traditions as being too distinct from non-indigenous religious traditions familiar to courts and legislators and therefore eluding protection afforded to other traditions. By contrast, this Article approaches the problem from an entirely different angle: we focus instead on the similarities between government coercion with respect to indigenous religious exercise and other non-indigenous religious practices. We illustrate how the debate about sacred sites unwittingly partakes of longstanding philosophical debates about the nature of coercion itself—a phenomenon that has previously gone unnoticed by scholars. This Article argues that whether or not one formally labels the government’s actions as “coercive,” the important question is whether the government is bringing to bear its sovereign power in a way that inhibits the important ideal of religious voluntarism—the ability of individuals to voluntarily practice their religious exercise consistent with their own free self-development. Indeed, this is precisely the sort of question courts ask when evaluating government burdens on non-indigenous religious exercise. The failure to ask this same question about voluntarism for indigenous religious practices has created a double standard, wherein the law recognizes a much more expansive notion of coercion for contexts impacting non-indigenous religious practices, and a much narrower conception of coercion, in the tradition of Robert Nozick, when it comes to indigenous sacred sites.

This egregious double standard in the law ought to be revisited. Doing so would have two important implications. First, when coercion is viewed clearly, tribal members and indigenous practitioners should be able to prove a prima facie case under statutes like the Religious Freedom Restoration Act (RFRA) much more easily. Second, this Article makes the novel claim that clearer understanding of the coercive control government exercises over sacred sites should animate a strong obligation under the government’s trust responsibility and plenary power doctrine to provide more—rather than less—robust protection of indigenous sacred sites.

Highly recommended!!!

Harvard Law Review Profile of Native Hawaiian Land Restitution

The Harvard Law Review has published Developments in the Law — “Aloha ‘Āina: Native Hawaiian Land Restitution.”

An excerpt:

Mauna Kea is just one recent case in Hawaiian history that betrays a restitution claim. This Chapter argues that the lands of the Hawaiian Kingdom unjustly enriched the United States when the Kingdom was overthrown, and that the State of Hawai‘i benefited from the same when it was admitted into the Union. The wealth accrued due to the possession of this land has continued to unjustly enrich these governments. Courts should recognize a restitution remedy for Native Hawaiians seeking their rights to these lands.

Maggie Blackhawk on Indian Law as a Paradigm

Maggie Blackhawk has published “Federal Indian Law as Paradigm Within Public Law” in the Harvard Law Review (PDF).

Here is an excerpt from the abstract:

U.S. public law has long taken slavery and Jim Crow segregation as a paradigm case through which to understand our constitutional law: cases adjudicating issues of slavery and segregation form the keystones of our constitutional canon. Reconstruction, or the so-called “Second Founding,” and the Civil Rights Era periodize our constitutional histories. Slavery and Jim Crow segregation supply normative lessons about the strengths and failings of our constitutional framework. This paradigm teaches that if there is too much power in the states and not enough limitation on state power in the form of national power or rights, America might again reenact similar atrocities. Although there is much to learn from the United States’ tragic history with slavery and Jim Crow segregation, resting our public law on this binary paradigm has led to incomplete models and theories. This Nation’s tragic history of colonialism and violent dispossession of Native lands, resources, culture, and even children offers different, yet equally important, lessons about our constitutional framework.

In this Article, I argue for a more inclusive paradigm that reaches beyond the black/white binary, and I highlight the centrality of federal Indian law and this Nation’s tragic history with colonialism to public law. Currently, to the extent that federal Indian law is discussed at all within public law, it is generally considered sui generis and consigned to a “tiny backwater.” While I concede that the colonial status of Native peoples and the recognition of inherent tribal sovereignty do render aspects of federal Indian law exceptional, federal Indian law and Native history have much to teach about reimagining the constitutional history of the United States. Interactions between the national government and Native Nations have shaped the warp and woof of our constitutional law from the Founding across a range of substantive areas, including vertical and horizontal separation of powers, the Treaty Clause, war powers, executive powers in times of exigency, and many others. I aim to open a conversation as to whether these doctrines ought to take their rightful place in the canon or, perhaps, the anticanon.