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.

Larry Cata Backer on Che and the UN Declaration

Larry Catá Backer has posted “From Hatuey to Che: Indigenous Cuba Without Indians and the U.N. Declaration on the Rights of Indigenous Peoples.” It is published in the most recent edition of the American Indian Law Review, Vol. 33, 2009. The abstract:

Indigenous peoples have been quite useful to political elites in Latin America almost since the time of the conquests by Spanish and Portuguese adventurers in the fifteenth and sixteenth centuries. In the nineteenth and early twentieth centuries, indigenous people supplied the foundations for a trope, both literary and political, essential for the construction of cultural, ethnic, racial, and political identities distinct from the traditional colonial masters of emerging Latin American states, as well as from that great power to the north. This paper looks at one aspect of this rich development by focusing on the noble savage, the construction of Caribbean (and principally Cuban) political identity, and the formation of governance ideals. The focus will be on three people, separated by hundreds of years but all connected by the parallels of their lives and their place within Caribbean literary and political thought. I will start with the great archetypical figure of Cuban history – a Taino Indian from the island of Hispaniola – el indio Hatuey. The heart of the paper examines essays of Jose Marti in the broader context of Latin indigenismo. Marti, like the Spanish before him, confronts the Indian in Cuban life. But unlike the Spanish, Marti deploys the Indian in the service of the construction of Cuban national indigenismo. The last great figure considered in the development of Cuban indigenismo is Fidel Castro Ruz. Castro served as the leader of Cuba from the successful conclusion of the Cuban Revolution of 1959 until early 2008 when illness forced his retirement. The indigenismo of Marti finds rich embellishment in the great speeches of Fidel Castro. With Fidel Castro we witness the maturation of the process of denaturing the Indian from indigenismo. The essay ends with a consideration of the U.N. Declaration on the Rights of Indigenous Peoples from the perspective of this constructed Cuban indigenismo without Indians. In a Cuba without Indians, but where the memory of the Indian is revered, Cuba can seek to assert the rights of indigenous peoples everywhere without having to confront the issue of its own Indians. In a construction of a social and ethnic order in which the Indian has disappeared, to assert the right of indigenous people in Cuba is to assert the rights of the Cuban nation as a singular but blended mass.

Thanksgiving at Public Schools — 1st Amendment Case

In Doe v. Wilson County School System, a federal district court judge ordered a trial on the question of whether a thanksgiving day teaching unit featuring a prayer by pilgrims violated the First Amendment:

District Court Order [see pages 9-10]

Continue reading

Calif. Bar Exam Results and Affirmative Action Critics

From Cheryl Harris at UCLA Law:


I am writing seeking your help and counsel in preventing the disclosure of private data regarding our students that would have little research value but could produce significant harm. Rick Sander, in collaboration with two other law professors, Bill Henderson of Indiana University School of Law and Vik Amar of UC Davis, is seeking to get the California Bar Examiners to release the bar exam scores, as distinct from the the passage rates, for Black and Latino law school graduates. He wants the LSAT scores, race, gender, law school attended, repeater status, and bar exam scores for all those taking the bar exam for the first time between 1997 and 2003—the classes admitted from 1994 to 1999. He furthers wants similar data on Black and Latino graduates from the classes of 2004 and 2005. His argument is that this will help evaluate his prior claims attributing poorer bar passage rates and lower law school performance to affirmative action ( or as he prefers to call it “racial preferences” ) which admit Black and Latino students with lower entering academic credentials into institutions with significantly higher median scores.

I am attaching a National Law Journal op-ed authored by myself and Walter Allen, Professor of Education and Sociology at UCLA, explaining why the Bar Examiners should stick by their original decision to deny him access to this material. The reason they point to is that the test takers provide the background information to the bar examiners for the purpose of determining testing validity—that is whether the test is fair. There is no specific request or consent given to provide access to a group of researchers to test a hypothesis. (I should point out that this disclosure is different from that g iven to LSAC projects like the BPS study or the more recent, After the JD study, in that institutional actors like LSAC who are governing bodies for the administration of evaluations have a distinct responsibility to engage in ongoing evaluation to determine best practices—a different inquiry than verifying a hypothesis.)This privacy concern is compounded by the fact that while his team promises to take precautions in structuring how the data will be reported, given the extremely small numbers of Black students in some of the cohorts, it would be possible for someone to extrapolate from the reported data back to a particular set of people.

There are serious problems with the research model that Sander et. al. propose. While this time the research team includes people who, unlike Sander, are not committed to the mismatch thesis, the reason that the research has twice failed to get National Science Foundation funding is that as the peer review letters disclose (all of this is on Sander’s website), the project is grounded on a set of assumptions—among them that bar scores reflect what is learned in law school—and encumbered by a set of problems that skew the pool to be tested—so-called selection biases.

Rather than addressing these issues, and figure out how to redesign the proposal so that it will meet peer review, Sander has now engaged in a campaign to publicly pressure the California Bar into giving him this data. He first went to the US Civil Rights Commission which is now populated by people like Abigail Thernstrom and Gail Heriot, of the Proposition 209 campaign, who unsurprisingly support his request since his research supports their political opposition to affirmative action. Heriot wrote an article in the Wall Street Journal chastising the committee for giving into political correctness and then Sander and Amar wrote the LA Times op-ed Sept 26 to which Walter and I responded.

Sander has succe eded in getting the Board of Governors of the California Bar to review the initial decision to deny and set the matter for a public hearing on November 8, 2007 before the Board’s Committee on Regulation, Admissions and Discipline Oversight at 2:30 here in Los Angeles. Thus far, there are letters on record supporting the general idea of Sander’s project and urging the release of this data. If the board is to be fully apprised of the issues and take account of the concerns regarding potential harm, it needs to hear from as many as possible. I know that colleagues at Stanford are planning to appear and that students and alum from Stanford are wanting to be heard as well. I will be there also.

I am writing to ask if you would be willing to weigh in. Regardless of whether one thinks that the mismatch hypothesis has been empirically demonstrated or not, the problem here is that the method proposed to test it is deeply flawed and risks putting our students in harm’s wa y, without their even having given consent to such examination.

If you think you might be interested, I would ask that you contact me via email and then perhaps an appropriate response can be coordinated. Excuse the length of the email but I wanted to be as thorough as possible.

The op-ed is here.



Grand Traverse Band Marina Proposal

From the Leelanau Enterprise:

Tribal officials have unveiled plans to build a 129 to 135-slip municipal marina in Peshawbestown that could be open for business as early as the 2008 boating season.

The Tribal Council of the Grand Traverse Band of Ottawa and Chippewa Indians took actions last week that could pave the way for the dredging and construction project to begin before the end of this year.

More Federal Recognition: The Burt Lake Band Case

The Burt Lake Band of Chippewa and Ottawa Indians is petitioning for federal recognition. The BIA has proposed to deny their recognition. Last year, the BIA finalized that proposal to deny, but these documents are not online yet.

Documents here:

Notice of Proposed Finding Against — dated April 15, 2004

Documents in Support of the Proposed Finding — dated March 25, 2004

A copy of the bill to recognize the Burt Lake Band via Act of Congress is here.

The Burt Lake Band are the descendants of the people subjected to the “Burt Lake Burnout” near the turn of the century. We’re written about this disaster here.

Grand Traverse Band Tribal Common Law

The Tribal Law Journal has posted this attempt to summarize the common law decisions of the Grand Traverse Band tribal courts. Miigwetch to Zeke Fletcher for writing the introduction. And to Zeke and John Petoskey for offering comments and guidance on the article.


Welcome to the blog of the Michigan State University College of Law’s Indigenous Law and Policy Center!!!!

You can learn more about the Center by visiting our website.

We are hosting the 4th annual Indigenous Law Conference on October 19-20, 2007. You can register here.

We also publish occasional papers and white papers regarding Indian law and policy areas at this site. We have researched and written (often with our students) papers on tribal law, the Michigan ban on affirmative action, and other topics.