Maryland Law Review

Trevor Reed on NAGPRA

Matthew L.M. Fletcher

Trevor Reed has posted “The Intangible NAGPRA,” forthcoming in the Maryland Law Review, on SSRN.

Here is the abstract:

Following a 2023 regulatory update, the Native American Graves Protection and Repatriation Act (“NAGPRA”) of 1990, which recognizes Tribal Nations’ ownership interests in their ancestors and artifacts, now expressly includes a controversial public display right that has shuttered museum displays across the country. Though functionally similar to widely criticized provisions of Italian cultural heritage law, I argue that the new regulations are justifiable given the unique status of Tribal Nations in U.S. constitutional law and Congress’s intent to negotiate a remedy for long-standing human rights abuses.  Indeed, the Intangible NAGPRA is precisely what Tribal representatives on the Congressionally mandated year-long Panel for a National Dialogue on Museum/Native American Relations believed they were working toward in the lead-up to NAGPRA’s passage.  Thus, this paper encourages the continued exercise of Indigenous peoples’ rights to protect their ancestors, belongings, sacred and cultural materials and the corresponding intellectual property rights that pertain to them.

Lincoln Davies on Federal Trust, Tribal Sovereignty, and Environmental Policy

Matthew L.M. Fletcher

Lincoln Davies has posted “Skull Valley Crossroads: Reconciling Native Sovereignty and the Federal Trust,” forthcoming in the Maryland Law Review. Here is the abstract:

It has been long-recognized that a deep tension pervades federal American Indian law. The foundational principles of the field – on the one hand, the notion that tribes keep their inherent right of sovereignty and, on the other, that the federal government has a power and duty to protect them – clash on their face. Despite years of criticism of this conflict, the two principles continue to coexist, albeit uncomfortably. Using the example of the Skull Valley Band of Goshute Indians’ controversial proposal to store high-level nuclear waste on their land, this Article revisits the tension in these doctrines, weighs prior proposals attempting to reconcile them, and concludes that, ultimately, sovereignty and the federal trust are not reconcilable. Finding sovereignty superior -morally, historically, and politically – the Article thus offers a new model for promoting native sovereignty: allowing tribes to be treated similarly to states.