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

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.