Roger Williams Law Review Symposium: An Uncomfortable Truth, Indigenous Communities and Law in New England


Roger Williams would have been the keynote speaker at this event.


Mohegan Women, the Mohegan Church, and the Lasting of the Mohegan Nation
Bethany R. Berger and Chloe Scherpa


An Uncomfortable Truth: Law as a Weapon of Oppression of the Indigenous Peoples of Southern New England
James D. Diamond


Uncomfortable Truths About Sovereignty and Wealth
Matthew L.M. Fletcher


Returning Home and Restoring Trust: A Legal Framework for Federally Non- Recognized Tribal Nations to Acquire Ancestral Lands in Fee Simple
Taino J. Palermo


The Continued Impact of Carcieri on the Restoration of Tribal Homelands: In New England and Beyond
Bethany Sullivan and Jennifer Turner


Colonial Legislation Affecting Indigenous Peoples of Southern New England as Organized by State
James D. Diamond



Vol 27: No. 2 (Spring 2022)

Notes and Comments


Resisting Indigenous Erasure in Rhode Island: The Need for Compulsory Native American History in Rhode Island Schools
Whitney Saunders

Fletcher Essay for Roger Williams University Law Review Symposium “An Uncomfortable Truth: Indigenous Communities and Law in New England”

Here is “Uncomfortable Truths about Sovereignty and Wealth.” The abstract:

How wealth and sovereignty interact is both hotly contested and misunderstood. In my view, sovereignty exists to preserve wealth for the already-wealthy. When it comes to Indigenous peoples and Indian nations, federal and state sovereigns have almost always exercised their powers to suppress tribal wealth, even a half-century after Congress turned toward tribal self-determination as guiding national policy. Federal and state sovereignty used in this manner is evidence of systemic racism.
This paper is part of the Roger Williams Law Review symposium “An Uncomfortable Truth: Indigenous Communities and Law in New England.”

Related comic book here.

Alex Pearl on Maximizing Welfare and Efficiency Through Informal Norms in Indian Law

M. Alexander Pearl has posted “Of ‘Texans’ and ‘Custers’: Maximizing Welfare and Efficiency Through Informal Norms,” forthcoming in the Roger Williams University Law Review, on SSRN.

Here is the abstract:

Professor Robert Ellickson (Yale) theorized that the informal norms of a close-knit community maximize aggregate welfare and Professor Barak Richman (Duke) identified two distinct types of private ordering systems: “shadow of law” and “order without law.” Under the Ellickson-Richman structure, many Indian tribes qualify as close-knit groups where informal norms effectively operate. The additional trait of isolation — both geographic and cultural — makes them ideal communities for the prioritization of informal norms. The imposition of external law, such as state law, is harmful and unnecessary to the maintenance of order in these communities. Recent legislative efforts to ameliorate criminal problems in Indian Country miss the mark and an alternative solution prioritizing the operation of informal norms and private ordering should prevail over application of external law and structures.

This article expands upon Ellickson’s assessment of how social behavior is affected by law and other forces, such as the informal norms in a given social group. Part I explains Ellickson’s theory and analyzes other important contributions made by other scholars. Part II discusses the taxonomy of historical and current examples of communities utilizing informal norms, or private law based mechanisms, to resolve disputes and how efficient results that maximize welfare (as defined by the community) are achieved. Part III, addresses the question of whether government law enforcement interferes with the close-knit community to an extent great enough to diminish the efficacy, or existence, of operative informal norms. Part IV examines anthropological sources to argue that the unique attributes of various Indian tribes and tribal communities warrant definition as the type of close-knit communities contemplated under Ellickson’s theory. Part V explains why the informal norms of certain tribal communities should be allowed to operate without interference from outside legal forces (Custers). Finally, Part VI looks at the relevant provisions in the recently passed Tribal Law and Order Act of 2010 and asks whether they effectively address the criminal justice issues facing Indian tribes subject to State criminal jurisdiction.