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.

Ann Tweedy on Unjustifiable Expectations

Highly recommended!!!!

Ann Tweedy has posted her paper, “Unjustifiable Expectations,” on SSRN. Here is the abstract:

When the Supreme Court decides whether a tribe has jurisdiction over non-members on its reservation or addresses the related issue of reservation diminishment, it sometimes refers implicitly or explicitly to the non-Indians’ justifiable expectations, and Philip Frickey has argued that a concern with non-Indians’ justifiable expectations drives Court decisions about tribal jurisdiction even when the Court does not express that concern directly. The non-Indians’ assumed expectations arise from the fact that, when Congress opened up reservations to non-Indians during the allotment era, its assumption, and presumably that of non-Indians who purchased lands on reservations during that period, was that the reservations would disappear due to the federal government’s assimilationist policies, along with the tribes who governed them. To refute the idea that such non-Indian expectations were justifiable, I examine historical newspaper articles and other historical sources regarding the opening up of reservations to non-Indian purchasers, specifically focusing on articles relating to cessions by the Sioux Nation and especially the Cheyenne River Sioux Tribe. Such sources suggest that non-Indian purchasers were on notice, in at least some cases, of a potential violation of tribal rights in the opening of portions of reservations to non-Indian settlement. Based on my argument that “justifiability” encompasses both reasonableness and a notion of justice, this information is used to show that the non-Indian purchasers’ presumed expectations about the disappearance of reservations were not justifiable because the purchasers had notice in many cases that lands were unjustly being taken from the Sioux Nation and other tribes. If, as I will argue, non-Indian expectations of tribal disappearance were unjustifiable, such expectations should not be given weight in determinations of tribal jurisdiction today.

Commentary: Tribes Lead Efforts to Implement UN Declaration

by Robert T. Coulter*

Photo for Robert T. Coulter
Robert T. Coulter is Executive Director of the Indian Law Resource Center. He is a member of the Citizen Potawatomi Nation and has more than 30 years of experience in the field of Indian law.

It has been just a year since President Obama announced the Administration’s support for the UN Declaration on the Rights of Indigenous Peoples and promised action to implement at least some of those rights.  Across the country, tribal governments are seizing the Declaration and using it creatively to protect their lands and resources, and especially their rights to cultural and sacred sites.

For example, the Navajo Nation has used the Declaration in its efforts to protect the San Francisco Peaks, and the Seneca Nation has pointed out Article 37 (“Indigenous peoples have the right to the recognition, observance and enforcement of treaties”) in its efforts to resolve a 60-year occupation of Seneca territory by the New York State Thruway that violates the 1794 Treaty of Canandaigua. Continue reading

Forthcoming Book on ICWA by Barbara Atwood

Barbara Atwood, a prominent commentator on the Indian Child Welfare Act, soon will be publishing her book, “Children, Tribes, and States: Adoption and Custody Conflicts over American Indian Children” with Carolina Academic Press. She has posted the first chapter of the book on SSRN.

Here is the abstract:

This Introduction to Children, Tribes, and States: Adoption and Custody Conflicts over American Indian Children (Carolina Academic Press forthcoming 2010) provides an overview of the book but begins with the story of my representation of a Northern Cheyenne woman in a child custody dispute two decades ago – a professional experience that fueled my longstanding interest in child welfare and custody law affecting American Indian and Alaska Native children. The book examines the policies driving the Indian Child Welfare Act of 1978 against the backdrop of current ICWA controversies in state courts. In addition, it explores tribal-state competition in inter-parental custody disputes involving Indian children, a contentious arena that falls outside the purview of ICWA and implicates federal, state, and tribal jurisdictional premises. The book emphasizes the emotional and political costs of jurisdictional battles in both ICWA and non-ICWA cases. I propose jurisdictional guidelines for state and tribal courts that build on respect for one another’s legitimacy and competence. At the same time, I develop analytical frameworks to address Native children’s individualized identities, perspectives, and needs.

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.




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.