Tag Archives: Native Peoples Law
Sep 17, 2021 Bethany BergerLexNative Peoples Law
Hana E. Brown,
Who Is an Indian Child: Institutional Context, Tribal Sovereignty, and Race-Making in Fragmented States, 85
Am. Soc. Review 776 (2020), available at
SAGE.
The Indian Child Welfare Act (ICWA) is under attack, and legal scholars (including me) have written much about it. But being lawyers, we typically focus on judicial decisions, and within that set, on decisions with precedential impact. That makes sociologist Hana Brown’s Who Is an Indian Child: Institutional Context, Tribal Sovereignty, and Race-Making in Fragmented States a welcome intervention. By examining the different ways that social workers, state courts, and federal judges apply ICWA’s “Indian child” definition, Brown provides valuable insights not just on ICWA, but on race-making generally and the importance of institutional context in translating law into practice.
To be covered by ICWA, a child must be an Indian child as the statute defines it. The definition rests on tribal citizenship: a child must be either enrolled in a tribe, or be eligible for enrollment and have a biological parent who is enrolled. 25 U.S.C. § 1903(4). But social workers and courts have applied the definition through a racial lens and excluded children from coverage because they were not racially Indian enough. Exclusion denies children, families, and tribes ICWA’s protections for family preservation and tribal sovereignty. Continue reading "Institutions, “Indian-ness,” and ICWA Implementation"
Jul 24, 2020 Bethany BergerLexNative Peoples Law
What can Federal Indian Law offer public law as a whole? Supreme Court justices have famously dismissed Indian Law cases as “chickenshit” and “pee wee” cases, and scholars have worked for generations to justify the meager recognition of tribal sovereign interests within public law. Maggie Blackhawk’s wonderfully generative Federal Indian Law as Paradigm, however, convincingly argues that Indian law, far from an idiosyncratic backwater, is central to the history of public law in the United States and can provide valuable lessons for framing its future.
First, Blackhawk masterfully synthesizes the work of many scholars (including her own work on the Petitions Clause) to show the role federal Indian affairs has played in the history of government power. Indian affairs were central for the founding generation, figuring prominently in the debates over the Constitution and the early work of Congress and the Executive Branch. Concerns about foreign interference with tribal diplomacy, for example, inspired the first understanding that the Senate’s advice and consent role with respect to treaties included only approval after the fact rather than participation in negotiations. Continue reading "Re-Centering Federal Indian Law"
Jul 24, 2019 Bethany BergerLexNative Peoples Law
States are the paradigmatic perpetrators of harms to indigenous rights, but this is changing. Increasingly, as Professor Sergio Puig points out, multinational corporations are the source of such harms, ranging from research extraction to commodification of indigenous knowledge and culture. Scholars and advocates typically turn to either domestic law or international human rights law to address these harms, and often treat international economic processes as themselves antithetical to indigenous rights. Professor Puig, however, convincingly lays out the ways that international economic law creates protections for indigenous rights, and analyzes needed enhancements for those protections. More radically, he argues that protecting indigenous rights is not contrary to economic globalization, but is core to justifying its legitimacy. International Indigenous Economic Law powerfully breaks down silos between human and indigenous rights and economic law, and will be valuable reading for scholars and advocates from these different fields.
Global economic development, Professor Puig shows, has left many indigenous peoples behind. While comprising only 5% of the world’s population, indigenous peoples make up 15% of the world’s poor, and a third of the world’s one billion “extremely poor.” Although their traditional territories encompass some of the earth’s most valuable resources, resource development more often leads to displacement and impoverishment than to indigenous prosperity. When indigenous law scholars have studied these harms, they turn to human rights law to solve them, and often treat economic development as a threat. Professor Puig, however, argues that this focus ignores valuable tools provided by economic law, including tools that are more easily enforced against non-state actors than traditional human rights instruments. International economic scholars, in contrast, largely ignore indigenous rights, or at best treat them as exceptions to international economic law. But, Professor Puig demonstrates, international economic instruments themselves have long paid attention to indigenous rights, often in surprisingly progressive ways. Continue reading "Indigenous Harms from Global Development—Can International Economic Law Provide a Cure?"
Jul 6, 2018 Bethany BergerLexNative Peoples Law
The United States Constitution—that great experiment in creating a “more perfect union,” more democratic, egalitarian, and libertarian—was founded in sin. These sins include, among others, slavery and political exclusion of people of color and women of all races. They also include the erasure of sovereignty required to found a country on a continent occupied by existing indigenous sovereigns. Many before Seth Davis, including Milner Ball, Philip Frickey, Nell Newton, David Wilkins, and Robert Williams, have wrestled with this founding constitutional evil. Several things, however, distinguish Professor Davis’s American Colonialism and Constitutional Redemption. The result is an important addition to the canon of federal Indian law.
First, Professor Davis engages with theorists outside federal Indian law to an unusual degree. Professor Davis specifically takes on fiduciary theorists like Evan J. Criddle and Evan Fox-Decent, but also engages with other constitutional theorists like Sanford Levinson, Aziz Rana, and Jack Balkin; political theorists like Carole Pateman, Jennifer Nedelsky, and Robin West; race theorists like Dorothy Roberts and Miguel de la Torre; and even political figures like President Barack Obama and Reverend Adam Clayton Powell Sr. While other scholars of federal Indian law have written noteworthy works in other areas, few have so deftly connected their work to debates outside the field. The result is an article that helps to bring the law of Native people into mainstream debates, and out of the niche in which it is sometimes cabined. Continue reading "Can the Constitutional Sin of Colonialism be Redeemed?"
Dec 19, 2017 Bethany BergerLexNative Peoples Law
In 2016, many thousands of Native people and their supporters traveled from across the country to protest construction of the Dakota Access Pipeline in North Dakota. It was the greatest display of unified Indian activism since the standoffs at Alcatraz and Wounded Knee. While Dakota Access set dogs on the protesters and North Dakota almost enacted a statute that would immunize those injuring protesters from liability, the federal government had a role as well. Because the pipeline ran over a section of federally-owned land, the U.S. had to grant an easement to build it, and needed to consider the impact on the Standing Rock Sioux, including sacred sites, drinking water, and treaty rights, before doing so. In the waning days of the Obama Administration, the EPA determined that it had not sufficiently considered all factors, and decided to delay the permit. In the first few days of the Trump Administration, the EPA reversed, ruling that the pipeline could go forward. After the pipeline was built (and already had its first leaks), a federal district court held that the U.S. had not sufficiently considered treaty rights and environmental concerns. But the court refused to halt the pipeline while considering the remedy, so gas continues to flow, and small leaks continue to occur.
As at Standing Rock, the federal government has tremendous power over the things most important to Native people. Five decades into the self-determination era, tribes still depend on the federal government to approve, regulate, or fund what tribes do with their businesses, land, natural resources, sacred sites, and police and social welfare services. The administration of this federal role is in these matters is far from the common law doctrines that occupy most Indian law professors. Not so for Professor Kevin Washburn. Washburn recently returned to academia after several years as the Assistant Secretary of Indian Affairs, where he struggled first hand with the factors governing federal decision-making. What the Future Holds: The Changing Landscape of Federal Indian Policy benefits from this experience with an unusually nuanced and informed perspective on the federal administration of the federal-tribal relationship. Continue reading "The Federal-Tribal Relationship: The View from the Executive Branch"
Aug 9, 2016 Bethany BergerLexNative Peoples Law
In the concentration camps of the Holocaust, a pink triangle marked gay men’s uniforms to indicate why they had been singled out for imprisonment and death. Beginning in the 1970s, LGBT activists reclaimed the pink triangle, transforming it into a symbol of pride and a demand for respect. Like the Nazi use of the pink triangle, the US Supreme Court’s 1903 decision in Lone Wolf v. Hitchcock represents some of the worst oppression of tribal nations in the United States. Rejecting a challenge to involuntary allotment of tribal lands, Lone Wolf declared that the United States had “plenary power” over Indian tribes, and this power was a “political one, not subject to be controlled by the judicial department of the government.” The case was immediately decried as the Dred Scott for Indians, but unlike Dred Scott, much of Lone Wolf remains good law.
In her provocative new paper, Plenary Power, Political Questions, and Sovereignty in Indian Tribes, Michalyn Steele argues for a partial reclaiming of the plenary power and political question doctrines announced in Lone Wolf and other cases. As Steele notes, the doctrines have been “roundly, and rightly” criticized as leaving tribes “vulnerable to unchecked political whim.” In the limited form Steele proposes, however, the doctrines may be a useful check to what she calls the “heads I win, tails you lose” bind tribes face in the courts today. Continue reading "Reclaiming Lone Wolf?"
May 26, 2015 Bethany BergerLexNative Peoples Law
Federal Indian law fits awkwardly in American constitutional doctrine, so much so that Justice Clarence Thomas has declared it “to say the least, schizophrenic.” Tribal nations are sovereign to some degree—they are not bound by the U.S. Constitution, possess substantial sovereign immunity, have police departments, courts, and broad regulatory powers, and hundreds of U.S.—tribal treaties still influence federal law. Yet the federal government has tremendous power over tribes and their members, states have significant jurisdiction in their territories, and tribal jurisdiction over non-tribal citizens is limited. Only a few words in the Constitution directly reference Indians or tribes at all. Obsolete phrases in the Apportionment Clause and Fourteenth Amendment exclude “Indians not taxed” from the population for legislative apportionment. More importantly, the Indian Commerce Clause grants Congress the power to “regulate commerce . . . with the Indian tribes.” Modern Supreme Court decisions locate Congress’ broad authority in Indian affairs in the Clause; more recently, Justice Thomas and some scholars have argued that this power is narrowly limited to trade; while other scholars argue that the Clause provides a constitutional basis for both state exclusion from Indian affairs and tribal sovereignty.
In a groundbreaking new article, Beyond the Indian Commerce Clause, Gregory Ablavsky rejects all sides of this debate. Ablavsky convincingly argues that although a narrow construction of commerce is not consistent with original understanding, the broader implications of the Indian Commerce Clause are deliberately ambiguous. Following an emerging approach to constitutional history, Ablavsky looks beyond the words of the Clause and its limited history to a greater range of constitutional actors and a longer temporal context. Canvassing statements and correspondence by the Washington administration, state officials, and others, Ablavsky argues that the founders located the Indian affairs power in the general constitutional status of the United States, and particularly the interplay of the nation’s military, territorial, commercial, and diplomatic affairs powers. (For the ways that concerns about Indian affairs affected the formulation of these constitutional powers, see Ablavsky’s The Savage Constitution, 63 Duke L.J. 999 (2014).) Continue reading "Not So Schizophrenic: The Founders’ Understanding of Indian Affairs and the Constitution"
