Category Archives: Indian/Native American

New Mini-Report: Economic Outcomes For Indigenous Peoples In The United States Following The Great Recession

New Mini-Report: Randall Akee, Economic Outcomes For Indigenous Peoples In The United States Following The Great Recession, IRP Focus on Poverty, Mar. 2022.

New Article: Scaling Commercial Law in Indian Country

New Article: Marc Lane Roark, Scaling Commercial Law in Indian Country, 8 Tex. A&M L. Rev. 89 (2020). Abstract below:

How do you drive economic enterprise in a financial desert? Indian tribes, academics, economists, and policy makers have considered the means and methods for energizing economic growth for forty years. Efforts such as the creation and promotion of the Model Tribal Secured Transactions Act (“MTSTA”) promise much toward creating conditions that would gather financial opportunity to tribal regions that experience poverty at a strikingly higher rate than any other place in the United States. And yet, while the law has been available for more than ten years, tribes have been reticent to adopt it. This Article fills the vacuum in the literature around the promise of uniform laws in Indian Country by describing the inherent tension that exists between downscaling uniform laws into tribal contexts and the localism that seeks to preserve localized values. This Article argues that tribal choices to accept uniformity or reject uniformity in these areas are built around a combination of formal associations and organic relationships designed to create “institutional thickness” in the face of other scarce resources.

New Article: Uncomfortable Truths about Sovereignty and Wealth

New Article: Matthew L. M. Fletcher, Uncomfortable Truths about Sovereignty and Wealth. SSRN Dec. 2021. Abstract below:

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.”

Op-ed: Tribal Housing Funding a Critical Component of Build Back Better

_DSC0604Op-ed: Sonya Acosta, Tribal Housing Funding a Critical Component of Build Back Better, Center on Budget and Policy Priorities Off the Charts Blog (Dec. 9, 2021).

New Article: Systemic Racism and the Dispossession of Indigenous Wealth in the United States

New Article: Matthew L. M. Fletcher, Systemic Racism and the Dispossession of Indigenous Wealth in the United States, SSRN. Abstract below:

This paper was presented as part of the Federal Reserve Bank’s event, “Racism and the Economy: Focus on the Wealth Divide.”

In relation to the Indigenous people and nations within (and without) its borders, the United States’ national policy was geared toward efficiently and completely dispossessing Indian people and tribes of their lands and resources. For the most part, that national policy prevailed, although the efforts were far from efficient and far from complete. This section surveys the dispossession of Indigenous peoples and nations of their wealth. Structural racism played a critically important role in the dispossession of Indigenous peoples of their wealth throughout the 19th and 20th centuries.

New Article: A Lineage of Family Separation

New Article: Anita Sinha, A Lineage of Family Separation, forthcoming Brooklyn L. Rev. Abstract below:

Family separation is a practice rooted in U.S. history. In order to comprehensively examine the most recent execution of separating children from their parents under the Trump Administration’s “zero tolerance” policy, one must follow and understand this history. That is what this Article does. Examining the separation histories of enslaved, Indigenous, and immigrant families, it offers critical context of a reoccurring practice that has had devastating effects largely on communities of color, and across generations. By contextualizing the separation of migrant families crossing the U.S.-Mexico border under zero tolerance, this Article identifies narratives from colonial times to the present that consistently rely on racism, xenophobia, and paternalism to justify a practice that otherwise is extreme in its inhumanity.

These justification narratives are juxtaposed with counter-stories that resist and challenge the separation of families, including by humanizing those impacted and articulating the profound harm it causes to children, parents, and communities. These stories have been told through first-hand narratives, Congressional testimonies, research studies, media reports, and facts and allegations in lawsuits. Narratives describing the harm caused by separating families are a powerful element of putting the practices to an end. The historical record suggests that these narratives have typically gained potency in specific socio-political contexts that rendered them compelling enough to overcome the justifications for specific family separation policies.

Although these practices were brought to an end, systemic reform has been elusive. In the case of Indigenous family separation, legislation enacted to cease the practice failed to bring about substantial change, and has been diluted by persistent legal challenges. Historical family separation practices against enslaved and immigrant families have been replaced with systems that separate families for prolonged times or permanently. These include the present-day U.S. criminal legal and immigration systems, where the government separates children from their parents on a substantial scale as a collateral consequence of mass incarceration and widespread detention and deportation, with little to no scrutiny. The outrage that ended zero tolerance has not extended to these ongoing examples of family separation. In order to meaningfully address these practices, counter-stories urging the valuation of family integrity must be aligned with a societal will to challenge systems that, through racialized justifications, continue to separate mostly marginalized children from their parents.

New Article: “Education’s Deep Roots: Historical Evidence for the Right to a Basic Minimum Education”

New Article: Caroline A. Veniero, Education’s Deep Roots: Historical Evidence for the Right to a Basic Minimum Education, 88 U. Chi. L. Rev. 981 (2021). Abstract below:

For decades, the U.S. Supreme Court has left open the question whether the U.S. Constitution protects a right to some amount of education. While such a right is not specifically enumerated in the Constitution, advocates have long argued for the existence of an implicit, fundamental right to a basic minimum education under the Due Process Clause of the Fourteenth Amendment. Recognition of such a right requires grappling with the Supreme Court’s substantive due process jurisprudence. To be a fundamental right, one requirement is that a proposed right have deep roots in U.S. history and tradition. This Comment examines whether the right to a basic minimum education—defined as basic literacy—is deeply rooted.

While courts differ in how they analyze whether a right is deeply rooted, they all generally view the time around the Fourteenth Amendment’s enactment as a relevant historical consideration. With a focus on that time period, this Comment analyzes two case studies: the Bureau of Refugees, Freedmen, and Abandoned Lands—or “Freedmen’s Bureau”—and the Bureau of Indian Affairs. In both cases, the federal government perceived a gap in local provision of education and responded through these agencies with support for literacy education. In serving as a backstop to local educational failures, the federal government’s actions ensured access to a basic literacy education. This pattern of behavior provides support for the notion that the right to a basic minimum education is deeply rooted.

New Article: Decolonizing Indigenous Migration

Angela R. Riley & Kristen A. Carpenter, Decolonizing Indigenous Migration, 109 Cal. L. Rev. 63 (2021). Abstract Below:

As global attention turns increasingly to issues of migration, the Indigenous identity of migrants often remains invisible. At the U.S.-Mexico border, for example, a significant number of the individuals now being detained are people of indigenous origin, whether Kekchi, Mam, Achi, Ixil, Awakatek, Jakaltek or Qanjobal, coming from communities in Venezuela, Honduras, Guatemala and other countries. They may be leaving their homelands precisely because their rights as Indigenous Peoples, for example the right to occupy land collectively and without forcible removal, have been violated. But once they reach the United States, they are treated as any other migrants, without regard for their status or experience as indigenous peoples. In a recurring set of events, indigenous detainees have been presented translation and legal services in Spanish, when they actually speak only an indigenous language, in cases associated with the separation of children from their families and even the death of individuals unable to describe their health care situation to service providers.

In this article, we argue that accounting for the experience of Indigenous Peoples is critical to advancing a human rights approach to migration, and addressing the legacies of conquest and colonization that undergird state policies on territorial sovereignty and border regulation. On the one hand, Indigenous Peoples like other migrants are often fleeing situations of economic, social, and political unrest in their countries. They seek personal and familial security, economic mobility, and political freedom. On the other hand, as “peoples” with political and cultural rights to self-determination and territory, indigenous peoples experience discrimination and violence not only in their individual capacities, but also with respect to their survival as collective entities. Moreover, Indigenous worldviews and relationships with traditional landscapes often predate, by hundreds or thousands of years, the contemporary boundaries of states. For example the Haudenosaunee people of North America recognize their homeland as “Turtle Island” a place not inherently defined by current borders between the U.S. and Canada. The Yaqui and Tohono O’dham peoples’ community and ceremonies stretch across the much contested Mexico-U.S. border, such that their lives and lands have become militarized zones. Family members, sacred sites, subsistence habitats, and migration patterns are similarly dispersed across current socio-political fault lines.  

Accordingly, the UN Declaration on the Rights of Indigenous Peoples recognizes that when indigenous peoples are “divided by international borders,” they “have the right to contacts, relations and cooperation, including activities for spiritual, cultural, political, economic and social purposes, with their own members as well as other peoples across borders.” Other articles define the right to be from violence, to keep families intact, and to maintain an Indigenous identity without reference to national identity or citizenship status. But recognition and realization of these rights raises difficult questions – for example, if Indigenous cultural identity is tied to land and territory, do Indigenous Peoples retain their rights following relocation and displacement? As societies are more mobile, are concepts of individual identity and collective self-determination also mobile, do they go with indigenous peoples when they cross borders whether internal or external to nation-states? Whose obligation is it to effectuate such rights? Can the situation of Indigenous Peoples as migrants be meaningfully addressed through legal regimes of asylum and refugee law – or must they implicate international diplomacy and norms of state-indigenous relations. These are other questions are left largely untouched by federal law in the United States as well as the 2018 Global Compact on Migration. By focusing on the situation of Indigenous Peoples, this article pushes migration law, both in theory and practice, to consider more fully its colonial origins and impacts, and incorporate a broader concept of individual and collective human rights going forward.

New Note: Tribal Power, Worker Power: Organizing Unions in the Context of Native Sovereignty

Note, Tribal Power, Worker Power: Organizing in the Context of Native Sovereignty, 134 Harv. L. Rev. 1162 (2021). Introduction below:

Since 1990, employees of businesses owned and operated by Native nations have increasingly sought to amplify their voices in the workplace through union representation. Many of these (primarily non-Native) workers have invoked the protections of the National Labor Relations Act (NLRA). The protections of federal labor law have been crucial to building worker power in private-sector enterprises. But to many tribal governments, this invocation of a federal statute is an affront to the inherent sovereignty of Native nations.

Labor organizing in tribal enterprises uncovers a seemingly intractable tension between two classes of power-building institutions: unions and tribes. Unionizing workers, often members of non-Native minority groups, feel disenfranchised in their workplaces, while Native governments perceive intervention into their internal affairs as threatening their inherent sovereignty — sovereignty that has been weakened through congressional action and Supreme Court decisions. This tension is especially acute in the ideological context of the modern labor movement, which casts unionism as rooted in values of progressivism and social justice. This Note attempts to ameliorate that tension by advocating a labor movement that builds worker power under the protections of tribal, rather than federal, law.

This Note proceeds in four parts. Part I sets out the historical back- drop, while Part II outlines the doctrinal context. A question central to many tribal-labor conflicts is whether general federal regulatory statutes, including the NLRA, apply to Native nations. The Supreme Court has addressed this question only in dictum, and lower courts are divided. Part III argues that, under federal Indian law doctrine, general federal labor statutes do not apply to tribally owned businesses. As several scholars have articulated, interpreting federal labor law as inapplicable to these businesses is consistent with Supreme Court precedent, the text and history of the NLRA, and the nature of tribal enterprise. Part IV examines the implications of this argument. Drawing on examples of existing tribal labor-relations schemes, this Part encourages worker advocates to see organizing in tribal enterprises as an opportunity to amplify workers’ voices while honoring Native sovereignty. In the absence of federal regulation, unions and Native nations may find common ground as institutions dedicated to building power for their members.

New Article: Tribal Power, Worker Power: Organizing Unions in the Context of Native Sovereignty

New Article: Note, Tribal Power, Worker Power: Organizing Unions in the Context of Native Sovereignty, 134 Harv. L. Rev. 1162 (2021)