⚖️Native American Legal Studies Unit 14 – Native American Law & Policy: Future Trends

Historical Context

• Native American tribes have a unique legal status as sovereign nations within the United States, with a complex history of treaties, laws, and court decisions shaping their relationship with the federal government
• The Marshall Trilogy of Supreme Court cases in the early 19th century (Johnson v. M'Intosh, Cherokee Nation v. Georgia, and Worcester v. Georgia) established the foundational principles of federal Indian law, including the doctrine of discovery, tribal sovereignty, and the trust responsibility of the federal government
  • These cases recognized tribes as "domestic dependent nations" with inherent sovereignty, but subject to the ultimate authority of the federal government
• The Indian Removal Act of 1830 and the subsequent Trail of Tears resulted in the forced relocation of many Native American tribes from their ancestral lands to designated Indian Territory (present-day Oklahoma), highlighting the power imbalance between the federal government and tribal nations
• The General Allotment Act of 1887 (Dawes Act) aimed to assimilate Native Americans into mainstream society by dividing tribal lands into individual allotments, leading to significant land loss and the erosion of tribal sovereignty
• The Indian Reorganization Act of 1934 marked a shift in federal policy towards greater tribal self-governance and the restoration of tribal lands, although its implementation was limited by funding constraints and resistance from some tribes

Key Legal Frameworks

• The trust responsibility is a legal obligation of the federal government to protect tribal lands, resources, and the well-being of Native American tribes, stemming from the historical treaties and the unique relationship between the federal government and tribal nations
• Tribal sovereignty refers to the inherent right of Native American tribes to govern themselves, manage their internal affairs, and maintain their distinct political, cultural, and economic systems within the boundaries of their reservations
  • Tribal sovereignty is not absolute and can be limited by federal law or the consent of the tribe itself
• The Indian Self-Determination and Education Assistance Act of 1975 (ISDEAA) allows tribes to enter into contracts with the federal government to assume control over programs and services that were previously administered by federal agencies, promoting greater tribal self-governance and decision-making
• The Indian Child Welfare Act of 1978 (ICWA) seeks to protect the best interests of Native American children by giving tribal governments a role in child custody proceedings and prioritizing placement with tribal families, recognizing the importance of preserving cultural ties
• The Native American Graves Protection and Repatriation Act of 1990 (NAGPRA) requires federal agencies and institutions that receive federal funding to return Native American cultural items, including human remains, funerary objects, and sacred objects, to lineal descendants or culturally affiliated tribes

Current Policy Landscape

• The federal government's trust responsibility to Native American tribes is executed through various agencies, such as the Bureau of Indian Affairs (BIA), the Indian Health Service (IHS), and the Bureau of Indian Education (BIE), which provide services and support to tribal communities
• The Tribal Law and Order Act of 2010 (TLOA) aims to improve public safety on tribal lands by increasing tribal law enforcement authority, enhancing sentencing options for tribal courts, and improving coordination between tribal, federal, and state agencies
• The Violence Against Women Reauthorization Act of 2013 (VAWA) includes provisions that restore tribal jurisdiction over non-Native perpetrators of domestic violence, dating violence, and violation of protection orders on tribal lands, addressing a significant jurisdictional gap in the protection of Native American women
• The Indian Gaming Regulatory Act of 1988 (IGRA) provides a regulatory framework for tribal gaming operations, allowing tribes to establish casinos and other gaming facilities on tribal lands as a means of economic development and self-sufficiency
  • Tribal gaming has become a significant source of revenue for many tribes, but it has also raised concerns about the social and economic impacts on tribal communities and surrounding areas
• The Indian Health Care Improvement Act (IHCIA), originally enacted in 1976 and permanently reauthorized as part of the Affordable Care Act in 2010, aims to improve the health status of Native Americans by providing comprehensive health care services through the Indian Health Service and tribal health programs

Emerging Issues and Challenges

• Climate change poses significant threats to Native American communities, particularly those in coastal areas or reliant on natural resources for subsistence and cultural practices, necessitating the development of adaptation and mitigation strategies that respect tribal sovereignty and traditional knowledge
• The opioid epidemic has disproportionately affected Native American communities, highlighting the need for culturally appropriate prevention, treatment, and recovery services that address the unique social, economic, and historical factors contributing to substance abuse in tribal communities
• The protection of sacred sites and cultural resources remains a critical issue for Native American tribes, as development projects, resource extraction, and tourism can threaten the integrity and accessibility of these sites, requiring the strengthening of consultation processes and the incorporation of tribal perspectives in decision-making
• The Murdered and Missing Indigenous Women and Girls (MMIWG) crisis has gained increasing attention in recent years, with high rates of violence against Native American women and the need for improved data collection, law enforcement response, and support services for victims and families
  • The complex jurisdictional issues between tribal, state, and federal authorities can hinder effective investigations and prosecutions of these cases
• Economic development and diversification remain ongoing challenges for many Native American communities, as they seek to balance the preservation of cultural values and traditional practices with the need for sustainable job creation, infrastructure improvements, and access to education and training opportunities

Technological Impacts

• The expansion of broadband internet access in tribal communities has the potential to bridge the digital divide, improve educational opportunities, and support economic development, but it also requires significant investments in infrastructure and digital literacy programs
• Telemedicine and remote health care services can help address the persistent health disparities faced by Native American communities, particularly in rural and remote areas, by increasing access to specialty care and mental health services
  • The COVID-19 pandemic has accelerated the adoption of telemedicine in tribal health systems, but challenges remain in terms of technology access, provider training, and reimbursement policies
• Geographic Information Systems (GIS) and remote sensing technologies can support tribal environmental management, natural resource planning, and the protection of cultural sites by providing detailed spatial data and analysis tools
• Social media and digital platforms have become important tools for Native American activists, artists, and community leaders to raise awareness about issues affecting their communities, preserve cultural heritage, and build networks of support and solidarity
  • However, the spread of misinformation and the exploitation of Native American cultural imagery online also pose challenges for tribal communities
• The digitization of tribal records and archives can help preserve and make accessible important historical and cultural information for future generations, but it also raises questions about data sovereignty, intellectual property rights, and the appropriate use and sharing of sensitive information

Sovereignty and Self-Determination

• The United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), adopted in 2007, affirms the rights of indigenous peoples to self-determination, self-governance, and the preservation of their cultural identities and traditional practices, providing an international framework for the recognition of tribal sovereignty
• The development of tribal courts and the exercise of tribal jurisdiction are essential aspects of tribal sovereignty, allowing tribes to maintain order, resolve disputes, and enforce laws within their communities in accordance with their own cultural values and traditions
  • However, the limited resources and capacity of many tribal courts can hinder their effectiveness and ability to address complex legal issues
• The protection of tribal natural resources, including water rights, hunting and fishing rights, and mineral resources, is crucial for the economic and cultural well-being of Native American communities and the exercise of tribal sovereignty over their lands and resources
• The repatriation of ancestral lands and the restoration of tribal land bases through land transfers, land buybacks, and the resolution of land claims are ongoing efforts to strengthen tribal sovereignty and self-determination
  • The Land Buy-Back Program for Tribal Nations, established as part of the Cobell v. Salazar settlement, has helped consolidate fractionated land interests and restore tribal land bases
• Tribal-state relations and the negotiation of compacts and agreements on issues such as gaming, taxation, and law enforcement are important aspects of tribal sovereignty, requiring the recognition of tribes as equal partners and the respect for their inherent rights and authorities

Future Policy Directions

• The strengthening of tribal consultation policies and the meaningful engagement of Native American tribes in decision-making processes that affect their communities and resources will be critical for the future of tribal sovereignty and self-determination
• The continued support for tribal self-governance programs and the expansion of the Indian Self-Determination and Education Assistance Act (ISDEAA) to include more federal programs and services can help build tribal capacity and promote locally-driven solutions to the challenges faced by Native American communities
• The development of sustainable economic development strategies that balance the need for job creation and revenue generation with the preservation of cultural values and environmental stewardship will be essential for the long-term well-being of tribal communities
  • This may include the diversification of tribal economies beyond gaming, the support for Native American entrepreneurship and small businesses, and the development of renewable energy projects on tribal lands
• The addressing of the persistent disparities in health, education, and infrastructure in Native American communities will require the sustained commitment of federal resources and the collaboration between tribal, federal, and state agencies to develop and implement effective policies and programs
• The incorporation of traditional knowledge and cultural practices into the development and implementation of policies and programs affecting Native American communities can help ensure their cultural relevance, effectiveness, and sustainability
  • This may include the integration of traditional ecological knowledge in natural resource management, the use of culturally-based interventions in health and social services, and the incorporation of Native languages and cultural teachings in education programs

Case Studies and Practical Applications

• The Navajo Nation's response to the COVID-19 pandemic showcases the importance of tribal sovereignty and self-governance in addressing public health crises, as the tribe implemented strict lockdown measures, conducted widespread testing and contact tracing, and distributed essential supplies and resources to its members
• The Standing Rock Sioux Tribe's opposition to the Dakota Access Pipeline (DAPL) highlights the ongoing struggles of Native American tribes to protect their lands, waters, and cultural sites from the impacts of energy infrastructure projects and the importance of tribal consultation and free, prior, and informed consent in decision-making processes
  • The tribe's legal challenges and the widespread public support for their cause also demonstrate the power of grassroots activism and the growing awareness of environmental justice issues affecting Native American communities
• The success of the Oneida Nation of Wisconsin in diversifying its economy beyond gaming through the development of a robust agriculture and food processing industry, including the production of organic produce and the operation of a cannery and a cattle ranch, provides a model for sustainable economic development that aligns with tribal values and promotes self-sufficiency
• The Yurok Tribe's development of a comprehensive wellness court that integrates traditional cultural practices, such as talking circles and sweat lodge ceremonies, with evidence-based substance abuse treatment and mental health services, demonstrates the effectiveness of culturally-responsive approaches to addressing the opioid epidemic and promoting community healing
• The collaborative management of the Bears Ears National Monument by a coalition of five Native American tribes (Navajo Nation, Hopi Tribe, Ute Mountain Ute Tribe, Ute Indian Tribe, and Pueblo of Zuni) and the federal government represents a new model of shared stewardship and the recognition of tribal expertise and cultural connections to the landscape in the management of public lands