Dean Kronk Warner on Tribal Consultation and Consent

Matthew L.M. Fletcher

Elizabeth Ann Kronk Warner has posted “Sovereignty Over Box Checking: Effective Tribal Consultation Leading to Consent,” forthcoming in the Florida State University Law Review, on SSRN.

Here is the abstract:

In light of the federal government’s willingness to consider new methods of tribal consultation, this article builds on previous scholarly work by arguing that the goal of tribal consultation should be consent. This conclusion is buttressed by tribal treaty language, the federal trust relationship, and the dictates of the FPIC requirement. The federal government should adopt language suggesting that consent is the goal unless not legally possible. Federal officials must be educated on tribal sovereignty, treaties, and the federal trust relationship. Consultation must begin as soon as possible in the decision-making process. Tribes should be engaged to better understand how they wish to participate in consultation. Federal officials must collaborate with their tribal counterparts in a bilateral, respectful way. And, in addition to the federal government, it may also be in the best interest of third parties, such as corporations, to assist tribes and the federal government in finding effective and meaningful consultation, as failure to do so could prove costly. Incorporating these recommendations will hopefully move us away from the broken status quo toward meaningful, legal consultations leading to consent in most instances – promoting tribal sovereignty over box-checking.

Alex Pearl on Green Colonialism

Matthew L.M. Fletcher

M. Alexander Pearl has published “Green Colonialism: Sidelined While on the Front Lines” in the Case Western Reserve Journal of International Law.

An excerpt:

Environmental law and policy in the United States has historically ignored Native Nations as stakeholders or rights holders, thereby sidelining those Nations and forcing them to function as protestors rather than participants. This is a foundational error that tarnishes the otherwise well-intended policy underlying environmental protection of any sort. Both the international community and international rights associated with climate change must avoid these early missteps. There are additional benefits to treating Indigenous peoples as more than simply interest groups. In so many ways, Indigenous peoples represent the drivers and implementers of policy and contribute invaluable traditional ecological knowledge in understanding the interdependency and interconnectedness of the environment and communities. Across the globe, Indigenous peoples are on the front lines suffering from the effects of climate change, and they should have the opportunity to take a leading role in developing and protecting the newly identified U.N. Right to a Healthy Environment.

Upcoming USDA Consultation —Treaty Database and Self Determination

Matthew L.M. Fletcher

From the USDA Office of Tribal Relations:


Tribal Consultation: Expanding Tribal Self Determination Policies at USDA

Where: National Congress of American Indians Mid-Year
(Cherokee, N.C.) (Hybrid: In-person and virtual)

Caucus: May 23rd: 2:00 pm – 5:00 pm (ET)

The Indigenous Food and Agriculture Initiative will facilitate a Tribal Caucus on May 23 from 1-4 p.m. CST ahead of the USDA Consultations on Expanding Tribal Self Determination Policies during NCAI Mid Year, the week of June 3 at the Eastern Band Cherokee Indians. This caucus will be closed to federal staff, and registrants will have access to a briefing note that will cover the three topics.

Dates: Monday, June 3:
Forestry (1-4 p.m. EDT)
Register Here for Forestry Consultation

Monday, June 3:
Meat Inspections (4:30-7:30 p.m. EDT)
Register Here for Meat Inspections Consultation

Wednesday, June 5:
Food Sovereignty and Nutrition Programs (1-4 p.m. EDT)
Register Here for Food Sovereignty and Nutrition Consultation

RSVP: All attendees, including those attending in-person, must register/RSVP above. The Zoom link will allow you to choose “Virtual” or “In-Person.

Tribal Treaty Database Consultation and Listening Session
What: Tribal Treaty Database Consultation and Listening Session
Where: NCAI Midyear Convention, Cherokee, North Carolina
Room: 108
When: Wednesday, June 5, 2024
1:00 – 3:00PM ET
RSVP: Whether attending in person or remote please register at the following link: Tribal Consultation and Listening Session on USDA-DOI Treaty Database ZoomGov registration

 

Updated information here, Tribal Consultations | USDA

Student Note on Hawai’ian Water Law after the Wildfires

Matthew L.M. Fletcher

The Harvard Law Review has published “Kānāwai From Ahi: Revitalizing The Hawai‘i Water Code in the Wake of the Maui Wildfires.” PDF

An excerpt:

Native Hawaiians have been skeptical of corporate landowners’ alleged concerns over disaster preparedness and characterization of traditional water rights. They blame the prioritization of corporate water interests, the privatization of water, and the harms of colonialism for the severity of the fires. And they worry that Lahaina’s destruction could be used to furtively pass “unpopular laws and policies” that prioritize commercial uses and exacerbate political inequality.
As Chandler-‘Īao’s box of water-permit applications illustrates, the Maui fires represent an inflection point for Hawaiian water law. But we did not arrive at this point overnight. Rather, the fires were the byproduct of a century of colonialism that imposed a resource-management regime that razed the environment and externalized its harms on kānaka maoli. Because of this legacy, Maui was “a ticking time bomb” for wildfires. When it is remembered that the ancient Hawaiian system of watershed management was sustainable before it was ravaged by colonialism, Maui’s current state is even more heart wrenching.

CFC Allows Some Navajo Claims to Proceed in Trust Breach Suit

Matthew L.M. Fletcher

Here are the materials in Navajo Nation v. United States (Fed. Cl.):

7 Motion to Dismiss.pdfDownload
12 Response.pdfDownload
15 Reply.pdfDownload
20 Federal Supplemental Brief.pdfDownload
21 Navajo Supplemental Brief.pdfDownload
Navajo Nation v. United States (CFC 2024) MTD opinion.pdfDownload

Complaint here.

Elena Baylis on NAGPRA and Looted Cultural Objects

Matthew L.M. Fletcher

Elena A. Baylis has posted “Looted Cultural Objects,” forthcoming in the Columbia Law Review Forum, on SSRN. Here is the abstract:

In the United States, Europe, and elsewhere, museums are in possession of cultural objects that were unethically taken from their countries and communities of origin under the auspices of colonialism. For many years, the art world considered such holdings unexceptional. Now, a longstanding movement to decolonize museums is gaining momentum, and some museums are reconsidering their collections. Presently, whether to return such looted foreign cultural objects is typically a voluntary choice for individual museums to make, not a legal obligation. Modern treaties and statutes protecting cultural property apply only prospectively, to items stolen or illegally exported after their effective dates. But while the United States does not have a law concerning looted foreign cultural objects, it does have a statute governing the repatriation of Native American cultural items and human remains. The Native American Graves Protection and Restoration Act requires museums to return designated Native American cultural objects to their communities – even if they were obtained before the law went into effect. This statute offers a valuable model for repatriating foreign cultural objects that were taken from formerly colonized peoples.

North Dakota Flips Argument at Supreme Court in Seeking to Overturn Redistricting Win for MHA Nation

Matthew Campbell

To defend a challenge to a North Dakota State House subdistrict that the North Dakota Legislature approved in 2021, the the Mandan, Hidatsa, and Arikara (“MHA”) Nation intervened as a defendant to support North Dakota.  After MHA Nation and the state successfully won summary judgment in the district court, North Dakota is now asking the Supreme Court to vacate the state’s (and the MHA Nation’s) win in the lower court.

Here is the jurisdictional statement from the Plaintiffs.

Here is MHA Nation’s Motion to Dismiss or Affirm.

And here is North Dakota’s Response.

Media coverage:

North Dakota changes course on tribal redistricting case, asks US Supreme Court to rule – InForum | Fargo, Moorhead and West Fargo news, weather and sports

North Dakota’s 180-Degree Turn in Redistricting Case Sparks Outcry from MHA Nation | Currents (nativenewsonline.net)

More here.