Tag Archives: Native Peoples Law

Native Hawaiian Homelands for Native Hawaiians

Mar 5, 2024 Aila HossNative Peoples LawAdd a Comment

Professor Troy Andrade chronicles the distressing hundred-year history of the Hawaiian Homes Commission Act in his article, Belated Justice: The Failures and Promise of the Hawaiian Homes Commission Act, published in the American Indian Law Review. This history is marked by racism, the indulging of non-Native business interests, and political retaliation. Professor Andrade describes it as “the journey of a people forced to demand, decade after decade, what they were entitled to by law.”

Prior to European contact, Native Hawaiian social and political structures were based on chiefdoms with communal land ownership and management. European contact, the Western-backed establishment of the Kingdom of Hawai’i, and American colonization disrupted traditional land systems and displaced Native Hawaiians from their homelands. The United States has acknowledged that the annexation of Hawai’i as a territory included the transfer of lands from Native Hawaiians without consent or compensation.

The Hawaiian Homes Commission Act was enacted in 1921 in an effort to “rehabilitate” now impoverished Native Hawaiians. It placed over 200,000 acres of land into trust for Native Hawaiians with a blood quantum of fifty percent or more. With Hawaii’s statehood in 1959, administrative responsibilities under the Act were transferred from the federal government to the state. The federal government maintains some oversight authority.

Via administrative application, Native Hawaiians with the requisite blood quantum apply for a ninety-nine-year homestead lease within the trust lands. As of 2022, 9,967 leases are in place and 28,971 Native Hawaiians have 46,307 pending lease applications. Only a fraction of the trust lands available are subject to a lease. The administration of the Act has been marked by mismanagement, litigation, and contentious political conflicts. All the while, most of the beneficiaries of the trust lands have received no benefit from the trust corpus.

Although only 16% of the Act’s trust lands are located on Maui, the recent wildfires devastating the island puts the issue of land management across the state in further perspective. Investigations reveal that unmaintained grasslands contributed to the rapid spread of the fire, the deadliest in the US in over one hundred years. Ownership of the originating lands rests primarily with three parties: the state, the Bishop educational trust, and a local developer. The unmaintained grasses were a well-known problem exacerbated by lack of government mitigation.

In addition to the tragedy of reported deaths of 100 people, thousands of people have been displaced. Prior to the fires, thousands of Hawaiians were experiencing housing insecurity with Native Hawaiians being overrepresented vis-à-vis other groups. The state ranks first in the country for housing costs and ranks fifth in its rate of homelessness. and first in housing costs. Unsurprisingly, this is largely driven by out-of-state and investment purchases of a limited housing supply.

The wildfires are putting even more stress on an already unstable housing system. And many are looking at the thousands of charred acres as a prime real estate investment opportunity. The Governor’s office issued an emergency proclamation prohibiting unsolicited offers to purchase of lands in the affected zip codes. This has not stopped offers from coming in.

In his article, Professor Andrade proffers a series of recommendations for the just administration of the Act. These include (1) mandatory education regarding the Act’s requirements and the trust responsibility for all stakeholders including government employees and state and federal lawmakers; (2) adequate funding of the Hawaiian Home Lands program by the state and federal governments; (3) active federal involvement its oversight responsibilities; (4) legislative action to modify the high blood quantum eligibility threshold; and (5) active consultation with Native Hawaiians. Such recommendations would provide a robust foundation for supporting Native Hawaiian access and stewardship of their homelands even outside the scope of the Act.

Even amongst Indigenous law teaching and scholarship, I’m disappointed to say my own included, Native Hawaiian law is often relegated to a single slide or footnote. The laws are different, yes, but the colonization and racism that underlies them are all too familiar. Righting the wrongs of Hawaiian land management requires a commitment to shine “the light of truth upon them.” Thanks to the research of Professor Andrade, I can make this commitment and speak to how the failings of the Hawaiian Homes Commission Act is not merely a Native Hawaiian or Indigenous peoples issue, but rather a human rights one.

Expanding the Constitutional Lens

Jul 13, 2023 Bethany BergerNative Peoples LawAdd a Comment

Debates over Founding Era constitutional understandings proliferate in scholarship and litigation. The understandings examined, however, are almost exclusively those of the white men who either drafted the constitution or could vote on its ratification. In We the (Native) People?, Professor Gregory Ablavsky and doctoral candidate Tanner Allread broaden this focus, uncovering what Indigenous people said and thought about the Constitution’s meaning. Like Mary Bilder’s recent article on the influence of Cherokee, Chickasaw, and Choctaw delegations’ visits to the constitutional convention in 1787,¹ and earlier works by Robert Clinton, Maggie Blackhawk, and Ablavsky himself,² the article confirms the influence of tribal actions on the Constitution and its interpretation. But in foregrounding Indigenous people’s perspectives, Ablavsky and Allread open a new window on those actions as well as on constitutional history and law.

The first contribution of the article is to identify pre-constitutional tribal-settler diplomacy as an important backdrop against which the Constitution was drafted and understood. As scholars like Robert Williams and Colin Calloway have shown, established rules, shaped by both Indigenous and English traditions, governed this diplomacy. These practices included both accepted rituals and norms of negotiation, reciprocity, and ongoing relationships that the English violated at their peril. Ablavsky and Allread dub this body of rules the “diplomatic constitution,” invoking the times’ definition of constitution as the practices, institutions, and discourses that disciplined governmental power. Influential founders, they show, like George Washington, Ben Franklin, James Madison, James Monroe, and Thomas Jefferson, would all have been familiar with this diplomatic constitution from their own experiences at negotiations with tribal nations.

Although the early documents of the fledgling United States seemed to continue these rules of diplomacy, white settlers, states, and loosely organized militias defied its precepts, refusing negotiation and clear channels of communication. In response, tribal leaders repeatedly invoked the diplomatic constitution and chided the federal government on its inability to control its subjects. As Chickasaw leaders informed Congress, “We are told that you are the head Chief of a grand Council which is above these Thirteen Councils…[I]f so, why have we not had talks from you? We are head Men and Chiefs and Warriors also, and I have always been accustomed to speak with great Chiefs and Warriors.” (P. 265.) At the time, federal officials were torn on whether to maintain the diplomatic constitution or to treat tribal nations as conquered peoples to whom no further concessions need be made. Tribal influence pushed these officials to restore existing norms.

Ablavsky and Allread also show that Native people were an important external audience for the U.S. Constitution. Federal actors had drafted the Constitution with tribal demands in mind, and “aggressively sold and promoted the new document to Native audiences as a restoration of the core principles of the diplomatic constitution.” (P. 269.) As officials informed the Muscogee, “Our Unions, which was a child, is grown up to manhood[]….One great council is established, with full powers to promote the public good,” and ensure “that justice shall be done to the nations of Indians….” Native leaders were congratulatory but pointed in their official responses. The Haudenosaunee observed that it had always been the custom of their confederacy to “have one Great Council fire kept Burning…and there to do all the public business which respected the five Nations in General,” while the Cherokee Nation complimented Congress on having “become strong,” but expressed its hope that “whatever is done hereafter by the great council will no more be destroyed and made small by any state.” (P. 273.)

Discussions between Indigenous observers were less hopeful. The Mohican sachem Hendrick Aupaumut accepted a federal commission to convince a confederacy of tribal nations that the new government would honor its promises and restrain its citizens. His audience, already suffering under unrestrained settler incursions, doubted his claims. Some tribal nations responded to violations of the diplomatic constitution by warring against those expropriating their land.  Others invoked it to secure favorable treaties for their people. The United States violated the faith of the latter, demanding new land concessions and removal instead of preventing illegal settlement.

Ablavsky and Allread present the landmark Cherokee cases as a continuation of Indigenous assertions that the U.S. Constitution incorporated the diplomatic constitution. Even before appealing to the U.S. Supreme Court in Cherokee Nation v. Georgia, 30 U.S. 1 (1831), and Worcester v. Georgia, 31 U.S. 515 (1832), Cherokee and Choctaw delegations made constitutional arguments in response to southern states’ claimed authority over their lands. Their testimonials asserted that the Constitution did not control tribal sovereignty, but their “treaties of relationship are based on the principles of the federal constitution.” The Commerce Clause prohibited states from interfering with those relationships, and those treaties were the “supreme law of the land.” When Congress and the Executive proved unresponsive, the Cherokee Nation brought its arguments to the Supreme Court.

And in Worcester v. Georgia, they succeeded. Chief Justice Marshall’s opinion affirmed tribal sovereignty, federal exclusive authority, and that state actions in violation of these principles were “repugnant to the Constitution, laws, and treaties of the United States.” President Jackson, of course, failed to enforce the decision, and the United States later forcibly removed the Cherokee people under a false treaty. And although Worcester v. Georgia powerfully sustained legal recognition of tribal sovereignty, over time federal law forcibly absorbed tribal governments within the constitutional order.

So how should this history influence our understanding of the Constitution today? Ablavsky and Allread offer their history as a general call for founding histories to look beyond the exclusive (white, male, propertied) group who could formally assent to its ratification. Native peoples, they show, were both an important audience for the Constitution and had an meaningful influence on its implementation. Further, they argue, the diplomatic constitution should be understood, like the works of William Blackstone, as part of the common law backdrop that informs constitutional meaning.

What light might the understandings of enslaved people, free people of color, or white women shed on constitutional meaning? Recovering understanding or influence would not mitigate the original exclusion or manufacture metaphorical consent. As Ablavsky and Allread show, Native nations refused consent and yet were incorporated anyway. But it would broaden the search for understanding and influence beyond the few whose claimed the power to consent on behalf of the many, and allow formally excluded people to claim their role as co-creators of constitutional law.  And the results may be as illuminating as those We the (Native) People provide.

Editor’s note: For another review of this article, also published today, see Allison Brownell Tirres, Constitutional History in the Middle Ground and Beyond: Indigenous Perspectives, JOTWELL (July 12, 2023).

Protecting the Indian Child Welfare Act After Dobbs

Nov 8, 2022 Aila HossNative Peoples LawAdd a Comment

The abolishment of a fundamental right in the recent Dobbs v. Jackson Women’s Health Organization decision sent a shock through communities across the country, including Indian country. Abortion access specifically, and reproductive health generally, has always been limited for Indigenous people. The Dobbs decision will make it worse.

In her forthcoming article, The Indian Child Welfare Act as Reproductive Justice, Professor Neoshia Roemer considers the impact of Dobbs alongside the potential gutting of the Indian Child Welfare Act (ICWA) in Brackeen v. Haaland. She shrewdly notes that limited access to reproductive healthcare without protections for Tribal rights puts Indian children and Indigenous cultures in jeopardy.

ICWA was passed in 1978 in response to “an alarmingly high percentage of Indian families [] broken up by the removal, often unwarranted, of their children from them by nontribal public and private agencies and [] an alarmingly high percentage of such children are placed in non-Indian foster and adoptive homes and institutions.”

ICWA provides Tribes sole jurisdiction over Indian child custody proceedings when a child resides in Indian country; is domiciled in Indian country; or is a ward of a Tribal court. Tribes have concurrent jurisdiction, alongside states, in all other instances. In state court proceedings, ICWA provides substantive and procedural safeguards to ensure that Tribes have a voice in proceedings, to prevent the breakup of Indian families, and to ensure placement preferences. These placement preferences include members of the child’s extended family; other members of the Indian child’s Tribe; and other Indian families.

ICWA has increased Tribal participation in Indian child custody proceedings and prompted placements that support Indigenous communities and Tribal sovereignty. ICWA’s progress has been challenged in numerous cases, the most urgent being Brackeen v. Haaland, which is set for Supreme Court oral arguments in November.

In Brackeen, petitioners challenged ICWA’s placement preferences on the basis that they are race-based preferences that violate the Equal Protection Clause, among other arguments. The Fifth Circuit rejected the petitioners’ challenge and the Supreme Court has granted cert. The Brackeen decision will be argued only months after the Dobbs opinion was released. It is this intersection that Professor Roemer explores.

Professor Roemer describes how family regulation, distinct from child welfare, has been used as a tool by the federal government in colonizing Indigenous communities. Examples include Indian boarding schools, Indian adoption programs, and the forced sterilization of Indian women.

She concludes that reproductive rights are inextricably tied to family regulation for Indigenous communities. Protecting reproductive rights means protecting Indigenous families through ICWA. She couldn’t be more right.

The abolishment of abortion care as a constitutional right will make it even harder for Indigenous people to access this care which, in turn, can lead to more pregnancies. Brackeen puts the protection of Indian families in jeopardy. There is a clear thread between Dobbs and Brackeen. The Dobbs decision specifically cited to a federal study regarding the nonexistent “domestic supply of infants” and the role of adoption as a suitable alternative to abortion. How troubling that a case that may increase the “supply of infants” will be heard by the Supreme Court on the heels of Dobbs.

Professor Roemer rightly frames ICWA as an issue of reproductive justice. I hope the Supreme Court agrees.

The Sky Did Not Fall After McGirt v. Oklahoma

Nov 1, 2022 Bethany BergerNative Peoples LawAdd a Comment

In Restoring Indian Reservation Status: An Empirical Analysis, Michael Velchik, and Jeffery Zhang provide some of the most rigorous empirical evidence to date on the economic impact of reservation status. Although I discuss limitations to their data below, the article provides a welcome counterpoint to repeated arguments—to the Supreme Court, Congress, and elsewhere—that affirming reservation boundaries will destroy existing economies.

These assertions gained nationwide attention when the Supreme Court decided McGirt v. Oklahoma. The Court held that Congress had not erased the treaty boundaries of the Muscogee (Creek) Reservation. Lower courts soon applied the decision to hold that the reservations of the Cherokee, Chickasaw, Choctaw, and Seminole Reservations—which occupy the rest of eastern Oklahoma—remained as well. In briefing and oral argument, Oklahoma and its amici insisted that affirming reservation status would be terrible for the safety and economy of the area. I have worked on several reservation boundary cases now, and these kinds of arguments—what Velchik and Zhang call the Falling Sky thesis–are trotted out every time. And for good reason: the Supreme Court allowed current demographics to distort its interpretation of congressional intent in South Dakota v. Yankton Sioux Tribe, and Hagen v. Utah and created an entirely new rule to maintain state jurisdiction over tribal lands within the undiminished Oneida Indian Reservation. (Sherrill v. Oneida Indian Nation of New York.)

The McGirt majority, however, refused to let these “sadly familiar arguments” persuade it to “cast a blind eye” to the injustice of undermining treaty-promised reservations. It also cited the brief I helped write for the National Congress of American Indians, arguing that other non-Indian communities do just fine within reservation boundaries. But, four other Justices were worried that the sky really would fall. In a dissent authored by Chief Justice Roberts, they chided the majority for having “profoundly destabilized the governance of eastern Oklahoma” and creating “significant uncertainty for the State’s continuing authority” over areas “ranging from zoning and taxation to family and environmental law.” Since then, Oklahoma has tried to play on those fears (and on Justice Ginsburg’s replacement by Justice Barrett), filing over 40 certiorari petitions seeking to overturn McGirt.

Velchik and Zhang try to bring facts to bear on the stories litigants and judges tell. They characterize these stories as falling into four camps. First, the aforementioned Falling Sky model argues that reservation status is just bad for local economies. Second, the Economic Stimulus model responds that reservation status may actually benefit local economies. Third, the Uncertainty Shock model (which they somewhat charitably ascribe to the McGirt dissent) asserts that the uncertainty caused by the change will undermine local economies. Finally, what they call the Game Theory model posits that governments will recognize the benefits of cooperation and adjust to protect the economy regardless of formal authority.

Velchik and Zhang use a clever natural experiment to test these models. Looking at Oklahoma and five other areas where reservation status was litigated, they compare trends in GDP and employment in counties affected by the decisions with those in neighboring counties. (The other areas are the Omaha Reservation, whose boundaries were affirmed by Nebraska v. Parker, the Saginaw Chippewa Reservation, whose boundaries were settled by Saginaw Chippewa Indian Tribe v. Granholm, the Puyallup Reservation, whose boundaries were settled by Pub. L. No. 101-41 (1989), the Oneida Indian Reservation, a somewhat more complicated case where Sherrill v. Oneida Indian Nation of New York, undermined the impact of reservation status, and the Yankton Sioux Reservation, whose boundaries were diminished by South Dakota v. Yankton Sioux Tribe ) Although many factors may contribute to economic trends, by comparing both trends before and after the decisions and between the affected county and neighboring counties, they can significantly isolate the impact of the decisions themselves.

This is the headline: their data show no negative economic impact of reservation status. In some instances, employment trends even improved compared to neighboring counties, but the results were not statistically significant. As they say, the results are powerful evidence against the Uncertainty Shock model and tantalizing (but far from conclusive) evidence of the Economic Stimulus model.

Beyond undermining the Uncertainty Shock model, however, their analysis has significant limitations. One involves the time periods it covers. In each case, their analysis stops two years after the final decision regarding reservation status. This means that the data do not necessarily reflect the effect of reservation status itself but rather the effect of the sudden change in perceived status. This is a powerful counter to the Uncertainty Shock thesis, which is based on change alone. It is also some evidence against the extreme forms of the Falling Sky thesis: skies don’t usually take two years to fall.

Without a longer stretch of time, however, it is only weak evidence regarding the general economic effects of reservation status. The first two years after a change in reservation status may reflect expectations and uncertainty by economic actors, but the impact of legal changes caused by reservation status itself might well take longer to appear. The initial period after a decision may also be characterized by heightened efforts by all parties to avoid rocking the bus, providing unwarranted support for the Game Theory thesis. Measuring changes over a longer period, however, might introduce more differences other than the change in reservation status, limiting the value of the authors’ difference-in-difference analysis.

There also are some difficulties in how the authors treat decisions that certain lands lack reservation status. All of the decisions they consider involve cases in which states and local governments acted as though reservations did not exist. Therefore, a formal decision against reservation status—like that in South Dakota v. Yankton Sioux Tribe—is not a significant change in the status quo. Similarly, when the Saginaw Chippewa and Puyallup Tribes entered into settlements affirming parts of their historic reservations and ceding claims to other parts, the impact is generally to increase the area with de facto reservation status, even though earlier decisions suggested a larger area was in play.

Altogether, however, Velchik and Zhang shed important light on the heat of unsupported assertions of reservation status. Federal Indian law litigation far too often turns on such unsupported parades of horribles. May their work be followed by similarly creative and rigorous responses.

Federal Indian Law is Racist

Jan 24, 2022 Aila HossNative Peoples LawAdd a Comment

From land theft to child removal to cultural genocide, the horrors and harms of federal Indian law have been well-documented. In his recent article, Professor Crepelle acknowledges this history and literature and asks: “Is it ethical to cite cases that are factually wrong and racist?” (P. 533.) He concludes that federal Indian law practice is “incompatible with modern standards of legal ethics.” (P. 532.) I couldn’t agree more.

Professor Crepelle identifies cases that rely on racial slurs, inaccurate stereotypes, and white supremacist language to reach legal conclusions that undermine Tribal jurisdiction or Indigenous rights. These cases—the Marshall trilogy, US v. Rogers, Ex Parte Crow Dog, US v. Kagama, among others—are regularly relied upon in modern federal Indian law practice.

Professor Crepelle analyzes how the Model Rules of Professional Conduct (MRPC) could be applied to lawyers who cite racist federal Indian law cases or judges who rely on them. For example, the MRPC requires claims to be based in law and fact (r. 3.1); prohibits the use of false statements or inaccurate information (r. 3.3, r. 4.1, r. 8.4(c)); and bars conduct that discriminates based on race, sex, or national origin (r. 8.4(d)).

These ethical rules, Professor Crepelle explains, were not applicable to the attorneys and judges when they participated in the cases discussed above. But they do apply to the lawyers that rely on them today. (P. 541.) He argues that when these cases are cited in modern practice (and they are a lot, Professor Crepelle counted!), attorneys and judges are obligated to acknowledge the faulty reasoning and white supremacy ideology that supported the decisions when relied upon today. He states “Presumably, few lawyers in the contemporary United States would dare to openly argue [T]ribal sovereignty needs to be curtailed because Indians are racially inferior to whites . . . unapologetically racist reasoning should render them impermissible under the ABA’s MRPC.” (P. 568.) I wish it were so. And, I wish case law was the only problem.

There are many racist statutes and regulations on the books today that are also products of white supremacy (looking at you, Major Crimes Act and Tribal recognition regulations). The modern-day practice of federal Indian law also includes lawyers and judges that routinely question the existence, capability, and cultures of Tribal nations. The Goldwater Institute, a nonprofit organization that has taken a leading role in the challenging the Indian Child Welfare Act in state and federal courts, relies on arguments that Tribes should not be treated as distinct political groups.

In his book, In the Courts of the Conqueror, Judge Walter R. Echo Hawk reminds us that “Only rarely in US history has the law served as a shield to protect Native Americans from abuse and to further their aspirations as [I]ndigenous peoples.” (P. 4.) Therein lies the rub. Most of federal Indian law is racist. What is left if we take out all the racist bits?

Fortunately, brilliant Tribal advocates, attorneys, and scholars have considered various options for reform. Echo-Hawk, in the final chapter of In the Courts of the Conqueror, offers a framework for “reforming the dark side of federal Indian law” which includes reforming federal law to meet the thresholds established by the United Nations Declarations on the Rights of Indigenous Peoples; overturning decisions like Johnson v. M’Intosh; and protecting Indigenous habitat. Professor Angelique Townsend EagleWomen has suggested a return to treaty-making between Tribes and the United States could bring more balance to Tribal authority in federal Indian law.

Through his article, Professor Crepelle adds rules of professional responsibility as another tool to use to chip away the racist foundations and practice of federal Indian law. It is a welcome one. We need all the tools we can get.