Expert scholars and practitioners explore how Native American communities experience regulation.
For the first time in U.S. history, a Native American will lead a cabinet-level department in the U.S. federal government. Secretary of the Interior Debra Haaland now heads the federal agency primarily responsible for coordinating the U.S. government’s complex regulatory relationships with Native Nations.
These relationships are predicated on tribal sovereignty—tribes’ inherent authority to “make their own laws and be governed by them.” Accordingly, the United States is obligated to promote tribal self-determination and tribes’ ability to provide for the health and welfare of tribal citizens within tribal lands. Yet despite its formal recognition of a certain degree of Native sovereignty, the federal government has also exercised significant control over tribal peoples and lands. Throughout U.S. history, federal administrative bodies, such as the U.S. Department of the Interior, have often failed to uphold the promises and obligations of sovereignty adequately.
In this series of essays, scholars and practitioners explore some of the most pressing regulatory issues affecting how Native American communities experience government and law, as well as how existing systems of power ignore and exclude Native peoples and governments.
The Regulatory Review is thrilled to feature this series of essays highlighting the effects that regulation has on Native individuals and communities. The series’ contributors include: Emily deLisle, University of Pennsylvania Law School; Katherine Florey, University of California, Davis School of Law; Dylan R. Hedden-Nicely, University of Idaho College of Law; Hillary M. Hoffmann, Vermont Law School; Aila Hoss, University of Tulsa College of Law; Sarah E. Krakoff, University of Colorado Law School; Elizabeth Kronk Warner, University of Utah S.J. Quinney College of Law; Sarah Roubidoux Lawson, Schwabe, Williamson & Wyatt PC; Robert J. Miller, Arizona State University Sandra Day O’Connor College of Law; Monte Mills, University of Montana Alexander Blewett III School of Law; Megan Powell, First American Title Insurance Company; Ezra Rosser, American University Washington College of Law; Joe Sexton, Galanda Broadman PLLC; Judith A. Shapiro, Big Fire Law & Policy Group; Jessica A. Shoemaker, University of Nebraska College of Law; and Ann E. Tweedy, University of South Dakota School of Law.
Complicated Environmental Regulation in Indian Country
March 15, 2021 | Elizabeth Kronk Warner, University of Utah S.J. Quinney College of Law
The environmental regulatory structure applicable to Indian country is certainly complicated—with tribal, federal, and, on occasion, state environmental regulations in place. This structure ignores and excludes tribes from existing systems of power.
The Legacy of Federal Control in Indian Country
March 16, 2021 | Monte Mills, University of Montana Alexander Blewett III School of Law
Historic and contemporary limitations on tribal authority are of particular importance as the federal government seeks to transition to a more sustainable balance of conservation and development.
The Tribal COVID-19 Response
March 17, 2021 | Katherine Florey, University of California, Davis School of Law
In response to the COVID-19 pandemic, many tribes took action aggressively and quickly. Effective tribal governance has both saved lives in Indian country and provided a model of pandemic response outside it.
The Most Significant Indian Law Decision in a Century
March 18, 2021 | Robert J. Miller, Arizona State University Sandra Day O’Connor College of Law
McGirt v. Oklahoma is one of the most significant and consequential Indian law decisions the U.S. Supreme Court has rendered, with implications for the Muscogee (Creek) Nation as well as other Indian tribes in Oklahoma and across the country.
Tribal Regulatory Authority to Combat Climate Change
March 22, 2021 | Dylan R. Hedden-Nicely, University of Idaho College of Law
Addressing climate change is a moral imperative. The U.S. Congress and Supreme Court should respect the sovereign right for American Indian tribes to protect their homelands from climate change.
Critical Race Theory and the Trust Responsibility
March 23, 2021 | Aila Hoss, University of Tulsa College of Law
Embracing Tribal critical race theory is essential to prevent continuing harm to Tribal sovereignty and Indigenous peoples by federal actors. It is crucial to the federal government’s trust responsibility to Tribes.
The Constitutionality of Federal Regulation in Indian Country
March 24, 2021 | Hillary M. Hoffmann, Vermont Law School
If the Supreme Court is finally willing to consider the constitutionality of a statute such as the Major Crimes Act, such review would raise a series of questions about the constitutionality of all congressional acts based on the Indian Commerce Clause.
An Open Challenge to the Navajo Nation’s Land Use Authority
March 25, 2021 | Ezra Rosser, American University Washington College of Law
Last year, the Navajo Nation government confronted the question of whether the tribe should or even could enforce its land use regulations against an actor who openly defied them by illegally growing marijuana on reservation land.
Embracing Disruption and Other Lessons from Canada
March 29, 2021 | Jessica A. Shoemaker, University of Nebraska-Lincoln College of Law
In its management of Native lands, the United States has repeatedly sought to preserve a largely broken status quo, avoiding messy disruptions in favor of consistency and concerns for the settled expectations of outside interests. But reconciliation done right is inherently disruptive.
Regulatory Recognition of Native Histories
March 30, 2021 | Joe Sexton, Galanda Broadman, PLLC
The Native American Graves Protection and Repatriation Act provides for the repatriation of Native American human remains and sacred objects—but court decisions run contrary to the plain language of the relevant regulatory authority, undermining the Act’s purpose.
Congressional Restoration of Tribal Civil Jurisdiction
March 31, 2021 | Ann E. Tweedy, University of South Dakota School of Law
It is high time for Congress to step in and restore tribal civil jurisdiction. Clarifying tribal civil authority would allow Tribes to protect against social ills on their reservations and foster more certainty as to the scope of tribal regulatory authority.
Unsettled Consequences of the McGirt Decision
April 1, 2021 | Sarah Roubidoux Lawson, Schwabe, Williamson & Wyatt, P.C and Megan Powell, First American Title Insurance Company
McGirt does not provide answers to questions about regulatory jurisdiction over fee land inside the boundaries of a reservation. Lenders and title insurance companies must continue to consider the laws of both the tribe and the state when underwriting transactions on these lands.
Equity and Justice Should Begin at Home
April 5, 2021 | Sarah Krakoff, University of Colorado Law School
Federal public lands agencies have sordid histories of racial and gender discrimination that have never been fully addressed. If agency heads can root out discrimination in their own agencies, there is hope for their ambitious external justice, environment, and climate agendas—and for improving relations with Native tribes.
Rules for Acknowledging a Broken Trust
April 6, 2021 | Judith Shapiro, Big Fire Law & Policy Group
Federal recognition of an Indian tribe’s sovereignty establishes a government-to-government relationship between the tribe and the United States. Without federally recognized status, tribes face impediments to exercising sovereign powers to protect their people.
Promoting Indian Child Welfare through Inquiry and Data
April 7, 2021 | Emily deLisle, University of Pennsylvania Law School
More than four decades after Congress passed the Indian Child Welfare Act, state courts still do not reliably fulfill their obligations under the statute. To realize the Act’s promises, state courts and the federal government alike must seek out more information, not less.
Establishing Economies on Indian Reservations
April 8, 2021 | Robert J. Miller, Arizona State University Sandra Day O’Connor College of Law
By adopting commercial laws, and by creating stable and fair court systems and bureaucracies, tribal governments can encourage the development of private businesses on reservations. Tribal governments must play this important role for reservation economies.
