This Article discusses whether the Lakota Nation still has title to the unceded
territories outlined in the Treaty of 1868. While many accounts focus on the
supposed diminishment of the Great Sioux Reservation, the question of the
unceded lands has largely been forgotten. It has renewed relevance in the
context of the Dakota Access Pipeline, which crosses the lands. From a broader
perspective, the case raises questions about how history is understood,
constructed, and selected in American Indian Law cases. Most legal cases,
especially those concerning treaty rights, are rooted in an interpretation of
history; if that history is misinterpreted in court, the decisions can be
misinformed. In this instance, the history of the Treaty of 1868 has been
consistently misinterpreted by courts for over a century. However, comparing the
Treaty text to court decisions in a close reading shows that the Lakota Nation
should still have title to the unceded lands.
Rules of evidence shape litigation practice across the country. In this sense,
they govern the truth as it enters the court. Legal scholarship has yet to study
tribal approaches to evidence— an area with tremendous promise for legal
practitioners and evidence rulemakers alike.
This Article is the first to do so. It analyzes an array of tribal evidence
codes across the United States. It reveals three frameworks that describe
tribes’ approaches to the Federal Rules. In doing so, it offers a modest
contribution to the nascent intersection between Tribal law and evidence
studies: crucial insight into tribal systems’ unique needs, policy aims, and
perspective on what it means to “do justice.”
This Article examines various Tribal Nations’ experiences in developing their
own workers’ compensation systems using a comparative law and legal development
approach, including direct interviews with a diverse range of tribal members.
Tribal Nations’ self-created workers’ compensation codes predominantly rely on
local models and expertise to establish and operate their systems. However,
Tribal Nations also infuse their own cultural values into their codes,
incorporating tribal perspectives and priorities such as valuing traditional
medicine and peace-making alternative dispute resolution, providing more
generously to volunteers, and incorporating return-to-work programs into their
workers’ compensation systems. Some Tribal Nations also find it necessary to
include additional provisions that are not present in state codes to ensure
their codes’ practical effectiveness. Many Tribal Nations continue to refine
these systems, and flexibility as governments allows them to effectively respond
to present challenges and strengthen the performance of their workers’
compensation systems in the future
Native stories are embedded in the United States Constitution, property law, and
the nation’s legal and political framework, but education frequently omits these
truths. Such erasure perpetuates misunderstanding, invisibility, and hostility
toward Native communities, obscuring the reality that the United States was
built through the dispossession, coercion, and suffering of Indigenous Peoples.
Whitewashing history has allowed the nation to claim moral virtue and
industriousness while denying the foundational role of Indigenous Peoples. The
Article emphasizes that Native rights, whether land, water, or other
treaty-protected entitlements, as well as inherent rights such as tribal
sovereignty, are not charitable or discretionary; they exist as legal and
political realities. Native Peoples are not martyrs; they are asserting and
enforcing agreements made in good faith and exercising powers that have never
been relinquished. Misunderstanding or erasing these rights fosters public
confusion and hostility, often giving rise to objections or criticisms based on
misconceptions about Native peoples’ treaty-based or inherent authorities. This
Article proposes that schools throughout the United States teach the full,
accurate history of the nation, integrating Native peoples and their sovereignty
as central, not peripheral, to the “American” story. By embedding Native
histories into mainstream curricula, schools can acknowledge Indigenous
contributions, clarify treaty obligations, and foster cultural understanding,
self-determination, and tribal sovereignty. Drawing on legal history, treaty
law, and critical theories, including TribalCrit, the Article develops
strategies for inclusive curricula that present Native stories as essential to
United States history. Recognizing these truths is a moral, civic, and legal
imperative, necessary to educate students and uphold the rights and sovereignty
of Tribal Nations, while promoting a more just and informed understanding of the
United States.
Mixed Indigenous families (MIFs) navigating parental custody in the United
States can find themselves trapped in a Battleship®-style jurisdictional maze,
where tribal, state, and federal authorities collide unpredictably. This legal
mess threatens to separate children from their tribal communities, undermines
tribal sovereignty, and can force families into years of costly litigation. The
problem is rooted in centuries of white supremacist law and policy that
systematically dispossess tribes of culture and self-governance: from the
Marshall Trilogy to the boarding school era and harmful adoption schemes. Today,
legal frameworks like the UCCJEA remain insufficient as they minimize or ignore
tribal civil jurisdiction, reinforce the Doctrine of Indigenous Disregard, or
fail to protect MIFs from loopholes that allow non-Indians to escape tribal
authority. While legal scholarship has identified gaps in state and federal
Indian law, it has rarely examined the historical and jurisdictional inequities
that uniquely affect MIFs.
This Article applies a trilateral federalism lens to illuminate the convoluted
interplay between tribal, state, and federal courts in parental custody
disputes. Case studies reveal systemic biases, microaggressions, misapplied
statutes, and the prioritization of state authority over tribal governance. This
Article proposes practical reforms, including codifying UCCJEA § 104, fostering
tribal-state comity through Memorandums of Understanding (MOAs) and compacts,
and embedding Indigenous law and perspectives into doctrinal courses. By
centering MIFs’ rights and tribal sovereignty in legal decision-making, this
Article provides a corrective to longstanding jurisdictional inequities and
demonstrates that incorporating Indigenous voices is essential for designing
fair legal models.
“U.N.masking American Exceptionalism: How International Frameworks Can Inform
American Policy,” serves primarily to examine and criticize how American case
law, such as Johnson v. M’Intosh, has been used in foreign courts to justify the
Doctrine of Discovery and how, despite many other courts eventually
acknowledging it as a harmful rule of law in meaningful ways, the United States
has done no such thing. This Article walks through not only the legal cases both
at home and abroad, but also delves into the historical background that led up
to Johnson, examines the cases abroad that integrate the Doctrine of Discovery
and Johnson, and then walks through the contemporary work that has been done in
favor of Indigenous Peoples around the world. This work is highly critical of
the apparent lack of a cross-dependent relationship between American and foreign
courts in this area of law, in which the American court system has influenced
the “legitimacy” of taking from Indigenous groups in other countries. In a
modern society, where the harms of colonial pasts have been widely recognized,
there are remedial options in which the American government–be that by
legislation, diplomacy, or judicial ruling–can at least attempt to return as a
global leader in a positive light rather than cling to an antiquated ideal that
no longer fits into a post-colonial world.
This paper explores how John Locke’s theory of property, elaborated in chapter
five of his Second Treatise of Government, provided a compelling conceptual and
practical justification for the appropriation of Indigenous peoples’ territories
in America by the early English settler-colonists of the 17th century. It
examines how his property theory facilitated the nullification of Native
American conceptions of land through the superimposition of European private
property regimes in the settler colony. It further highlights briefly how
indistinguishable dynamics also characterize the contemporary
Israeli/Palestinian settler-colonial context, where the reverberations of
Locke’s thought on property are pervasive. To do so, this paper examines two of
the key components of Locke’s conceptualization of property (namely, human
beings’ transition from a state of nature to political society, and the
agricultural improvement argument) specifically in the context of their
application in settler-colonial settings. Ultimately, this paper hopes to
generate a more exhaustive appreciation of Locke’s theory of property by
underlining its implications in settler-colonial enterprises and its function in
abetting the expropriation of autochthonous lands.
Once abundant, the wild growing peyote cactus plants in Texas and Mexico are
being drastically reduced and becoming scarce. Peyote, a slow growing cactus
contains the hallucinogenic drug mescaline, is a sacred sacrament used in the
Native Americans Church (NAC). It is also used religiously by various Indian
tribes throughout the country of Mexico. Although peyote is classified as a
controlled substance under federal and state laws, U.S. Congress granted NAC
members a “peyote exemption” pursuant to the American Indian Religious Freedom
Act to legally use peyote for religious purposes. In U.S. v. Boyll, the federal
district court interpreted the peyote exemption law as extending its benefits
and protection to non-Indians or anyone claiming to be a NAC member. However,
the Boyll court failed to consider crucial federal Indian law analysis in
reaching its decision. Subsequent federal and state court decisions have relied
on the Boyll decision as precedents in reaching the same or similar conclusion.
As a result of the Boyll decision, false NAC groups have emerged claiming to be
official NAC chapters and who use illicit drugs, in addition to peyote, as their
sacrament while using the federal peyote exemption law to shield their illicit
activities. The Texas peyote gardens presently suffer from severe
over-harvesting caused by an increasing demand for more peyote from a shrinking
limited supply. Psychedelic tourism, criminal drug trade, massive land
development projects, illegal poaching, global warming, worldwide internet sales
of peyote, and other devastating human activities have significantly reduced the
wild peyote population in its natural habitat. Indigenous tribes of Mexico have
become alarmed at the diminishing peyote gardens in Mexico, which compelled the
Mexican government to enact a conservation law, NOM-059-SEMARNAT-2002,
classifying peyote as threaten and a protected species. NAC members are
prohibited from transporting peyote from Mexico into the United States or Canada
pursuant to this Mexican law. Greenhouse cultivation is considered an essential
practice for Indigenous tribes to cultivate their own peyote supply locally.
Significant measures must be taken to protect and conserve peyote for future
generations or it too may become extinct like numerous other plant and animal
species have worldwide. This paper examines the historical use of peyote by
Native Americans, the development of NAC, and an evolving peyote crisis. Lastly,
this paper offers recommendations for indigenous Native Americans to address
these issues.
The Sioux Tribe’s lawsuits and protests against the Dakota Access Pipelines
(DAPL) received an incredible amount of international attention in ways that
many Indigenous peoples’ protests have not. This article argues that attention
exists because the Sioux Tribe has been at the epicenter of the Indigenous
peoples’ rights movement in international law. Accordingly, they have invoked or
claimed international human rights—particularly free, prior, and informed
consent (FPIC)— to complicate, and perhaps destabilize, the DAPL’s development.
However, the importance of their activism is not merely in claiming human
rights.
Based upon a global map of law that involves multiple and overlapping
legalities, this article tracks the Sioux Tribe’s activism according to the
problem-solving approach. Accordingly, the Sioux Tribe is advancing a different
model of legality, one that is not based on a top-down command and control
authority. This article reveals a complex, global network of intercommunal
Indigenous peoples and nonstate actors by tracing the historical trajectory of
the Sioux Tribe, its opposition to the DAPL, its role in the Indigenous peoples’
rights movement, and the novel extra-national legalities the Sioux Tribe is
helping to formalize.
