The Indigenous Peoples’ Journal of Law, Culture & Resistance

The Last Old Woman is a story written in the traditional Euchee de'ela style. These de'ela, told in our language, often involved animals, usually told to children. Unfortunately, these are seldom heard any more for many reasons, not the least of which is the changing, or disappearing, structure of Euchee society. This de'ela is a parable about what can happen when we no longer tell our stories, no longer use our language, no longer gather together to remember. The story illustrates how simple structures within our traditional tribal society may require explanation to those not of our tribal society, sometimes including own people. When we discuss traditional people and their beliefs rarely do we articulate the issues using the forms to which they themselves subscribe. Forms matter, process matters.

Following the Last Old Woman an essay lays out how art, language and ceremony comprise our tribal societies. But these cannot exist individually if we wish self-determination to mean anything. Art, culture, language, traditionas, and ceremony—society—are intricately woven together. One is the other: art (for us mostly song and dance) is sacred and the sacred has life. One can look to various markers to see how this lack of coherent society impacts tribal people. Our languages disappear, ceremonies cease. Native Art is produced for outsiders. Many traditional Indigenous People face an uncertain future unless space is created for our society. Yet our traditional people still dream this future into existence. But our advocates and attorneys must help to implement this dream. Thus, we must celebrate our tribal forms, and recognize the work done by such as Rabbit and the Last Old Woman so that their end does not arrive.

"Sacrificing Indian Childrens' Rights"

"Paleface Paternalism"

"Justice Massacred"

"Ethnic Errancy"

"Rose Parade Indian-givers"

"Slaves to the tribe"

"Tribal bigotry"

"Kids pay the price for tribes"

The phrases listed above are published titles of newspaper editorials and op-ed essays challenging the legitimacy of the federal Indian Child Welfare Act ("ICWA") in the last 40 years. ICWA is a federal law originally passed in 1978 to address the high rate of removal (and subsequent adoption) of Indian children by state authorities. In passing the law, Congress found "there is no resource that is more vital to the continued existence and integrity of Indian tribes than their children." While there was no significant controversy about the law when it was drafted and passed with unanimous consent in 1978, the application of the law over the past 40 years, the law has come under sustained attack from scholars, attorneys, legislators, think tanks, adoption agencies, and judges. Moreover, while most child custody cases impacted by ICWA are so conventional that they don't warrant any particular attention, almost all national news coverage of ICWA emanates from a few specific high-profile cases in which mainstream news outlets usually characterize ICWA as cultivating unfair battles between Tribal Nations and prospective adoptive parents. Editorials, though, often go further than that, using words like "sacrificing", "massacre", and "slaves" to describe both tribal citizens and tribal nations. This article focuses on how these high-profile cases are characterized in newspaper editorials and op-eds; namely how these authors explicate their colonial views about ICWA, Indian identity, tribal sovereignity, and the virtues of adoption.

This article introduces a developing analytical framework for decolonizing legal education, critical analysis, and advocacy from and for Native communities. The second edition of Native Hawaiian Law: A Treatise, the definitive resource for understanding both historical and emerging legal issues affecting Kānaka Maoli (Native Hawaiians), will employ this contextual inquiry framework to encourage academic discourse and critical thinking about not only what the law is, but what it should be. The Treatise's contextual framing is born from the idea that legal analysis cannot focus solely on "traditional" notions of rights because such notions are grounded in western concepts of property that are not universally applicable, especially in Hawai'i.

There is no word for religion in most Native American languages. The Native American connection to the natural environment is cultural, traditional, and ceremonial. It is, often, linked to sovereignty and tribal governance, but is it a religion as the term is understood from a western viewpoint?

The Sami, who straddle three Nordic countries and the Russian Federation, are an Indigenous people who have lived on their lands since time immemorial. The legal framework that governs them must take into consideration that they are a semi-nomadic people, as some of their population live in settled communities while some practice a nomadic lifestyle. Their land use bears similarities to those of the indigenous peoples of the United States, Canada and Australasia in terms of grazing and living in harmony with the environment. The Sami have been granted a dispensation that provides them partial sovereignty through the establishment of Parliamentary Assemblies in Norway, Sweden, and Finland. The establishment of these new bodies has not dissipated their need to assert ownership over land and to resist industrial exploration owing to the grant of mineral licenses that have viscerated their rights. The issue is whether the Sami can achieve restitution by an assertion of full title to land in Norway, which has the highest percentage of Indigenous population in Scandinavia, and whether public-interest litigation based on self determination is available to them to achieve this goal. This Paper argues that the Sami can affirm their land claims in fee simple by legal processes in the courts and achieve this ownership as an indigenous right to land if that is recognized to be sui generis.

This Article is the first of a two-part investigation into the Indian law doctrine of reservation diminishment/disestablishment, examining Supreme Court decisions in this area in light of insights gathered from the collected papers of individual Justices archived at the Library of Congress and various university libraries. The Article first addresses Seymour v. Superintendent (1962) and Mattz v. Arnett (1973), observing that these first two diminishment/disestablishment cases are modern applications of basic, longstanding principles of Indian law which are highly protective of Indigenous people’s rights and tribal sovereignty. The Article then examines in detail DeCoteau v. District County Court, the anomalous 1975 decision in which the Supreme Court held that an 1889 land-sale agreement between the United States and the Sisseton-Wahpeton Dakota Indians, which Congress ratified in 1891, had abolished the boundaries of the Lake Traverse Reservation in South Dakota and North Dakota, a reservation that had been established as the Indians’ “permanent reservation” home in an 1867 treaty. The Article critiques DeCoteau in view of the historical context of the 1862 U.S.-Dakota War, an explosive conflict that resulted in the forced removal of the Dakota people from their reservation and aboriginal homelands in Minnesota and the abrogation of all U.S.-Dakota treaties, including treaty rights that guaranteed annual payments essential for the Indians’ subsistence and survival. The Article brings into view the full scope of the negotiations between the Sisseton-Wahpeton people and U.S. commissioners in 1889, demonstrating that the Dakota people never consented to any reduction or elimination of reservation boundaries when they agreed, under desperate circumstances, to sell to the United States the unallotted lands within the reservation. The Article further surveys additional evidence, unaddressed by the Supreme Court, regarding the 1891 Act’s legislative history, including numerous congressional debates and provisions of reports of the Senate and House of Representatives, as well as evidence from Executive Branch sources, which collectively show that the 1891 Act did not shrink or terminate the reservation. The Article posits that DeCoteau, which scholars recognize as having initiated a “magic language” mode of analysis in the reservation diminishment/disestablishment area, cannot be reconciled with fundamental principles of Indian law. Finally, the Article inspects and discusses documents from the archived papers of the Justices who took part in DeCoteau, unraveling clues that may help account for the Supreme Court’s aberrant decision.

American museums adorn their exhibitions with the cultural heritage belongings of Indigenous peoples from around the world. The collectors, not the belongings' originating communities, typically makes these donations and benefit from fair market charitable deductions. All the while contemporary Native American artists wish to share their experiences and stories, yet artists only receive a charitable deduction equivalent to their basis in creating the artworks when donating to museums. This Article demonstrates how potential modifications to the Internal Revenue Service's Art Advisory Panel may deter looters from desecrating archaeological sites and illustrates how passage of the Artist-Museum Partnership Act would inject contemporary Native American art into American museums.