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Hemp on the Navajo Nation: Returning to Hozhó After the Disruption of Navajo Nation v. Benally

Taylor Bingham

Hemp has been explored as a potential source of economic development by many tribal nations. As of March 22, 2021, 41 tribes have approved hemp production plans through the U.S. Department of Agriculture (USDA), while an additional six tribes have submitted plans that are currently under review.[1] The Navajo Nation is not among them. Though the Nation began to explore industrial hemp production in 2019, the reputation of cannabis[2] preceded these efforts. Though some leaders recognized that the introduction of a nonnative plant species into the environment should be approached delicately, others saw changes to Navajo Nation cannabis laws in preparation for this development as an opportunity to introduce large scale illicit hemp farming, without regard for its potential consequences.

In my paper, I use the case Navajo Nation v. Benally[3] (Shiprock D. Ct. 2020)as a lens to examine how the introduction of industrial hemp cultivation to the Navajo Nation is both supported by and in tension with Diné traditional law. This case was a culmination of local efforts to shut down illicit hemp farms that rapidly expanded in and around the Shiprock, New Mexico community over the span of less than two years. [4] Dineh Benally, a former Navajo Nation political figure and advocate for hemp cultivation as a means of economic development, supervised the farms and was in the process of developing several businesses relating to them when the complaint against him was first filed. [5] After complaints to local officials yielded little response, a combination of investigatory journalism, community activism, and local administrative investigations led to the Navajo Nation requesting and being granted a preliminary injunction and temporary restraining order against Benally and his operation. [6] Though the coronavirus has put any further action against Benally on hold, the farms left a lasting impact on the land, the water, and the community that has yet to be remedied.[7]

I begin my paper with an overview of cannabis law on the Navajo Nation, beginning in 2000 and ending with the most recent order granted in the Benally case in September of 2020. I then briefly profile some traditional Diné legal principles in order to provide a framework for analysis of conflicts brought about by the alleged actions taken by the Defendant in Benally. Next, I use this framework to analyze the Benally filings, focusing on three ways in which the illicit introduction of hemp farming by the Defendant caused disruption to Navajo Nation lands, the people, and the community as a whole. Finally, I conclude by using fundamental Diné legal principles to examine ways in which both the Navajo Nation and the Defendant in Benally could address the harms caused by both regulated and unregulated hemp farming so that the community can move forward.

I was inspired to write about this issue because of the tensions I saw in the press coverage of the case between the pursuit of viable, sustainable economic development by Navajo Nation leadership and the ways the Diné indigenous legal tradition frames the importance of relationships. The introduction of industrial hemp farming has the potential to impact environmental resources, tribal sovereignty and self-governance, and the relationships among community members. If approached haphazardly, as was arguably done in Benally, this potential industry may be doomed to fail.

As I reflect on writing this piece, I acknowledge I am writing from the perspective of an outsider with no lived experience of the Diné legal tradition. I relied on published works by Justice Raymond D. Austin, who served on the Navajo Nation Supreme Court for 16 years, as well as Navajo Nation court opinions to describe the Diné legal tradition and apply it to the Benally case and its consequences. I also relied on coverage of the case by Arlyssa Becenti, reporter for the Navajo Times, whose work provided a window into the perspectives of the Shiprock community as they faced the consequences of this disruptive farming operation. Finally, I would not have been able to reach my limited level of understanding without the patient guidance of my mother-in-law, Dolly C. Begay, who answered so many questions and gently corrected my pronunciation along the way. I’ve learned so much through this experience, and I look forward to continuing to broaden my knowledge and understanding of the indigenous legal tradition as a primary source of law.


[1] Agricultural Marketing Service, Status of State and Tribal Hemp Production Plans for USDA Approval, U.S. Dept. of Agriculture, https://www.ams.usda.gov/rules-regulations/hemp/state-and-tribal-plan-review (last visited Apr. 5, 2021).

[2] Though the terms “cannabis,”, “marijuana,” and “hemp” are often used interchangeably, this is inaccurate. “Cannabis” is used to refer to any product derived from the Cannabis sativa plant. “Marijuana” refers to cannabis that contains higher levels of THC, while “hemp” is used to refer to cannabis plants with less THC. Cannabis (Marijuana) and Cannabinoids: What You Need to Know, Nat’l Ctr. for Complementary and Integrative Health, https://www.nccih.nih.gov/health/cannabis-marijuana-and-cannabinoids-what-you-need-to-know (last visited Apr. 5, 2021).

[3] See Arlyssa Becenti, 2020 in Review: Cannabis Farmer Still Free After Major Bust, Navajo Times (Dec. 30, 2020), https://navajotimes.com/2020-review/cannabis-farmer-still-free-after-major-bust/ for a review of the circumstances that led to the preliminary injunction and TRO in this case.

[4] Id.

[5] Id.

[6] Id.

[7] Id.

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Traditional Tlingit Law & Governance and Contemporary Sealaska Corporate Governance: 4 Core Values and a Jurisprudence of Transformation

Micah McNeil

In this paper I discuss the traditional Tlingit law and governance at the initial time of contact with Europeans. I then discuss the transitionary period between the traditional Tlingit law and governance of the Tlingit Nation to the birth of the Sealaska Corporation through the Alaska Native Claims Settlement Act (ANCSA).  Sealaska is an Alaska Native Regional Corporation comprised of the Tlingit, Haida and Tsimshian Nations. I give an overview of the contemporary governance of Sealaska Corporation. I then discuss how Tlingit law and values are still being applied by the Tlingit people through the Sealaska Corporation. I did so in this article by reviewing the four core Tlingit values of Haa Aaní (Our Land), Haa Latseen (Our Strength & Leadership), Haa Shuká (Past, Present, and Future Generations), and Wooch.Yax (Balance) and how the Sealaska Corporation is incorporating them today. These values and protocols have officially been embraced and incorporated into the Code of Ethics by Sealaska. However, before this, they were practiced and in operation largely through performance law.

I also compared the Tlingit clan governance structure with the current Sealaska corporate governance model and discussed the similarities and differences between the two. Sealaska’s corporate governance structures bears a number of striking parallels to the ancient Tlingit clan structure.  However, there have been changes brought about by the Alaska Native Claims Settlement Act, including the transfer of land from the clans to Sealaska and the Native and Village Corporations.  Historically, the Tlingit form of governance was centralized in the clan. Yet, because of the large number of clans in the various Tlingit regions – or kwaans – it created in the aggregate a decentralized form of governance. Today the governance of the Tlingit has transitioned to a regional form of governance through Sealaska and the Central Council of the Tlingit and Haida Indians (CCTHITA). However, similar to the ancient clan structure, the Tlingit also maintain a decentralized form of governance through Sealaska, the various Native village and urban corporations, as well as the organizations Sealaska is associated with. 

In conclusion I discuss the differences between the historic Tlingit clan structure and the Sealaska corporation. As part of this analysis, I discuss various contemporary issues that still need resolution for the Tlingit and Alaska Natives. In particular I focus on land claims, sovereignty, subsistence rights, blood quantum and Native leadership development and employment.  I then give a number of recommendations on how these issues might be addressed and resolved.

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Law of Indigenous Peoples Paper Topic: Max Spivak

Law of Indigenous Peoples: The Alaska Native Claims Settlement Act and the Tlingit and Haida

            To fulfill the writing seminar co-requisite of the Tribal Law Journal, I completed a brief profile of the Tlingit and Haida Tribes of Alaska and a larger objective review of the Alaska Native Claims Settlement Act (ANCSA). In my studies and work experiences I often see the term “American Indian and Alaska Native.” The distinction given to Natives in Alaska sometimes makes it seem like those communities are unique, and they certainly are, but their role in federal Indian law and tribal law must not be an afterthought. The paper stems from an interest in addressing this trend, an appreciation of the Alaskan land, and with respect to the people who have lived among it since time immemorial. I am not Native, and to ensure that my research and final paper did not take more than it gave back, I will maintain my relationship with Alaska Native communities in my future extra-curricular pursuits.  

            I extensively researched federal Indian law as it relates to Alaska Natives. I compiled relevant legislation (aside from just ANCSA), judicial opinions from all levels of the United States courts, administrative records, books, and scholarly commentaries. To highlight Native Alaskan voices, I incorporated several published interviews and local news articles, too. I conducted my research within the federal Indian law and tribal law stacks at the UNM School of Law library, and I was fortunate to also take advantage of the legal and undergraduate libraries at UCLA (whose law school used to publish the UCLA-Alaska Law Review). I also spent considerable time writing at the USC School of Law library. I relied on internet resources, but I also delved deep into many print materials that had never been digitized. 

To provide some direction for the paper, I drew upon the following Felix Cohen quote: “Like the miner’s canary, the Indian marks the shifts from fresh air to poison gas in our political atmosphere; and our treatment of Indians, even more than our treatment of other minorities, reflects the rise and fall in our democratic faith.”[1] To temper this claim, I introduced David E. Wilkins’ more contemporary response to the metaphor: “[It] “situates indigenous nations in an extremely vulnerable and abused role . . . [notwithstanding] that Native peoples have often been used in federal social experiments.”[2] What drove the paper, and the principle to which Wilkins harkened, is “that while the means we use may be molded by the ends we seek, it is the means we use that mold the ends we achieve.”[3] I then offered the following questions: “If the Indian is the miner’s canary used to measure the levels of toxicity—or even just measuring the density—in the political air, no matter its usefulness, its life is often forsaken for the benefit of others. Is the Alaska Native Claims Settlement Act (ANCSA) indicative of legislative means achieving undesirable ends? Almost 40 years after the passage of ANCSA, do its effects indicate that Native Alaskans were forsaken? What does ANCSA, as the metaphorical mine, and the treatment of Alaska Natives, the metaphorical canary, signal about politics and democracy in the United States?” Throughout the paper I intended to keep the spirit of objectivity and I integrated differing perspectives toward ANCSA’s legacy.  

            The structure of the paper included the tribal profile followed by the ANCSA review. I introduced Alaska Native ethnic communities and geography, in general, and then focused on the history and composition of the Tlingit and Haida tribes, in particular. I addressed the impact of colonization on the people, land, and animals in southeast Alaska, and discussed (publicly available) Tlingit and Haida elements of traditional law and contemporary governance. The following section about ANCSA began with a comprehensive overview of the history of the legislation, its purported purposes, and the immediate impacts upon ratification. One of the very few subjective stances that I made in the paper (for the intention was an objective review), posited that Congress’ desire to rapidly and widely settle hundreds of outstanding Native land claims outside of the court system was short-sighted. The ANCSA section then presented the Sealaska Corporation, the ANCSA-mandated Alaska Native regional corporation representing Tlingit and Haida interests. The next sub-section was titled “Culture and Land” and analyzed ANCSA’s impact on them; the following sub-section was titled “Economics”; and the penultimate sub-section was “Sovereignty” with a sub-sub-section on data sovereignty. 

The conclusion of the paper noted that 

the canary did not have much of a choice; it was not lowered into the mine by its fellow birds, nor did it receive a profit for its work, nor was it thrust into its sacrificial role with such comprehensive research and ongoing political thought. Cohen’s means and ends principle, however, may be more fitting. Often times there are several types of ‘means’ that can be employed, and the chosen means may induce different ends than others.

Still, though, “the corporative means under ANCSA created generational prosperity for many, but were there other means that could have prevented major drawbacks? If so, would they have been as financially lucrative or all-inclusive in settling Native Alaskan land claims? Could each claim have been settled or adjudicated deliberately?” Oil was discovered at Prudhoe Bay in northern Alaska years before ANCSA was passed; the discovery catalyzed lobbyists, energy companies, and politicians, and it hastened the passage of the act. The role of Native Alaskan interests in ANCSA is the crux of widespread debate, and that debate is at the forefront of my ANCSA review. 


[1] Felix S. Cohen, The Erosion of Indian Rights, 1950-1953: A Case Study in Bureaucracy, 62 Yale L.J. 348, 390 (1953).

[2] Felix S. Cohen, On the Drafting of Tribal Constitutions xii (David E. Wilkins ed., 2007).  

[3] Id. (quoting Cohen, supra note 1). 

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Law of Indigenous Peoples Paper Topic: Felisha Adams

Felisha Adams, Navajo Business Site Leasing Policies: Measuring Up to Diné Needs? (2019)

This article has been created in response to the perceived difficulty in operating successful businesses on the Navajo Nation and as an effort to support tribal self-governance through economic development. There is well documented case law, history, and policies that evidence how the tribal attempts to provide for self as an individual, and as a nation, have been oppressed by imprudent and inequitable relations with foreigners.  Additionally, decades of statistics exhibit disturbing deprivations of the people, their land, and their resources.  The Navajo Nation is one of many tribes committed to remediate damages and restore hozho, alternatively defined as peace and stability.  The commercial business site leasing enactments by the United States Congress and the Navajo Nation are an affirmative step towards economic resolutions that fit the tribe’s unique needs. The Navajo Nation Trust Land Leasing Act of 2000 delegates business site leasing regulatory authority from the Bureau of Indian Affairs to the Navajo Nation. The Navajo Nation Business Site Leasing Regulations of 2005 accepts and executes the regulatory authority.  The tribe has made progress since 2000, however, economic indicators suggest there is still room for improvement, including policy revision.  

As a tribal member and stakeholder, I find that it is critical to conduct this analysis through an indigenous perspective.  First, the document explores historical to modern interpretations of Navajo fundamental law, governance, land, and commercial development to conceptualize a Navajo standard of economic success. It is through the Navajo standard that legislative acts, business site leasing management, and preparation for the future are analyzed to answer whether current business site leasing policies align with established Diné fundamental law.  The research also focused on determining whether the Act fulfills the Navajo Nation’s needs or if is there a greater need for policy change. In an attempt to provide measurable answers, the document also provides suggestions for ways to improve the process to better provide benefits for stakeholders.  The research for this document consisted of various academic, historical, legal, business, and tribal resources.

As one of the largest tribes in North America, the Navajo Nation’s unique responsibilities are magnified by the court system, land base, political structure, and population size.  The next element of this document explores governmental roles and responsibilities in addition to relevant business site leasing laws.  Contrary to impressions of a system difficult to navigate, much of the information used for this research is available to the public. The public documents regarding governance, demographics, economic development and case law are supplemented by widely acclaimed published material.  The published material was utilized to highlight cultural information specific to  the Navajo Nation as well as indigenous tribes collectively. Lastly, the research is supplemented by the author’s educational and professional background.  The conclusion provides that the tribe’ exercise of authority is beneficial to the Navajos but policy modifications could increase efficiency.

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Law of Indigenous Peoples Paper Topic: Krista Thompson

The Fort McDowell Yavapai people are a federally recognized tribe living in central Arizona, amongst saguaro cactuses and along the Verde River. Yavapai people call themselves Abaa’jaa’ or “People of the Sun.” Historically, there were four bands of Yavapai, and the band living in Fort McDowell are known as the southern band or “Kwevkapaya.” Today, there are only three bands, each federally recognized, while the fourth split and joined neighboring bands. My paper addresses how the Kwevkapaya people have taken specific cultural aspects of Yavapai life and codified them into a written exclusion code. The purpose of codifying the code was to protect the integrity of their culture and land from outsiders.

The paper is divided into two parts, the first describes Kwevkapaya culture and history and the second is an analysis of the current tribal exclusion order. Within the first section, I describe internal Abaa’jaa’ social structure, traditional allies and enemies, Kwevkapaya crimes and punishment, and the purpose of traditional law in the contemporary Fort McDowell. Although I have chosen to include legal authorities and well documented points in history, I’ve also included the voices elders who have witnessed the changes of jurisprudence during their lifetime. Although Arizona is home to many other tribes, Yavapai culture remains distinct and this paper describes how the exclusion code was implemented to ensure the Kwevkapaya remain protected from outside threats. 

The second section is a legal analysis of how the current Kwevkapaya governance is shaped to deter outsiders from interfering with our way of life. The first subsection begins with a historical description of governance, tribal jurisdiction and the implemented of enacted law. The second subsection is described as maximizing tribal sovereignty by emphasizing Kwevkapaya jurisprudence. The primary point of analysis is spent distinguishing the differences between the Violence Against Women Act, 18 U.S.C. § 2262 – Interstate Violation of a Protection Order, and the tribal exclusion code. Each of these statutes provide a framework for federally recognized tribes to implement for the protection of themselves from unwanted intruders who pose a threat to their tribal members. During the research process, I consulted with the Fort McDowell chief prosecutor who was very helpful in explaining the administrative process of exclusion, due process issues, confidentiality, and community involvement. This section concludes by determining that Fort McDowell is one tribe who has maximized a simple, yet powerful property right – the power to exclude.

My paper analyzes various aspects of Kwevkapaya jurisprudence and focuses on describing why traditional jurisprudence continues to be practiced in an adversarial setting. The paper cites to various legal authorities and documented points in history, however is organized and written from the perspective of a Kwevkapaya woman. This paper was originally intended to educate non-Yavapai people about the strength of my ancestors and today’s leaders, however I see that the paper could serve as a possible model for other tribes to protect their people from outsiders. Just as the exclusion code was written to protect the integrity of our culture, land, language and people, other tribes may have already chosen to do the same through other ways.

After growing up in Fort McDowell, reading the congressional testimonies of my elders and relearning the history of my own people, the process of writing this paper was an emotional challenge. As law students, we learn to recite facts and rules of law from old cases and various jurisdictions. In this case, I read and analyzed racist descriptions about my people. I’ve cited to history books that included pictures of the bones of my great-great-great grandparents who died in the Skeleton Cave Massacre. I read a Congressional dialogue between my late-grandfather and Senator Ted Kennedy. Lastly, I learned how the Indian Claims Commission quieted title to Yavapai lands for a mere $5 million dollars, which includes some of the most scenic lands in Arizona. Although this paper discusses an exclusion mechanism, most importantly the paper was an eye-opening experience for myself as a Kwevkapaya woman entering the field of law.

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Law of Indigenous Peoples Paper Topic: Vanessa Hidalgo

Mexica Sustainability: Respecting Indigenous Knowledge as Law

By Vanessa Hidalgo

There are many legal traditions that have contributed to both the present common law and civil law traditions used in many countries today. These legal traditions portray the past, present and future of our societies. It is important to note that not all legal traditions have been written down, some are performed orally or even passed down through actions. The definition of the word “law” and its implication varies, dependent on the context, culture, society, and history. Law is not always written down and law cannot be simply defined by colonized thoughts and ideologies. Instead, my paper views indigenous knowledge and practices as Mexica law, with a particular focus on Mexica sustainability and the need for those traditions in Mexico City today. It also discusses the impact of colonization and Western ideologies and how that has led to current Mexico City issues of sustainability causing contemporary reflection on how Mexica Indigenous knowledge can be used to combat those issues. 

First, my paper begins with a history of Tenochtitlan and Mexica indigenous legal traditions on sustainability. Second, an explanation of the impact of colonization on the water in the Valley of Mexico. Third, current issues in Mexico regarding sustainability and the resilience of Mexica practices that can combat those issues today. 

Mexica knowledge and practices were imperative for Tenochtitlan sustainability. They were an agricultural society that depended on the fresh spring waters that surrounded them. They had a very complex system put in place that not only respected the land that they lived on but provided them with a lifestyle that encompassed their spiritual beliefs. Although the laws were harsh when it came to wastefulness, it was necessary to create a city that would sustain the Mexica for centuries. Everything that they used was always recycled or put back into the earth protecting their environment from air, land and water pollution. Their lives depended on water and it was what kept their chinampas and their milpa plots flourishing. The creation of their water gods, Tlaloc and Chalchiuhtlicue are a reflection of the importance of water and the need to intertwine their spiritual beliefs with their water use. This gave them a connection with the land that they believed was given to them from the gods. 

Mexica oral stories are also important to view what was important to them and what was law. They believed that the Valley of Mexico was the place their gods placed them, and they did what they could to preserve this important land base. Their oral histories and practices are what was law. Law to the Mexica was not just the ordinances put in place to prohibit wastefulness, but it was the forming of the chinampas and tending to them. The religious rites and sacred rituals surrounding the water after every birth and every death. It was the educational teaching of cleanliness in the home and water culture that was law. Mexica law was the practice of planting their maize during specific times of the year and the rituals done to bring the seasonal rains that would help the maize grow. The cultivating of the milpa plots was also a form of Mexica law, the plants had to be planted with certain vegetation that would enable them to live off one another and grow.

 All of the practices that provided the Mexica the ability to sustain their constantly growing city was Mexica law. Without these laws, Mexica sustainability would not have been what it was, every practice and action had a reaction. If the chinampas were not protected from the floods and built properly they would not survive, and Tenochtitlan would lack food. If the water was not respected and cleanliness was not sacred, then pollution would threaten their land, air and water. Unfortunately, when Cortes arrived colonization slowly depleted and disrespected indigenous law. Indigenous law was thought to be pagan and was destroyed physically, mentally and spiritually as Spain sought to change indigenous water culture.

 This can be seen with water policing in the 1700’s and the Western laws and beliefs that sought to disenfranchise and oppress the indigenous people of Mexico who had preserved the beauty of their lands. Sadly, indigenous acknowledgement came late in 1992, but indigenous people continue to be resilient. Today, the chinampas are still used by farmers who provide their produce to some of the best restaurants in the world. The growing concern surrounding the water crises has spurred investigations to use indigenous knowledge to try and reduce the harm to the environment and the water. The 500 years of destruction to the land in Mexico cannot be fixed, but the continued resilience of the Mexica in Mexico today and the indigenous histories passed down can provide a wealth of knowledge that can preserve what land and water there is left.

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Law of Indigenous Peoples Paper Topic: Jessica Martinez

An Unrecognized People: The Story of the Chihene Nde Nation of New Mexico and their Struggle to Seek Federal Re-Recognition

“Bik’egu indán naił hedansį. Nzhugoo na idaada idén í, naiłgunłí nazai shi nahi até ibił, hinłiłgu, naha anzí. ihexé” 
English Translation: “Creator of life we are honored by you, look over us. Firmly help us maintain our language and our ways. Thank you.”

The Chihene Nde Nation of New Mexico is a tribal organization that is seeking federal acknowledgment (re-recognition) as a distinct Indian Tribe under the requirements of 25 C.F.R. §83.8. The ChiNdé (Red Paint People) are descendants of Nde (Apache) people throughout Southern and Central New Mexico. The Chihene Nde Nation of New Mexico can demonstrate that they are a distinct Apache tribe once acknowledged by the government. The proof is based on a signed peace treaty between their ancestors and the United States government on June 9th, 1855, at Fort Thorne. This treaty is significant because it will give weight to their petition and could lessen the standard of proof under the requites of the statute. However, even though the tribe may be reviewed under a less stringent standard, the process will be costly and very difficult for them to prove. 

My paper offers a critique of the federal recognition process from the perspective of a tribe preparing their petition for re-acknowledgement. The Federal Acknowledgment process requires them to build a case to prove their identity and authenticity as indigenous. The tribe’s sacred traditions, oral and written historical documentation, and the beliefs will be scrutinized under subjective and restrictive standards that are rooting in colonialism. The paper explores the requisites of the administrative policies for non-recognized indigenous people to gain recognition and explains how they can be confined and invasive. The process in some instances may result in reopening wounds of traumatic pain that an indigenous group may have faced from government action. 

My paper is also a personal reflection, as I am a member of the Chihene Nde Nation of New Mexico. I have the unique opportunity to use this platform to present research on my tribe’s struggle to gain Federal Recognition. My research examined a series of documents obtained by our Tribal Chairman, Manny Sanchez, related to our tribe’s oral history, customs, traditions, and historical records that will be used in our petition. I reviewed various files compiled by our tribal leaders and historians that will be used in our petition. I also present the complexity of indigenous identity, expanding on research presented by tribal member, Judy Marquez, who shared her thesis on Indigenous identity and the ethnogenesis of Southwestern New Mexico. Identity is personal. Identity is also central to a tribe’s ability to self-determine and be considered legitimate under the U.S. government. Self-determination would give our tribe the ability to preserve our ways of life. 

By acknowledging the sovereignty of a tribe, the federal government also acknowledges “its own fiduciary responsibility to assure that native tribes have the necessary resources to provide for and protect their distinct cultural heritage.”[1] “The term ‘federally recognized tribe’ has become synonymous with ‘true’ Indian heritage.”[2] Non-recognized tribes face genetic trauma of government goals of taking their homeland for personal gain, while being victims of displacement, assimilation, and understanding that their ancestors were imprisoned and killed. In addition to this, being unrecognized means that they also are faced with the “stigma of [being considered a] second class Indian.”[3] For an unrecognized tribe a lot is at stake. Included in this quest, is their ability to authentically claim their rights to their identity as a people. For the unrecognized or forgotten people, “[a]cknowledgement is an affirmation of [their] heritage and official recognition of their tribal ancestry: an expression of their Indian pride.”[4] The risk of a rejected petition would further perpetuate trauma and stigmas to an entire people and the generations to come. 

In order for the Chihene Nde Nation to move forward with their goals to obtain federal recognition, they will be subjected to financial burden and the emotional cultural cost. Despite these negative ramifications, the Chihene Nde Nation must seek the path of federal acknowledgement because without it, they will be treated as second class Indians; without access to resources, legal protections, and without their right to self-determine as a sovereign and autonomous nation.  

Brief Biography of blog contributor Jessica I. Martinez

Jessica is a second-year law student at UNM School of Law. She is a member of the Chihene Nde Nation of New Mexico. The Chi’Nde are descendants of Apache people throughout Southern and Central New Mexico. The tribe is not federally recognized but is dedicated to the preservation of their language, culture, traditions, including protecting historic and sacred sites. 


[1] Alva C. Mather, Old Promises: The Judiciary and the Future of Native American Federal Acknowledgment Litigation, 151 U. PA. L. Rev.1827,184 (2003).

[2] Id.

[3] Id.

[4] Id. at 1837. 

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Law of Indigenous Peoples Paper Topic: Esther Jamison

Murdered and Missing Indigenous Women: A Roadmap for Advocacy Before the Inter-American Commission on Human Rights

The disproportionate level of sexual and physical violence experienced by indigenous women has garnered significant national and international attention in the past decade. Lethal violence against women is so common among indigenous communities in the United States and beyond that the phenomenon has acquired its own name: Missing and Murdered Indigenous Women (MMIW).[1] Although the problem has received significant tribal, state, federal and international scrutiny in the past few years, it has not before been addressed by an international human rights tribunal where the United States is the respondent state. 

While acknowledging efforts to remedy the problem of MMIW at tribal, local, state, and federal levels, my paper argues that a petition before the Inter-American Commission on Human Rights (IACHR) would enable a broader discussion of the root causes of the problem: principally, the erosion of tribal sovereignty and the removal of jurisdiction over major crimes from the tribes. Such a petition would assert both individual and collective rights: it would assert an individual’s right to an effective remedy—in particular an effective tribal remedy—and her right to be free from discrimination; additionally, it would assert the collective right of indigenous peoples to self-determination and self-government as a means to achieve that goal. 

Inter alia, my paper surveys the legal basis of an international human rights claim, examining international human rights instruments such as the American Declaration on the Rights and Duties of Man, the American Convention on Human Rights, the Universal Declaration on the Rights of Indigenous Peoples, and the International Covenant on Civil and Political Rights. It also examines relevant case-law in the American human rights system, which although not binding precedent in the international context, is highly persuasive. In particular, it examines the precedential value of: Mary and Carrie Dann v. United States for the right to sovereignty and self-determination of indigenous peoples; Jessica Gonzales (Lenehan) v. United States for the right to a remedy and the affirmation of positive duties on the part of the state to protect women from gender-based violence; and Gonzales et al. (“Cotton Field Case”) v. Mexico for the right to an effective criminal investigation and the right to be free from discriminatory treatment at the hands of investigatory authorities. 

A decision by the IACHR could address longstanding and entrenched sovereignty issues and suggest remedies such as the return of wholesale criminal jurisdiction to the tribes, along with the funding to make it workable. Failing that, my paper argues for the creation of positive duties on the part of the federal government to provide effective remedies for indigenous women, including the duty to protect them from human rights violations by non-state, private actors. 


[1] For the purposes of this paper, MMIW is used as a short-hand term that indicates the heightened levels of sexual and physical violence against indigenous women, whether or not that violence was fatal. 

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Law of Indigenous Peoples Paper Topic: Sean McKenzie

Examining Predatory Border Town Vehicle Sales from a Navajo Common Law Perspective

By Sean McKenzie

Background

            The Navajo Nation Human Rights Commission (“Commission”) has found that certain car dealerships located in towns surrounding the Navajo Nation “prey[ ] upon” Navajo consumers.[1] Predatory car sales practices include unethical sales practices designed to deceive consumers into signing unfair vehicle contracts.[2]  My research examined predatory border town car sales from a Navajo common law perspective. It found that efforts to address predatory car sales outside Navajo jurisdiction[3] should take into account Navajo common law values because these values may influence the car-buying experience of Navajo consumers. In particular, Navajo common law values can conflict with the values of car dealerships, making some Navajo consumers more vulnerable to predatory car sales practices.

Findings

            Western economic values emphasize individual economic success.[4] These Western economic models perceive the world as a competition between individuals for scarce resources.[5] Accordingly, Western economic models emphasize individual freedom and autonomy.[6] “The ‘self-made’ man is a hero.”[7] This individual-centric view influences Western law’s view of commerce.[8] Specifically, Western law tends to view commerce as made up of discrete transactions between individuals.[9] Western economic values therefore emphasize each party’s “freedom to contract”—the right of each party make a deal maximizing its own self-interest—even if such a deal negatively impacts the other party or community-at-large. 

            By contrast, Navajo fundamental law emphasizes harmonious relationships and healthy communities.[10] These values are reflected in the fundamental law doctrines of hózhók’é and k’éi.[11] Two important common law promissory values in the context of buyer-seller transactions flow from Navajo fundamental law’s emphasis on harmonious relationships and healthy communities: (1) the importance of dialogue, and (2) the sacredness of words. First, Navajo common law emphasizes that dialogue between parties to a transaction should be respectful, transparent, and honest because such dialogue preserves harmonious relationships.[12] Second, Navajo common law recognizes that “[w]ords are sacred and never frivolous in Navajo thinking[.]”[13] Accordingly, promises are sacred. As a result, some Navajo consumers, perhaps especially elders, may presume dealership employees will engage in transparent dialogue and honor oral promises because Navajo common law emphasizes respectful, transparent dialogue and the sacredness of words. In reality, border town dealerships are notorious for using words loosely to deceive consumers. For example, dealerships often make misleading or false oral statements to Navajo consumers regarding the condition of a vehicle, the terms of the warranty, and the loan package.

Limitations and Methodology

            Several methodological limitations affected this analysis. Most importantly, the author, an Anglo male who grew up in the Navajo Nation border town of Gallup, New Mexico, has no lived experience of Navajo common law. This analysis therefore relied exclusively on written materials to make hypotheses about how Navajo common law values impact the car-buying experience of Navajo consumer. While most of these written materials are primary sources, such as Navajo Supreme Court decisions, the author nonetheless interprets these texts through the eyes of an outsider. 


[1] Navajo Nation Human Rights Comm’n, Assessing Abuse of Navajo Customers When Purchasing Vehicles in Border Towns, 19 (Mar. 7, 2014), http://www.nnhrc.navajo-nsn.gov/docs/NewsRptResolution/PublicHearingReports/NNHRC_AutoReport.pdf.

[2] Id. at 13-18.

[3] The Navajo Nation has acted aggressively to combat predatory car sales within its border, including  passing the Navajo Consumer Protection Act. 

[4] See generally Adam Smith, The Wealth of Nations (1776); see also Valerie Phillips, Parallel Worlds: A Sideways Approach to Promoting Indigenous – Ionindigenous Trade and Sustainable Development 4 (October 4, 2007) (unpublished manuscript) (available at https://ssrn.com/abstract=1019077). 

[5] Id.

[6] Michael D. Lieder, Navajo Dispute Resolution and Promissory Obligations: Continuity and Change in the Largest Native American Nation, 18 Am. Indian L. Rev. 1, 57-58 (1993), https://digitalcommons.law.ou.edu/ailr/vol18/iss1/2

[7] Id. 

[8] Id.

[9] Id.

[10] Austin, supra note 69, at 40-41.

[11] Id.

[12] Green Tree Servicing, LLC v. Duncan, 7 Am. Tribal Law 633 (Nav. Sup. Ct., 2008).

[13] Kesoli v. Anderson Sec. Agency, 6 Am. Tribal Law 692, 696, 8 Nav. R. 724, 724 (Nav. Sup. Ct. 2005).

Categories
Student Research Topics

Law of Indigenous Peoples Paper Topic: Kristen Polk

Last semester in Professor Zuni Cruz’ Law of Indigenous Peoples course, I chose to fulfill my writing seminar requirement by researching an issue of great importance to my tribe: protection of sacred Apache holy sites. My paper, Indigenous Resistance: The San Carlos Apache Fight to Protect Sacred Holy Sites, discusses Apache resistance to the desecration of sacred sites as a modern-day embodiment of the indigenous legal tradition of the San Carlos Apaches. It illustrates the resiliency of the San Carlos Apaches, that despite a history of forced removal and assimilation, San Carlos Apaches are fighting for our inherent right to be Apache by utilizing the indigenous legal tradition. 

In the paper, I explore the San Carlos Apache fight to protect sacred holy sites and identify traditional Apache beliefs as the legal tradition of the San Carlos Apaches. Part I discusses the historical background, relating to creation of the San Carlos Apache Tribe, that is necessary to understand the complexities of legal protection for Apache Holy sites. Part II broadly identifies the traditional beliefs of the San Carlos Apaches as the chthonic law of the San Carlos Apache Tribe. Part III examines the San Carlos Apache resistance to the attempted desecration of two sacred sites, Mt. Graham and Oak Flat, as evidence of a modern-day survival of the indigenous legal tradition of the San Carlos Apache Tribe. 

In researching the issues, largely due to the nature of the work, my methodology consisted of qualitative methods such as interviews, literature reviews, and legal research. I began with informal interviews with San Carlos Apache elders within the reservation community in order to understand the history and importance of these sacred sites from the Apache perspective. Additionally, I consulted various journal articles, legislative documents, court cases, and newspaper articles. 

In summation, I chose to pursue this topic as a means of learning more about the legal issues surrounding my tribe’s efforts to protect sacred places and bring light to the battle that the San Carlos Apaches are fighting in order to preserve our inherent right to practice our Apache religion within ancestral lands. Furthermore, as a Native American law student, I found this experience of being able to research my own tribe’s legal issues profoundly important. For me, the experience highlighted the importance of having Native American voices as legal advocates for issues that are important to our communities and the future of our people. 

Ahíyi’é

Kristen Polk is a second-year law student at the University of New Mexico School of Law. She is a member of the San Carlos Apache Tribe and endeavors to pursue a career practicing Indian and Tribal law.