Project for a New Framework of Law

 In June of 2006, we began work on a new project to create a new framework of law relating to Indian lands and resources.  This new framework of legal principles will be put forward to replace the present system of discriminatory, racist, and unjust legal rules relating to Indian lands.  The present body of legal rules is outmoded and clearly inconsistent with the United States Constitution and modern concepts of fairness and human rights.  The existing body of discriminatory and unjust principles impedes or completely prevents tribes from acting effectively to regain, protect, and manage their lands and resources.  This body of law is coming under serious attack from Indian nations and Indian individuals.  It is also under strong attack from formal international human rights bodies such as the UN Committee on the Elimination of Discrimination that have determined aspects of the law to be racially discriminatory and a denial of equality before the law.  This body of law is ripe for criticism and changes that will give serious legal protection to Indian lands.  We believe that reform will come more readily if we can show concretely and in a general way what we believe a fair and reasonable framework of law would be.

  The project is intended to create a positive, forward-looking statement of what we believe the federal law really is, taking into account the legal requirements of the United States Constitution, Indian treaties, principles of human rights law, and universal principles of justice and fairness.  This new statement of the law will be used to argue for law reform, to urge the courts, Congress, and the Administration to stop applying the racist doctrines of the past, and to provide an affirmative vision for future law reform efforts.  It will be a proposal or draft of what a just and workable framework of law would look like in the field of Indian lands and resources.

  We have written a first draft of the General Principles Relating to Indian Lands and Resources.  Additional principles are under consideration, and it is likely that a few additional principles will be added.  Thus far, reaction from law professors and Indian leaders has been very positive.  We are awaiting more in-depth criticism.

  Law professors at eight law schools have made firm commitments to this project, and a few others are likely to join in the next few months.  Professors who have agreed to supervise law student researchers are: Professor Philip Frickey, University of California School of Law; Prof. Robert Anderson, Minnesota Chippewa Tribe, University of Washington School of Law; Prof. Joseph Singer, Harvard Law School; Prof. Ray Cross, Mandan, Hidatsa and Arikara Nation, University of Montana School of Law (with Maylinn Smith, Director, Indian Law Clinic); Prof. David Kairys, Temple University School of Law; and Prof. Angela Riley, Citizen Potawatomi Nation, Southwest School of Law, Professors Matthew Fletcher, Chippewa, and Winona Singel, Ottawa, Michigan State University Law School, and Prof. Lindsay Robertson, University of Oklahoma Law School.

  We are very pleased with the reception we have received from those we have discussed the project with, mostly law professors and a few Indian law practitioners.  The idea has been greeted with a lot of optimistic interest and cheerful good will on the part of the law professors.

To read more about the process of this project, please click here to read an article from our enewsletter Indigenous Notes.