In Defense of Property

This Article responds to an emerging view, in scholarship and popular society, that it is normatively undesirable to employ property law as a means of protecting indigenous cultural heritage. Recent critiques suggest that propertizing culture impedes the free flow of ideas, speech, and perhaps culture itself. In our view, these critiques arise largely because commentators associate property with a narrow model of individual ownership that reflects neither the substance of indigenous cultural property claims nor major theoretical developments in the broader field of property law. Thus, departing from the individual rights paradigm, our Article situates indigenous cultural property claims, particularly those of American Indians, in the interests of peoples rather than persons, arguing that such cultural properties are integral to indigenous group identity or peoplehood, and deserve particular legal protection. Further, we observe that whereas individual rights are overwhelmingly advanced by property law\u27s dominant ownership model, which consolidates control in the title-holder, indigenous peoples often seek to fulfill an ongoing duty of care toward cultural resources in the absence of title. To capture this distinction, we offer a stewardship model of property to explain and justify indigenous peoples\u27 cultural property claims in terms of non-owners\u27 fiduciary obligations toward cultural resources. We posit that re-envisioning cultural property law in terms of peoplehood and stewardship more fully illuminates both the particular nature of indigenous claims and the potential for property law itself to embrace a broader and more flexible set of interests

The Air We All Breathe: Internet Bans in Probation Conditions— Dalton v. State

In today’s world, the Internet is synonymous with opportunity. Recently, the Supreme Court has even recognized a First Amendment right to access the Internet. However, it is still common practice to assign the special conditions of Internet bans or restrictions for individuals on parole or supervised release. Courts have split on how to strike a balance between the goal of deterrence and protection of an individual’s rights. The Court of Appeals of Alaska weighed into this ongoing debate in Dalton v. State, by holding that a restriction requiring prior approval from a parole officer before any and all Internet use was unconstitutionally broad. This decision marked a departure from precedent, and a general recognition that the Internet has become an indispensable part of living in, and importantly, successfully reentering society today

A Conceptual Model of Rural Household Food Insecurity: A Qualitative Systematic Review and Content Analysis

This systematic review explores experiences of household food insecurity in rural areas of developed countries. A search of 5 databases resulted in 32 peer-reviewed articles for inclusion. Data were analyzed using directed content analysis to broaden the understanding of rural household food insecurity. Elements of food security (ie, availability, accessibility, acceptability, adequacy, and agency) were exemplified across the literature. In addition, 4 key themes were found: exercising human capital, realizing social capital, coping with compounding stressors, and navigating complex systems. This review demonstrates the need for interventions that improve social connectedness, individual coping skills, and system navigation

Indigenous Peoples and the Jurisgenerative Moment in Human Rights

As indigenous peoples have become actively engaged in the human rights movement around the world, the sphere of international law, once deployed as a tool of imperial power and conquest, has begun to change shape. Increasingly, international human rights law serves as a basis for indigenous peoples\u27 claims against states and even influences indigenous groups\u27 internal processes of decolonization and revitalization. Empowered by a growing body of human rights instruments, some as embryonic as the 2007 United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), indigenous peoples are embracing a global human rights culture to articulate rights ranging from individual freedom and equality to collective self-determination, property, and culture. Accordingly, this Essay identifies and provides an account of what we see as an unprecedented, but decidedly observable, phenomenon: the current state of indigenous peoples\u27 rights-manifesting in tribal, national, and international legal systems-reflects the convergence of a set of dynamic, mutually reinforcing conditions. The intersection of the rise of international human rights with paradigm shifts in postcolonial theory has, we argue, triggered a jurisgenerative moment in indigenous rights. Bringing indigenous norms and values to their advocacy, indigenous peoples have worked to assert their voices in, and indeed to influence, the human rights movement. Indigenous peoples are now using the laws and language of human rights, shaped by indigenous experiences, not only to engage states but also as a tool of internal reform in tribal governance. This is, in our view, a jurisgenerative moment in indigenous rights--a moment when both the concept and practice of human rights have the potential to become more capacious and reflect the ways that individuals and peoples around the globe live, and want to live, today

Privatizing the Reservation?

The problems of American Indian poverty and reservation living conditions have inspired various explanations. One response advanced by some economists and commentators, which may be gaining traction within the Trump Administration, calls for the “privatization” of Indian lands. Proponents of this view contend that reservation poverty is rooted in the federal Indian trust arrangement, which preserves the tribal land base by limiting the marketability of lands within reservations. In order to maximize wealth on reservations, policymakers are advocating for measures that would promote the individuation and alienability of tribal lands, while diminishing federal and tribal oversight. Taking a different view, this Article complicates and challenges the narrative of Indian poverty and land tenure advanced by privatization advocates. We focus on real estate and housing in Indian Country to make three points. First, we argue that the salience of Indian homelands as places of collective religious significance, socioeconomic sustenance, and territorial governance has been lost in the privatization debate, which also largely disregards issues of remedial justice associated with conquest and colonization. Second, we introduce to the legal literature new empirical data and economic analysis from the Native Nations Institute demonstrating that the current system of land tenure in Indian Country is much more varied, and recent innovations in federal-tribal housing and finance programs are more promising, than some of the calls for privatization would suggest. Finally, using specific examples from Indian Country, we highlight a model of indigenous self-determination and sustainability, rooted in the international human rights movement, that deserves attention in ongoing domestic policy debates about land tenure, and which has the potential to advance the well-being of humanity more broadly

Decolonizing Indigenous Migration

As global attention turns increasingly to issues of migration, the Indigenous identity of migrants often remains invisible. At the U.S.-Mexico border, for example, a significant number of the individuals now being detained are people of indigenous origin, whether Kekchi, Mam, Achi, Ixil, Awakatek, Jakaltek or Qanjobal, coming from communities in Venezuela, Honduras, Guatemala and other countries. They may be leaving their homelands precisely because their rights as Indigenous Peoples, for example the right to occupy land collectively and without forcible removal, have been violated. But once they reach the United States, they are treated as any other migrants, without regard for their status or experience as indigenous peoples. In a recurring set of events, indigenous detainees have been presented translation and legal services in Spanish, when they actually speak only an indigenous language, in cases associated with the separation of children from their families and even the death of individuals unable to describe their health care situation to service providers.In this article, we argue that accounting for the experience of Indigenous Peoples is critical to advancing a human rights approach to migration, and addressing the legacies of conquest and colonization that undergird state policies on territorial sovereignty and border regulation. On the one hand, Indigenous Peoples like other migrants are often fleeing situations of economic, social, and political unrest in their countries. They seek personal and familial security, economic mobility, and political freedom. On the other hand, as “peoples” with political and cultural rights to self-determination and territory, indigenous peoples experience discrimination and violence not only in their individual capacities, but also with respect to their survival as collective entities. Moreover, Indigenous worldviews and relationships with traditional landscapes often predate, by hundreds or thousands of years, the contemporary boundaries of states. For example the Haudenosaunee people of North America recognize their homeland as “Turtle Island” a place not inherently defined by current borders between the U.S. and Canada. The Yaqui and Tohono O’dham peoples’ community and ceremonies stretch across the much contested Mexico-U.S. border, such that their lives and lands have become militarized zones. Family members, sacred sites, subsistence habitats, and migration patterns are similarly dispersed across current socio-political fault lines.Accordingly, the UN Declaration on the Rights of Indigenous Peoples recognizes that when indigenous peoples are “divided by international borders,” they “have the right to contacts, relations and cooperation, including activities for spiritual, cultural, political, economic and social purposes, with their own members as well as other peoples across borders.” Other articles define the right to be from violence, to keep families intact, and to maintain an Indigenous identity without reference to national identity or citizenship status. But recognition and realization of these rights raises difficult questions – for example, if Indigenous cultural identity is tied to land and territory, do Indigenous Peoples retain their rights following relocation and displacement? As societies are more mobile, are concepts of individual identity and collective self-determination also mobile, do they go with indigenous peoples when they cross borders whether internal or external to nation-states? Whose obligation is it to effectuate such rights? Can the situation of Indigenous Peoples as migrants be meaningfully addressed through legal regimes of asylum and refugee law – or must they implicate international diplomacy and norms of state-indigenous relations. These are other questions are left largely untouched by federal law in the United States as well as the 2018 Global Compact on Migration. By focusing on the situation of Indigenous Peoples, this article pushes migration law, both in theory and practice, to consider more fully its colonial origins and impacts, and incorporate a broader concept of individual and collective human rights going forward