The Indigenous Peoples’ Journal of Law, Culture & Resistance

Colonialism in northern Canada is not a historical artefact because the bureaucratic structure of colonial government persists. If parts of southern Canada are discussing post-colonial frameworks, then we must consider that the northernmost Territory of Nunavut ("our land") is in a syn-colonial condition and the present trend is for it to continue. Canada endorsed the United Nations Declaration on the Rights of Indigenous People in 2016 and enacted it in 2021. If Canada is truly committed to a philosophy of reconciliation and decolonization, then it will make policy changes in the north that follow a guiding principle of self-determination for indigenous people. The simplest changes would be 1) to deliver more Inuktut instruction in schools and 2) to add knowledge of Inuktut to the essential hiring criteria for the entire Government of Nunavut (GN).

California dispossessed Indian tribes of millions of acres in the decades following the State’s founding. Loss of tribal land and waters largely cut off Indian tribes from ancestral territories on which they depend for food, culture and identity. Tribal arguments for rights to these areas outside their reservations have some support in the law, but solutions are better produced in a collaborative process between sovereign Indian tribes and State resource agencies. Recent changes in State policy that seek to remedy historic injustices and respect tribal sovereignty provide opportunities for joint efforts. The authors propose seven options for discussion among Indian tribes and State agencies. The goal is to catalyze a process by which the tribes and agencies may together determine how best to revitalize tribal connections to State lands and waters that formerly belonged to the tribes, but for whom such areas hold cultural and economic significance.

Built on a colonial discourse of justifiable Christian conquest, United States federal Indian law and policies have specifically targeted American Indian religious practices as a way to assimilate American Indians into the dominant colonizing culture and to undermine tribal sovereignty. Federal policies throughout colonization and into the present have drastically swung between denying American Indian religious practice and allowing for it under federal control, creating a confusing string of conflicting precedent. Although the worst of these practices has largely been abandoned, the paternalism of the United States government continues today with the creation and oversight of a permit system, which regulates the use and possession of bald and golden eagle feathers and parts (hereafter “eagles”). This article explores the history of federal policies aimed at American Indian religious practices to demonstrate the ways in which American Indian religious freedom law has been built on precedent and changing policies. I examine the function and regulations of the eagle permit process to situate it within recent challenges to its constitutionality using the First Amendment and the Religious Freedom Restoration Act (RFRA). In doing so, I outline the benefits and pitfalls of pursuing such challenges in the United States Supreme Court. Looking at the success of tribe-to-administrative agency negotiations, this article highlights the 2018 petition to Fish and Wildlife Services as an alternative method to pursuing American Indian religious freedom by accessing eagle parts.

This article argues that the state of Hawai’i should encourage and provide legislative protection for practicing pule in K-12 public schools on a regular basis for cultural and educational purposes. The Hawai’i state constitution should have specific provisions regarding the time, venue, and practitioners of pule. Hawai’i state laws should provide greater protection of Native Hawaiian religious rights than federal laws. Part II introduces the educational and cultural values of pule, its connection with ‘Ōlelo Hawai’i (Native Hawaiian language) from the past to present, and pule practices as educational programs at public schools can contribute to the Third Hawaiian Renaissance. Part III reviews the current Hawai’i state law protection of pule in public schools under constitutional, administrative, and judicial power, and examines what can be done in order to extend these protections. Part IV scrutinizes the challenges from the U.S. Constitution First Amendment’s Establishment Clause in the separation of church and state, and compares different federal laws related to indigenous rights.

The Indian Child Welfare Act (ICWA) is a law that was passed to address the removal crisis of American Indians from their community to non-Indian families. The removal crisis is a result of centuries of detrimental federal government policies such as assimilation laws and boarding schools and campaigns to “adopt out” Indian children. ICWA has been challenged over the years in court but has prevailed. Although child removal has decreased slightly since its adoption, the data on removal are still shocking and must be addressed. The most recent development in the fight over ICWA is Brackeen v. Bernhardt where a non-Indian adoptive couple is suing over ICWA’s constitutionality under the equal protection clause and Tenth Amendment. Because of the confusion between the lower courts, the case is likely to be decided by the Supreme Court.

Meanwhile, the United Nations Declaration on the rights of Indigenous People (UNDRIP) is an international instrument that was adopted by the UN General Assembly in 2007. UNDRIP proclaims a comprehensive list of collective and human rights held by indigenous peoples and individuals. UNDRIP is watershed legislation, the first to legally recognize indigenous people’s rights on the international stage. The Declaration’s Articles include the right of indigenous people and their children to not be subject to removal from their culture or be subject to forced assimilation into others. The Articles are remedial in nature; they highlight the government’s obligation to pass and enforce legislation such as ICWA to mitigate a legacy of removal created by federal government policies.

I argue that the Supreme Court should use UNDRIP to find in favor of the Defendants and ICWA’s constitutionality. I will explain how, although an international document, UNDRIP is especially authoritative in the Brackeen case where American Indigenous peoples’ rights hang in the balance. I will show how the substance of UNDRIP can assist the Court in its constitutional analysis. And lastly, I will provide two examples of how a domestic court and foreign court have already begun to utilize UNDRIP in similar cases, demonstrating UNDRIP’s relevance and suitability to the Brackeen litigation.