Breaking new ground on Indigenous law

Tribal statutes apply within tribal jurisdictions, and thus they do not impact anyone off tribal land or without some sort of contractual consent. Moreover, federal preemption laws still apply, and thus it is unlikely that a conflict would occur. Further, tribal attorneys are used to working within a checkerboard of competing, overlapping and sometimes conflicting areas of jurisdiction. Trying to parse who has jurisdiction over what and whom is part of what Indian law attorneys do every day. Thus, tribal attorneys drafting laws for their nation are likely to look at U.S. law when crafting legislation in an effort to avoid conflicts. The exercise of the drafting, however, is part of the exercise of sovereignty, and the crafting of any statute must be done with tribal cultural expressions and perspectives in mind. 

With all of that said, there are several implications to what non-Indian law practitioners can learn from tribal legislative drafting. First of all, tribal legislative drafting teaches us about the importance of learning who or what entity has jurisdiction over specific people, places and subject matters. Second, this drafting exercise teaches us how to avoid conflicts in jurisdiction and language or applicability. Third, the drafting exercise teaches us the “why” of drafting and language choice. The “why” of a tribal nation will be different from the federal laws or state laws. And learning that “why” can bring greater understanding and respect for all involved in the process.

The Native Peoples Law Caucus of the American Association of Law Libraries has advocated to the Harvard Law Review team for the Bluebook that tribal law sources are missing from their citation examples. This advocacy has taken many forms over the years. Essentially, the argument became that failing to include tribal law sources and examples for citation left a massive hole in the realm of legal citation. Practitioners needed to know how to cite the sources in tribal law from a general perspective. Recently, the Harvard Law Review team was ready to consider some general rules, best practices and examples of citation format to consider adding to the Bluebook. Amber Madole led the Native Peoples Law Caucus, and the team to offer suggestions included myself, Bonnie Shucha, Rachel Nelson, Shay Elbaum, Darla Jackson, Shania Kee, Rebecca Fordon and Sherri Thomas. We worked on citation for statutes, tribal case law, tribal resolutions and constitutions. Without general citation rules to follow, many practitioners were just “winging it” when going into court with their citations. As we anticipate the 22nd Edition of the Bluebook, it is well past time that practitioners have some general rules and format examples for tribal legal practice.

The Haudenosaunee Archive and Resource Knowledge (HARK) portal will be a digitized platform that acts as a spoke-and-hub model for tribal research. The HARK team is part of the Department of Indigenous Studies within the College of Arts and Sciences. The team is starting with researching and identifying Haudenosaunee and Indigenous materials publicly available through UB to digitize and become searchable in the final platform. The later stages of the work will see the HARK team working with tribal repositories and archives to digitize their information and items to become searchable on the platform. 

The final product will be a research portal that serves as a main landing point for researchers of tribal information. From the main landing page, scholars will be able to access and research materials at UB and around the various tribal repositories with relative ease. I am humbled and honored to support the work of the HARK team in any way that I can. I have helped identify certain resources and assisted with access to parts of UB’s archival holdings. I cannot wait to see how the team’s work develops over time.

There are several factors constraining tribal control over their own information. For example, funerary objects and human remains or DNA have been stolen from tribal communities. Even when objects are not stolen, scholars have come to communities in the name of research and taken DNA, songs, stories and more without acknowledging the community, their part in the work or how they would limit access to the items and information. There are few legal constraints on this sort of work. U.S. copyright, for example, does not protect tribal songs, stories and dances.

Because these items are not identified with a specific author or creator, they are unprotected by copyright. This leads to rampant misuse without tribal approval. It creates an ethical gray area that requires scholars to be more scrupulous with their research and their work than is legally required. 

Librarians can help with this path forward. If we identify the gap and educate scholars on ethical best practices with tribal communities, then scholarly works can continue in a more respectful manner. Moreover, in identifying the gap and those best practices, librarians can advocate for tribal communities to pass their own copyright legislation as an act of sovereignty. Tribal communities can strengthen the role of any internal review board for approval of scholarly research projects and art. That is one way in which librarians can promote tribal sovereignty.