Volume 17: 2016-2017
Professor Christine Zuni-Cruz
Student Editor-In-Chief/Managing Editor
Megan Horning and Tierra (Tia) Marks
Social Media Editor
Federal Restrictions on Tribal Customary Law: The Importance of Tribal Customary Law in Tribal Courts
Concetta R. Tsosie de Haro
This article examines the adverse effects of federal case law and legislation on tribal courts and tribal courts’ ability to incorporate tribal customary law. Tribal customary law is the law given to tribes by holy deities which governs tribal ways of life. It is important to maintain tribal customary law because it strengthens tribal communities’ identities and cultural foundations. While Supreme Court precedent has, at different times, both restricted and promoted tribes’ ability to use tribal customary law to adjudicate the cases of tribal members, federal legislation including the Major Crimes Act, the Indian Civil Rights Act, the Tribal Law and Order Act, and the Violence Against Women Act continues to restrict tribes’ ability to apply customary law in tribal courts. To illustrate one way in which current federal Indian policy limits tribes’ ability to use customary law, the author highlights the ways in which two-spirit tribal members are excluded and ignored by the protections established in the Violence against Women Act. As the use of tribal customary law is critical to the maintenance of tribal sovereignty, this article advocates for corrections to these legislative restrictions to promote tribal court’s use of tribal customary law.
As in many Native American communities, alcohol use and abuse is an all too common problem among the Ashwi, members of Zuni Pueblo. Soon after the arrival of Anglo-American settlers, alcohol was introduced to the Zuni. Seeing its devastating effects, Zuni elders referred to this intoxicating substance as ‘black water.’ Since the introduction of black water, alcohol abuse among the Zuni has resulted in community members committing frequent criminal offenses, numerous health problems, and is the number-one cause of premature death among the Zuni. Over the last century and a half, the devastating effects of black water have eroded the Zuni core value of caring for one another. Throughout this time, leaders of Zuni Pueblo have struggled to combat this growing alcohol problem by using punishments derived from the western justice system like fines and incarceration. These western punishments have proved to be less of a deterrent and more of a hindrance to community members struggling with alcohol addiction. Thus, this article calls Zuni community members and leaders to action to find effective ways to address the problems black water has created within Zuni Pueblo. The final part of this article provides suggestions for holistic and collaborative community-focused solutions to alcohol abuse at Zuni. These solutions are aimed at lessening the devastating effects of black water among the Zuni and, most importantly, advocating to ensure that Zuni children are cared for and the core values of the Zuni are revitalized and cherished to make Zuni a better place for generations to come.
“Postcolonial” Management of the Transboundary Guaraní Aquifer System: Indigenous Input As A Guide For Environmental Sustainability
This article discusses the Guaraní Aquifer System, which is a vast groundwater source that spans across Argentina, Uruguay, Paraguay, and Brazil. The Guaraní Aquifer System is located beneath the ancestral homelands of the Guaraní indigenous peoples, yet it is exclusively managed by nation states. The Guaraní indigenous peoples have been deprived of their ancestral land and have no say in the utilization or management of the Aquifer. This article discusses social and legal theory relating to water management and governance, as well as Guaraní social organization, belief systems, and customary environmental law in the context of “postcolonial” water management. This article explores international transboundary water law, relying on United Nations conventions and the Bolivian Constitution to provide examples of indigenous participation in decision-making processes.