Harvard Law Review publishes article by Regents Prof. Kevin Washburn
April 11, 2017 - Tamara Williams
“What the Future Holds: The Changing Landscape of Federal Indian Policy” by UNM School of Law Regents Prof. Kevin Washburn was published in the April 2017 edition of the Harvard Law Review.
Washburn is nationally recognized for his knowledge of tribal issues, service as Assistant Secretary for Indian Affairs at the Department of Interior, and prolific portfolio of books, book chapters, articles and congressional testimony. Nevertheless, Washburn says it is a “rare thrill” to be published in the Harvard Law Review.
An excerpt of Washburn’s article follows:
Since first described by Chief Justice John Marshall, the United States has been deemed to have a moral and legal "trust responsibility" to the American Indian tribal nations that gave way so that the United States could exist. For nearly two centuries, the trust responsibility reflected a paternalistic view toward Indian tribes. As the United States has developed a more enlightened policy characterized by greater respect for “tribal self-governance,” tribal governments have experienced a renaissance. Federal policy has moved away from federal control and toward tribal empowerment. As a result, the trust responsibility’s paternalistic features have come to seem anachronistic, and the trust responsibility can be described today by a new set of norms. The evolution, however, is not complete. Some of the old paternalistic features continue to animate federal Indian law and serve as obstacles to tribal self-governance. Moreover, as tribal governments exercise greater powers, they are subject to new scrutiny. Perhaps ironically, even some Native Americans have sought to reinstate federal oversight of tribal nations. The shifting norms of federal policy have produced new conflicts and will require a new reckoning about the federal role as old norms clash with new.
