Author: Matthew L.M. Fletcher

Stanford Law Review Online Student Essay Competition

Matthew L.M. Fletcher

The Stanford Law Review Online is excited to announce our student essay competition! 

Two winners will each receive a $500 prize and publication of their up to 5,000 word essay. We encourage submissions from all current students (including LLMs) and recent graduates of any ABA-accredited American law school. We especially encourage submissions from those who have not yet published academic works.

Prompt:

Our theme this year is the ulterior or unintended effects of legal decisions. The law and those who practice it wield considerable power over the lives of the average person. It would be comforting to believe that those who make and interpret laws act with deliberate and benevolent purpose. But that is not always the case. Occasionally, perhaps even often, legal decisions have unintended or ulterior consequences. Sometimes those consequences can be humorous, such as a resident flaunting a Homeowner’s Association rule about paint color by plastering gaudy wallpaper on the outside of her home. Other times, those consequences can be much more tragic, as with exclusionary zoning laws that ensure an absence of affordable housing in affluent areas, exacerbating existing inequities and contributing to evictions and homelessness.

The Stanford Law Review invites current law students and recent alumni of any law school to discuss a legal instrument–including a contract clause, a court judgment, or a federal regulation–that had an unexpected or ulterior effect. We welcome submissions that apply this prompt to policing, the topic of SLR’s forthcoming symposium in coordination with Stanford BLSA.

Rules:

Our competition is open to current law students, LLMs, and graduates of the classes of 2020, 2019, and 2018 from ABA-accredited American law schools. Submissions are limited to one essay of up to 5,000 words (inclusive of footnotes) per person.

Submissions must be unpublished and exclusively submitted to this competition during the competition window, lasting from date of submission to date of final publication decision.

We will begin accepting pieces immediately and will close the submission window on January 4, 2021 at 11:59 PM. We aim to notify all applicants of publication decisions by January 18, 2021.

Please submit your essay as a Word document attachment in an email to Carly Grimes at cgrimes1@stanford.edu. This word document must be blinded. Your name must not appear in the document and you must follow instructions for removing identifying metadata available here: https://tinyurl.com/blindingessay 

Direct any questions about the competition to Carly Grimes, cgrimes1@stanford.edu 

Justice Ginsburg’s Indian Law Record

Matthew L.M. Fletcher

Justice Ruth Bader Ginsburg’s passing offers an opportunity for reflection on her Indian law legacy. As many of you know, we keep a list of modern era Supreme Court cases here. RBG was on the court nearly 30 years, and her record is extensive. It is also, from the point of view of tribal interests, checkered. But if her replacement had a similar record, it wouldn’t be a disaster for Indian country.

Overall, RBG voted in 51 cases in which the Court issued an opinion. She voted with tribal interests 23 1/2 times, against tribal interests 26 1/2 times, and 1 time voted with individual Indians against federal and tribal interests. She wrote 10 majority opinions (nearly 20 percent of those cases!), 3 1/2 favoring tribes (and 1 favoring individual Indians), and 6 1/2 against. Out of these 51 cases, tribes won 19 1/2 cases and lost 32 1/2 (33 1/2, if you count the 1 case involving individual Indians). She voted with tribal interests more often than the Court, but not by much. There are also two cases that were 4-4 ties (tribes won both), but we don’t know where she voted. [there are going to be errors in this post, I did it quickly, so chillax]

Incidentally, tribes have prevailed in 11 out of 13 cases since 2014 (!!!!).

Here are her majority opinions in reverse chronological order:

U.S. v. Bryant (2016)

Decision favoring federal court enhanced sentence under 18 U.S.C. § 117 of habitual D.V. offender with several (dozens?) of uncounseled tribal court convictions.

Sherrill v. Oneida Indian Nation (2005)

Terrible. Some say RBG regretted this decision. Led to the summary evisceration of the New York Haudenosaunee land claims.

Inyo County v. Bishop Paiute (2003)

Held tribes are not “persons” under 42 U.S.C. § 1983, and cannot sue states for violations of federal laws.

United States v. Navajo Nation (2003)

Struck a $600 million judgment favoring the Navajo Nation despite apparent corruption in the Interior Department.

C&L Enters v. Citizen Potawatomi (2001)

Found an implied waiver of tribal immunity in a boilerplate construction contract. RBG routinely voted against assertions of tribal, state, and federal immunuiy.

Arizona v. California (2000)

Allowed Quechan Tribes water rights claims to proceed.

Montana v. Crow Tribe (1998)

Excused state from having to repay taxes illegally collected from tribe.

Strate v. A-1 (1997)

Held against tribal jurisdiction over a car wreck on a state highway running on trust lands within a reservation.

Babbitt v. Youpee (1997)

Struck down the Indian Land Consolidation Act’s escheatment provision in favor of individual Indian interests.

Oklahoma Tax Commission v. Chickasaw Nation (1995)

Adopted incidence of tax analysis to strike state tax of motor fuels but to allow collection of state income tax of off-reservation income of tribal members.

RBG also wrote important concurrences and dissents. Here is a sampling:

Patchak v. Zinke (2018)

Wrote concurrence affirming constitutionality of Gun Lake Trust Lands Act in 5-4 case.

Lewis v. Clarke (2017)

Wrote concurrence against tribal interests in tribal employee immunity case.

Nevada v. Hicks (2001)

Wrote concurrence, apparently trying to stop the extension of her opinion in Strate.

Here is where I called Donald Trump an asshole for predicting RBG’s death. He remains an asshole.

There is a lot more to say, but this is it for now.

Emory to Host Panel on McGirt

Matthew L.M. Fletcher

Monday, October 12 | 4 PM | ZOOM
McGirt V. Oklahoma: Understanding the Implications of the Recent Supreme Court Decision Across Native America

In celebration of Indigenous Peoples’ Day, Emory University Professor of English Craig Womack (Creek) chairs a panel discussion titled McGirt V. Oklahoma: Understanding the Implications of the Recent Supreme Court Decision Across Native America. 

Sarah Deer (Creek), University of Kansas Department of Women’s, Gender, and Sexuality Studies; Barbara Creel (Jemez Pueblo), University of New Mexico School of Law; and Andrew Adams III (Creek), Muscogee Creek Nation Supreme Court; and Professor Womack will explore the implications of the decision regarding the Creek Nation for Oklahoma tribal nations and other parts of Indian Country.   

ZOOM registration link for this webinar: https://emory.zoom.us/webinar/register/WN_fY3DxgwFTw-SDJDB_owEbA

This lecture is made possible through the generous financial support of the Hightower Lecture Fund and is co-sponsored by the Native American and Indigenous Students Initiative, the Michael C. Carlos Museum, and the School of Law Health Law, Policy & Ethics Project.

Katherine Florey on Regulatory Sovereignty in the Pandemic

Matthew L.M. Fletcher

Katherine Florey has posted “Toward Tribal Regulatory Sovereignty in the Wake of the COVID-19 Pandemic,” forthcoming in the Arizona Law Review. Here is the abstract:

The media has often highlighted the devastating toll COVID-19 has taken in many parts of Indian country – and that, to be sure, is part of the story. But there are other aspects of the picture as well. On the one hand, tribes have taken resourceful and creative measures to combat COVID-19. On the other, a troublesome doctrinal landscape has complicated their efforts to do so. The judicially crafted Montana framework severely restricts tribal civil regulatory power over nonmembers – a particular problem during the COVID-19 pandemic, when nonmembers have defied tribal curfews, camped in prohibited areas, and opened businesses on reservations despite closure orders. While Montana nominally contains a “health and welfare” exception allowing tribes to exercise power over nonmembers in emergencies, its contours are too ambiguous and fact-specific to allow tribes to act with the certainty and speed they require. The pandemic thus provides a vivid illustration of the way in which Montana hinders effective tribal governance. Further, the pandemic has occurred at a moment when the Court may be more receptive than it has been in the past to arguments favoring tribal sovereignty – and at a time when many of the concerns about tribal regulation that motivated the Court four decades ago in Montana seem increasingly distant both from current doctrine and contemporary tribal realities. As a result, it is time, at a minimum, for the Court to expand Montana’s “health and welfare” exception to resemble something closer to the powers states possess to safeguard public health.

Wisconsin Journal of Law, Gender & Society Call for Papers: “Confronting Violence against Indigenous Women, Children, and Peoples”

Matthew L.M. Fletcher

Here:

WJLGS_Call_for_Papers_2021_FINAL

Proposals should be submitted to Lorenzo Gudino at gudino@wisc.edu and Jennifer Acevedo at acevedo3@wisc.edu no later than October 23, 2020.  Submissions may be published and unpublished works. The Wisconsin Journal of Law, Gender & Society will likely publish accepted unpublished submissions. Authors of accepted submissions must virtually attend and present their work at the symposium on February 6, 2021. The organizers will communicate their decisions no later than November 15, 2020.

Trump and Republicans Denied Intervention into Navajo Nation Citizens’ Voting Rights Suit in Arizona

Matthew L.M. Fletcher

Here are the materials in Yazzie v. Hobbs (D. Ariz.):

1 Complaint

9 Emergency Motion for PI

12 Trump Motion to Intervene

22 State Response to 12

32 Plaintiffs Response to 12

38 Reply in Support of 12

45 DCt Order Denying Intervention

AAIA: 6th Annual Repatriation Conference (10/26-28/2020)

Matthew L.M. Fletcher

6th Annual Repatriation Conference
Growing Community & Moving Forward after 30 Years of NAGPRA

An ALL VIRTUAL Community Conference
October 26 – 28, 2020

The Association on American Indian Affairs and the University of Denver Museum of Anthropology is partnering for the 6th Annual Repatriation Conference.  Because of the coronavirus pandemic, the Conference will be completely virtual and formatted for active participation and networking among participants from Indian Country, institutions, federal agencies,  international institutions, attorneys, academics and others interested in repatriation and Indigenous human rights work.
This artwork was created especially for the 6th Annual Repatriation Conference by George Curtis Levi, who is a member of the Southern Cheyenne Tribe of Oklahoma and is also Southern Arapaho. This ledger art painting depicts how repatriation builds community and strengthens culture. It was painted on an antique mining document from Montana that dates from the 1890s. India ink and liquid acrylic paints were used.

Register here.

Conference program here.

S.D. Tribes Sue State over Indian Country Voting Rights

Matthew L.M. Fletcher

Here is the complaint in Rosebud Sioux Tribe v. Barnett (D.S.D.):

1 Complaint

Muscogee (Creek) Nation SCT Decides Graham v. MCN Citizenship Committee [Creek Freedmen]

Matthew L.M. Fletcher

Here are the materials in Graham v. Muscogee (Creek) Nation Citizenship Committee (also here):

Doc.-4-Appellants-Brief-02242020

Doc.-14-Appellees-Response-Brief-06122020

Doc.-18-Appellants-Reply-Brief-07102020

Doc.-19-Order-and-Opinion-09172020

Grant Christensen on Indigenous Perspectives on Corporate Governance

Matthew L.M. Fletcher

Grant Christensen has posted “Indigenous Perspectives on Corporate Governance” on SSRN. Here is the abstract:

The foundation of the modern corporation is built upon the separation of labor and capital. These entities were anathema to most Indigenous peoples when the Virginia Company was chartered in 1606 for the purpose of settling American lands. Over centuries of colonization federal law worked to assimilate Native Americans. Tribes were encouraged, even forced, to create their own corporate entities. Indelibly, consistent with their inherent sovereignty, Indigenous groups fused autochthonous legal principles into these corporate structures. Today, in the shadow of the #BLM movement and societal demands that corporations become more responsive to their communities and to the environment, shareholder primacy has reached its nadir. As corporate governance seeks to replace it with something stakeholder centered autochthonous principles gleaned from Indigenous corporations offer a way forward. These proposed reforms are as varied as the chthonic law they are built upon and range from making nature itself a corporate shareholder to issuing shares that gain voting rights only after they have been held to maturity.