Author: Matthew L.M. Fletcher – Page 144

Michael Doran on Tribal Sovereignty and Fundamental Rights

June 14, 2019Matthew L.M. Fletcher

Michael Doran has posted “Redefining Tribal Sovereignty for the Era of Fundamental Rights” on SSRN. It is forthcoming in the Indiana Law Journal.

The abstract:

This article explains a longstanding problem in federal Indian law. For two centuries, the U.S. Supreme Court has repeatedly acknowledged the retained, inherent sovereignty of American Indian tribes. But more recently, the Court has developed the implicit-divestiture theory to deny tribal governments criminal and civil jurisdiction over non-members, even with respect to activities on tribal lands. Legal scholars have puzzled over this move from a territorial-based definition of tribal sovereignty to a membership-based definition; they have variously explained it as the Court’s abandonment of the foundational principles of Indian law, the product of the Court’s indifference or even racist hostility to Indians, or a simple lack of doctrinal coherence in the Court’s decisions. This article provides a different explanation. The implicit-divestiture cases represent the Court’s effort to address a trilemma among three incompatible objectives: preservation of the traditional territorial-based definition of tribal sovereignty; preservation of tribal governments’ placement outside the federalist structure of the constitutional order; and preservation of fundamental rights. The Court has chosen to resolve the trilemma by redefining tribal sovereignty to deny tribal jurisdiction over non-members. Whether right or wrong, the implicit-divestiture theory is the Court’s good-faith attempt to preserve as much tribal sovereignty as possible without infringing on fundamental rights or forcing tribal governments into the federalist structure.

BYU Law Review Indian Law Symposium

June 11, 2019Matthew L.M. Fletcher

Here:

Articles

PDF

Lobbying as a Strategy for Tribal Resilience
Kristen Matoy Carlson

PDF

The Reports of Our Death Are Greatly Exaggerated – Reflections on the Resilience of the Oneida Indian Nation of New York
Allison M. Dussias

PDF

Changing Family Courts to Help Heal and Build Resilient Families
Carrie E. Garrow

PDF

Sovereign Resilience: Reviving Private-Sector Economic Institutions in Indian Country
Robert J. Miller

PDF

Resilience and Native Girls: A Critique
Addie C. Rolnick

PDF

Cultivating Professional Identity and Resilience Through the Study of Federal Indian Law
Michalyn Steele

Comment

PDF

Establishing Paternity Under the Indian Child Welfare Act
Carlie Smith

“This Land” Podcast by Rebecca Nagle

June 10, 2019Matthew L.M. Fletcher

Definitely worth a listen. First two episodes are about Carpenter v. Murphy.

Here.

SCOTUS Denies Cert in Mitchell v. Tulalip; Teck Metals v. Colville; and King Mountain Tobacco

June 10, 2019Matthew L.M. Fletcher

Here is the order list.

Mitchell materials here.

Teck Metals materials here.

King Mountain materials here.

Seneca Nation Petition to Vacate Arbitration Award Favoring State of New York on Revenue Sharing

June 10, 2019June 10, 2019Matthew L.M. Fletcher

Here are the materials in Seneca Nation of Indians v. State of New York (W.D. N.Y.):

1-1 Motion to Vacate

2-3 Final Award

2-4 Partial Final Award

2-5 Washburn Dissent

Frank Pommersheim’s Valedictory Notes and Collage

June 10, 2019Matthew L.M. Fletcher

Frank Pommersheim has published “I Was So Much Older Then/I’m Younger Than That Now: Valedictory Notes and Collage” in the South Dakota Law Review (pdf).

Here is an excerpt:

Teacher, Scholar, Tribal Justice, Colleague. These are theseasons turning and braiding across my years and decades in thefield, the factory, and the monastery of my work and vocation.The toil of craft and building community. Yet there is alsosomething valedictory and elegiac that guides this pen and spillsthis ink in the desire to provide both a professional and personalsense of my thirty-five years of service at the University of SouthDakota School of Law (hereinafter USD).

Frank (far right) at the Montana Law Review symposium 2018

Federal Court Denies TRO in Flandreau Hemp Dispute

June 7, 2019June 7, 2019Matthew L.M. Fletcher

Here are the materials so far in Flandreau Santee Sioux Tribe v. United States Department of Agriculture (D.S.D.):

News Profile on Pine Ridge Home Construction

June 6, 2019Matthew L.M. Fletcher

From HuffPo, here is “This Community Is Striving To Rebuild One Of The Poorest Places In America.”

National Indian Law Library Bulletin (6/5/2019)

June 6, 2019Matthew L.M. Fletcher

Here:

The National Indian Law Library added new content to the Indian Law Bulletins on 6/5/19.

U.S. Supreme Court Bulletin
http://www.narf.org/nill/bulletins/sct/2018-2019update.html
The following cases recently were denied review:

Carter v. Sweeney (Civil Rights Act)
Comanche Nation of Oklahoma v. Zinke (Land into Trust; Jurisdiction)
Miccosukee Tribe of Indians of Florida v. United States (Tribal General Welfare Exclusion Act- Income)
Jim v. United States (Federal Taxation)
Allergan, Inc. v. Teva Pharmaceuticals USA, Inc. (Patents)

Tribal Courts Bulletin
http://www.narf.org/nill/bulletins/tribal/2019.html
Mary Dominique v. Mashantucket Pequot Gaming Enterprise and Scooter A Long, LLC. (Personal Injury)
Allen Russell II v. Laureen Yellow Hammer/Combs (Child Custody)

Federal Courts Bulletin
https://www.narf.org/nill/bulletins/federal/2019.html
United States v. Smith (Assimilative Crimes Act; Indian Country Crimes Act)
Kim R. Jim v. Shiprock Associated Schools, Inc. (Indian Tribe – Definition of)

State Courts Bulletin
https://www.narf.org/nill/bulletins/state/2019.html
State v. Roy (Sentencing)
In re Radience K. (Indian Child Welfare Act – Active Efforts)
People in Interest of L.R.B., S.B.B., and K.B.B. (Indian Child Welfare Act – Transfer to Tribal Court)

Law Review & Bar Journal Bulletin (contact us if you need help finding a copy of an article)
https://www.narf.org/nill/bulletins/lawreviews/2019.html

Improving justice and avoiding colonization in managing climate change related disasters: A case study of Alaska Native villages.
The Race Horse that wouldn’t die: On Herrera v. Wyoming.
Protecting native women from violence: Fostering state-tribal relations and the shortcomings of the Violence Against Women Act of 2013.
What the future may hold for victims of domestic and sexual violence without the Violence Against Women Act.
New York’s quest for jurisdiction over Indian lands.
New York State’s recent judicial collaboration with Indigenous partners: The story of New York’s federal-state-tribal courts and Indian Nations Justice Forum.
The origins and evolution of the Indian Child Welfare Act.
Thomas Indian School.
The causal effect: Implications of chronic underfunding in school systems on the Navajo reservation.
When tribal disenrollment becomes cruel and unusual.
The dark side of tribal sovereign immunity: The gap between law and remedy.
Legal pluralism and indigenous peoples rights: Challenges in litigation and recognition of indigenous peoples rights.
Privatizing the reservation?
Partially tribal land: The case for limiting state eminent domain power under 25 USC 357.
The unlikely duo that shocked the intellectual property world and why the Supreme Court was the chosen one to restore balance.
Defining ‘Indian.’

News Bulletin
https://www.narf.org/nill/bulletins/news/currentnews.html
In the Intergovernmental section, we feature an article about an effort to form Alaska’s first official inter-tribal court system.

Legislation Bulletin
https://www.narf.org/nill/bulletins/legislation/116_uslegislation.html
The following bills were added:
S.2961: The Samish Indian Land Reaffirmation Act.
H.R.2579: Hardrock Leasing and Reclamation Act of 2019.

Regulatory Bulletin
http://www.narf.org/nill/bulletins/regulatory/2019.html
One of the items we cover this week includes a notice of the National Park Service regarding tribal consultation to obtain input from Tribes on proposed changes to regulations governing the National Register of Historic Places.