Author: Matthew L.M. Fletcher – Page 766

Kristen Carpenter and Angela Riley: “The Jurisgenerative Moment in Indigenous Human Rights”

March 20, 2013March 19, 2013Matthew L.M. Fletcher

Kristen A. Carpenter and Angela R. Riley have posted their paper, “The Jurisgenerative Moment in Indigenous Human Rights,” on SSRN. It is forthcoming in the California Law Review.

Here is the abstract:

As indigenous peoples have become actively engaged in the human rights movement around the world, the sphere of international law, once deployed as a tool of imperial power and conquest, has begun to change shape. International human rights law is now serving as a basis for indigenous peoples’ claims against states and even influencing indigenous groups’ internal processes of decolonization. In this Article, we set out to document and provide a theoretical account of an unprecedented, but decidedly observable, phenomenon: the current moment in indigenous human rights law – manifesting at the tribal, national, and international levels – reflects the convergence of a set of inter-dynamic, mutually reinforcing conditions. The intersection of the rise of international human rights with paradigm shifts in post-colonial theory has, we argue, triggered a “jurisgenerative moment” in human rights law, one that pervades law-making at every level of human experience, and now recognizes indigenous peoples not only as subjects of human rights law entitled to individual rights in the conventional sense but also as “peoples” with interests in self-determination, equality, and cultural survival. Beyond identifying and framing this current moment, this Article also begins to bridge vital conversations occurring among contemporary international law scholars, on the one hand, and indigenous legal scholars on the other, about the formation of human rights law and the extent to which it makes a difference. Using examples of legal implementation on the ground, we examine indigenous human rights development at the tribal, national, and international levels. Through this account — historical, descriptive, theoretical, and exemplary — we describe a jurisgenerative moment in human rights taking shape in indigenous communities today, with the capacity to change the way we think about and realize human rights for all people.

Kate Fort: “The Vanishing Indian Returns: Tribes, Popular Originalism, and the Supreme Court”

March 19, 2013Matthew L.M. Fletcher3 Comments

Our own Kathryn E. Fort has posted her paper, “The Vanishing Indian Returns: Tribes, Popular Originalism, and the Supreme Court,” on SSRN. It was published in the St. Louis Law Journal.

Here is the abstract:

As the nation faces cultural divides over the meaning of the “Founding,” the Constitution, and who owns these meanings, the Court’s embrace of originalism is one strand that feeds the divide. The Court’s valuing of the original interpretation of the Constitution has reinforced the Founder fetishism also found in popular culture, specifically within the politics of those identified as the Tea Party. As addressed elsewhere, their strict worship of the Founders has historical implications for both women and African Americans, groups both marginalized and viewed as property in the Constitution. No one, however, has written about how the Court’s cobbled historical narrative and their veneration for the Founders have affected American Indian tribes. Tribes barely exist in the Constitution, and the Founders’ “original” understanding of tribes was that they would inevitably disappear.

The “vanishing Indian” stereotype, promulgated in the early Republic, and reaching an apex in the 1820’s, continues to influence fundamentally how the Court views tribes. Compressing history from the Founding through the Jacksonian era undermines tribal authority and sovereignty within the Court. In its federal Indian law cases, the Court relies on racial stereotypes and popular conceptions of American history. As a result of these shortcuts, the Court folds all tribes into one large group, empties the American landscape of tribal peoples, and forces tribes into a past where they only exist to disappear.

New Scholarship on Domestic Violence and Alaska Natives

March 19, 2013Matthew L.M. Fletcher1 Comment

Laura S. Johnson has published “Frontier of Injustice: Alaska Native Victims of Domestic Violence” (PDF) in American University Law School’s “The Modern American.”

An excerpt:

This paper will present three pieces of a strategy to better combat domestic violence in Alaska Native communities. First, cooperation among sovereigns is critical to ensure that laws are enforced. Second, effective law enforcement can be enhanced by creative, community-based, culturally-sensitive models that respond to domestic violence through alternate forms of dispute resolution in Alaska Native communities such as tribal courts. The State of Alaska should actively encourage the development of tribal courts to offer victims alternative forms of dispute resolution because they can offer victims more immediate, culturally-sensitive and community-based remedies. And finally, Alaska Native tribes should exercise regulatory civil jurisdiction over domestic violence crimes in their communities to help Alaska Native victims of domestic violence achieve justice and be protected from their abusers. Part I lays the foundation for a discussion of legal remedies available to Native Alaskans by briefly examining the limitations on tribal jurisdiction in Alaska. Part II presents the remedies that are currently available to Alaska Native victims of domestic violence. Part III expands from the Alaska Supreme Court’s monumental decision in John v. Baker to argue that Alaska’s courts should recognize tribal jurisdiction in domestic violence cases just as Alaska’s Supreme Court recognized tribal adjudicatory jurisdiction in the family law context.

North Dakota Law Review Article on Missouri River Basin Compact

March 19, 2013Matthew L.M. Fletcher

Jeffrey T. Matson has published “Interstate Water Compact Version 3.0: Missouri River Basin Compact Drafters Should Consider an Inter-Sovereign Approach to Accommodate Federal and Tribal Interests in Water Resources” in the North Dakota Law Review.

The abstract:

In the aftermath of the historic 2011 Missouri River flood, Missouri River Basin (MRB) state representatives and governors criticize the U.S. Army Corps of Engineers (Corps) for operating the Missouri River Mainstem Reservoir System (System) in support of the multiple, often conflicting, purposes outlined in the Flood Control Act of 1944. These officials envision entering into an interstate compact to divest the Corps of some of its operational authority and to broaden their role in managing water resources. Similarly, MRB tribal leaders argue that the Corps fails to operate its System in a manner that respects the interrelated issues of Indian reserved water rights and tribal sovereignty. As States and Tribes contemplate a rebalancing of power in the MRB, it is essential that any water resources management solution provide a forum in which affected States, Tribes, and the Federal government might work together in pursuit of interconnected interests. Accordingly, it is time for stakeholders to think beyond the dualistic “federal-interstate” compact arrangement and seriously consider a pluralistic “federal-interstate-tribal” approach – even if Indian reserved water rights are not yet quantified. Although such a tripartite approach is a departure from traditional compacting practice, the great weight of Indian reserved water rights warrants tribal representation on any commission charged with implementing a twenty-first century MRB water resources compact. Further, it would be unrealistic to expect a federal commissioner to represent tribal interests until such time as rights are quantified, given the Federal government’s conflict of interest in operating the System for other consumptive users. This Article concludes that the Federal government’s interests in flood protection, navigation, and national security, and the Tribes’ interests in protecting reserved water rights and tribal sovereignty, warrant an inter-sovereign approach whereby power is shared equally among signatories to this compact.

White House Blog: Synopsis of the 2012 White House Tribal Nations Conference

March 19, 2013Matthew L.M. Fletcher1 Comment

Here.

Here is the post, authored by Jodi Gillette:

On December 5, 2012, tribal leaders from across the country convened in Washington, D.C. for the fourth consecutive White House Tribal Nations Conference. President Obama has hosted the event each year of his presidency, affirming his commitment to strengthen the government to government relationship with tribes. The President delivered the keynote address at the Conference, which also featured remarks by senior Administration officials. Today we are releasing the synopsis of the 2012 Conference.

The Conference featured five break-out sessions, connecting tribal leaders and federal agency officials in focused areas of Indian Country priorities. The “Synopsis of the 2012 White House Tribal Nations Conference” reflects the concerns and feedback provided by tribal leaders in each break-out session. The break-out session topics included:

Protecting Our Communities: Law Enforcement and Disaster Relief

Strengthening and Advancing the Government-to-Government Relationship

Strengthening Tribal Communities: Economic Development, Housing, Energy and Infrastructure

Securing Our Future: Cultural Protection, Natural Resources and Environmental Protection

Healthy Communities, Excellence in Education and Native American Youth

Prior to the Conference, we released the 2012 White House Tribal Nations Conference Progress Report. The Report compiles some of the President’s key accomplishments for Indian Country. These accomplishments include signing the HEARTH Act to streamline the process for tribes to manage their land independently, continuing implementation of the Tribal Law and Order Act by providing critical resources to tribal law enforcement and expanding educational opportunities for Native youth with grants through the State-Tribal Education Partnership (STEP) program.

The President and his Administration will continue to partner with tribes to accomplish the priorities laid out by leaders at the Tribal Nations Conference. President Obama is proud to have achieved two of those priorities in the first two months of 2013. First, in January, President Obama signed a bill that included an amendment to the Stafford Act allowing tribes to make direct applications for emergency relief, just as state governments do. Second, just in the past few weeks, the President signed into law a reauthorization of the Violence Against Women Act (VAWA), which includes new protections for Native American women. As President Obama said before signing VAWA, “Tribal governments have an inherent right to protect their people, and all women deserve the right to live free from fear.

While much progress has been made, the President recognizes that works remains, including a legislative Carcieri fix, increased energy development on tribal lands and expanded economic and education opportunities for Native American communities. In pursuing each of these priorities, the President and his Administration are committed to working with tribal leaders in, what the President called, “a true and lasting government-to-government relationship.”

Jodi Gillette is Senior Policy Advisor for Native American Affairs, White House Domestic Policy Council.

Synopsis of the 2012 White House Tribal Nations Conference

On Rob Portman and the 2011 Michigan Law School Commencement Protest

March 19, 2013Matthew L.M. Fletcher

Turtle Talk usually looks forward only, but on a few rare occasions we look back into the archives to dig up interesting tidbits. Recall the post we did in 2011 on the silent protest from one-third of the Michigan Law School Class of 2011 of the law school’s selection of Rob Portman as the commencement speaker (60 percent of the graduating class wore rainbow buttons). Many of my spring 2011 Federal Indian Law students organized and took part in the protest. A proud moment, in my view.

An excerpt from the news report:

A small group of the seniors had an audience with the senator on Saturday morning, but in the end, the walkout still went down and it was even bigger than Andrew Selbst, unoffical spokesman for the protesting seniors, had hoped. His conservative estimate was that about 40 students would walk out, but more than 100 students joined him in the lobby while Portman spoke. About 60 percent of the graduates wore rainbow buttons or ribbons on their gowns or rainbow tassels on their caps.

This was a silent protest. The University was prepared for a loud protest. Just inside Hill Auditorium, seconds after guests were handed the pamphlet and the rainbow ribbon, they were handed the official program, which contained a baby blue insert addressing the protest.

…

Said Selbst, among 100 of his fellow graduates in the hallway during Portman’s speech: “I think we made our point.”

Now that Portman has changed his views, I find this protest even more inspiring, and prescient.

Of course, SBM blog, in its continuing efforts at snidely sarcasm, finds the whole thing worthy of mockery. Who are those people?