Stanford Law Review Online Publishes “Indian Lives Matter — Pandemics and Inherent Tribal Powers”

Fletcher’s paper, “Indian Lives Matter — Pandemics and Inherent Tribal Powers,” is now available online (PDF).

Law Review Article Published Entirely in ʻōlelo Hawaiʻi (Hawaiian)

Sabrina Rose Kamakakaulani Gramberg has published, in the Asian & Pacific Law & Policy Journal, an article written entirely in ʻōlelo Hawaiʻi (Hawaiian).

Here is a link to a press release (May 13, 2020) from Univ. of Hawaiʻi about it.

Here is a link to the article.

On page 38, Sabrina gives a short description of the article in English that states:

Enshrined in Hawaiʻi’s constitution, the legal foundation for Hawaiian language rights awaits statutory implementation. In the gap between legal justification and practical operation, speakers of Hawaiʻi’s indigenous language are once again being compelled to express themselves in English to access essential government programs. The State of Hawaiʻi has a role and responsibility in redressing the government actions that forced Hawaiʻi’s language shift. The reluctance of elected officials to develop a comprehensive plan to operationalize the constitution stands in direct contravention to the intent and mandate of Article XV, Section 4 of the Hawaiʻi State Constitution. As an official but critically endangered language, a statutory infrastructure for Hawaiian language access would support revitalization efforts and provide long- awaited mechanisms to obtain translation and interpretation services statewide.

And here is a link to Ka Huli Ao’s blog post about the article.

 

New Student Scholarship on Jurisdiction and Gender-Based Violence against Native Women

Emily Mendoza has published “Jurisdictional Transparency and Native American Women” in the California Law Review Online.

Here is the abstract:

While lawmakers have long known that Native American women experience gender-based violence at higher rates than any other population, lawmakers historically have addressed these harms by implementing jurisdictional changes: removing tribal jurisdiction entirely, limiting tribal jurisdiction, or returning jurisdiction to tribes in a piecemeal fashion. The result is a “jurisdictional maze” that law enforcement officers, prosecutors, and courts are unable to successfully administer to bring perpetrators to justice. This Article is the first to identify what I call “jurisdictional transparency”—or clear, easily ascertainable rules governing courts’ jurisdiction—as a core value of the American legal system and will argue that a lack of jurisdictional transparency over criminal prosecutions in Indian country contributes to the excessive rates of domestic violence, sexual assault, and rape against Native American women. Because arguments for or against sovereignty are divisive and often put a swift end to productive dialogue, this has often led to the layering of more jurisdictional rules on top of the current system. Jurisdictional transparency, on the other hand, advocates an approach that is both more fundamental and more attainable: allocating criminal jurisdiction in Indian country in a way that can be easily determined at the outset of a case.

The Article begins by examining jurisdictional rules in other contexts while highlighting the federal courts’ continuous demand for clear jurisdictional rules in the interest of judicial efficiency and public access to the courts. With this backdrop, the Article then illuminates the discrepancy between such transparency demands and the opaque jurisdictional rules in Indian Country, using key case examples to demonstrate the system’s failures. Finally, the Article proposes a solution that is reflected in numerous facets of the law: jurisdictional transparency. Such a solution has a procedural guise capable of penetrating a polarized political climate while lifting the opacity that has prevented thousands of Native American women from accessing justice.

Jim Grijalva on the Gap in Indian Country Water Quality Protection

James Grijalva has posted “Ending the Interminable Gap in Indian Country Water Quality Protection,” forthcoming in the Harvard Environmental Law Review, on SSRN.

The abstract:

Tribal self-determination in modern environmental law holds the tantalizing prospect of translating Indigenous environmental value judgments into legally enforceable requirements of federal regulatory programs. Congress authorized this approach three decades ago, but few tribes have sought primacy even for foundational programs like Clean Water Act water quality standards, contributing to potentially serious environmental injustices. This article analyzes in detail EPA’s recent attempt at reducing tribal barriers — reinterpreting the Act as a congressional delegation of tribal jurisdiction over non-Indians — and the early indications its results are insignificant. The article then proposes an unconventional solution ostensibly at odds with tribal self-determination: promulgation of national, federal water quality standards for Indian country. EPA’s Indian Program actually began this way, as an interim step awaiting tribes’ assumption of federal regulatory programs. Thirty years later, the seemingly interminable regulatory gap in Indian country water quality protection remains, and EPA has a legal and moral responsibility to close it.

Recent American Indian Law Scholarship

Michalyn Steele, Indigenous Resilience, Arizona Law Review

Christine Zuni Cruz, The Indigenous Decade in Review, SMU Law Review Forum

Samuel Lazerwitz, Note, Sovereignty-Affirming Subdelegations: Recognizing the Executive’s Ability to Delegate Authority and Affirm Inherent Tribal Powers, Stanford Law Review

Jessica L. Garcia, Historical Trauma and American Indian/Alaska Native Youth Mental Health Development and Delinquency (PDF)

Kenneth N. Hansen, Uncivil Rights: The Abuse of Tribal Sovereignty and the Termination of American Indian Tribal Citizenship, IAFOR Journal of Cultural Studies

Milan Kumar, American Indians and the Right to Vote: Why the Courts Are Not Enough, Boston College Law Review

Doug Kiel, Nation v. Municipality: Indigenous Land Recovery, Settler Resentment, and Taxation on the Oneida Reservation, NAIS: Native American and Indigenous Studies

Kent McNeil, The Louisiana Purchase: Indian and American Sovereignty in the Missouri Watershed, Western Historical Quarterly

Robert Miller, American Indian Sovereignty versus the United States, The Routledge Handbook of Critical Indigenous Studies

California Law Review Publishes “Politics, Indian Law, and the Constitution”

The article is here. PDF.

The abstract:

The question of whether Congress may create legal classifications based on Indian status under the Fifth Amendment’s Due Process Clause is reaching a critical point. Critics claim the Constitution allows no room to create race- or ancestry-based legal classifications. The critics are wrong.

When it comes to Indian affairs, the Constitution is not colorblind. I argue that, textually, the Indian Commerce Clause and Indians Not Taxed Clause serve as express authorization for Congress to create legal classifications based on Indian race and ancestry, so long as those classifications are not arbitrary, as the Supreme Court stated a century ago in United States v. Sandoval and more recently in Morton v. Mancari.

Should the Supreme Court reconsider those holdings, I suggest there are significant structural reasons as to why the judiciary should refrain from applying strict scrutiny review of congressional legal classifications. The reasons are rooted in the political question doctrine and the institutional incapacity of the judiciary. Who is an Indian is a deeply fraught question that judges have no special institutional capacity to assess.

New Research on COVID-19 Infection Rates in Indian Country

American Indian Reservations and COVID-19: Correlates of Early Infection Rates in the Pandemic

April 25, 2020 

The SARS-CoV-2 virus is causing widespread devastation as rates of coronavirus disease 2019 (COVID-19) grow across the world. The United States is experiencing one of the largest outbreaks with over half a million confirmed cases as of mid-April 2020. However, outbreaks on tribal lands are largely ignored by the federal government, mainstream media, and case tracking web sites. To reverse this erasure, Indian Country Today has collected cases for the Indian health system. As of April 10, the ICT database contained 861 COVID-19 cases in 287 tribal communities. Infections are growing across Indian Country, but very little is known about the relationship betweencommunity and household characteristics and the rate of COVID-19 spread on tribal lands. This is the question that ateam of Indigenous researchers at UCLA and the University of Arizona are actively working to answer.

This interdisciplinary team includes social demographer Desi Rodriguez-Lonebear, health services researcher Nicolás E.Barceló, economist Randall Akee, and public health researcher Stephanie R. Carroll. Merging the ICT data with the 2018 American Community Survey 5-Year records, they conducted multivariate analyses to identify relationships between the rates of COVID-19 cases per 1000 population and average reservation (or homelands) characteristics. 

The results show that by April 10, 2020, the rate of COVID-19 cases per 1000 people was more than four times higher for the populations residing on reservations than for the U.S. as a whole. COVID-19 cases were more likely to occur in tribal communities with a higher proportion of homes lacking indoor plumbing. COVID-19 cases were less likely to occur in tribal communities where households spoke English-only.

This research finds that failure to account for the lack of complete indoor plumbing and access to running water in a pandemic may be an important determinant of increased incidence of COVID-19 cases in tribal communities. Access to relevant information in Indigenous languages may play a key role in the spread of COVID-19 in some tribal communities. Previous studies have identified household plumbing, overcrowding, and language barriers as potential pandemic and disease infection risk factors. These risk factors persist. Specific actions must be taken now to provide potable water, and culturally-relevant information via community preferred media.Urgent funding to strengthen tribal public health and household infrastructure, as delineated in treaties and other agreements, isnecessary to protect American Indian communities from COVID-19 and future pandemics. This research has been accepted for publication at the Journal of Public Health Management and Practice.

Media Contact Information – Dr. Randall Akee (rakee@ucla.edu)

New Book: “The Cherokee Supreme Court 1823–1835”

From Carolina Academic Press, here (h/t Legal History Blog):

The Cherokee Supreme Court

1823–1835

by J. Matthew Martin

Forthcoming April 2020 • paper

ISBN 978-1-5310-1841-2
e-ISBN 978-1-5310-1842-9

Tags: Indian and Indigenous Peoples LawLegal HistoryRegional Interest


The first legal history of the first tribal court upends long-held misconceptions about the origins of Westernized tribal jurisprudence. This book demonstrates how the Cherokee people—prior to their removal on the Trail of Tears—used their judicial system as an external exemplar of American legal values, while simultaneously deploying it as a bulwark for tribal culture and tradition in the face of massive societal pressure and change. Extensive case studies document the Cherokee Nation’s exercise of both criminal and civil jurisdiction over American citizens, the roles of women and language in the Supreme Court, and how the courts were used to regulate the slave trade among the Cherokees. Although long-known for its historical value, the legal significance of the Cherokee Supreme Court has not been explored until now