Kirsten Carlson on Rethinking Legislative Advocacy

Kirsten Matoy Carlson has posted “Rethinking Legislative Advocacy” on SSRN. Here is the abstract:

In an age of statutes, legislative advocates influence the substantive content of almost every law. Yet scholars know very little about the role that advocates play in shaping statutory law because the study of legislative advocacy has been left to political scientists, who focus on the political rather than the legal aspects of legislative lawmaking. This Article responds to this gap in the literature by presenting an innovative, mixed methods approach to studying legislative advocacy that brings law back into the study of legislative advocacy and provides more accurate descriptions of how legislative advocates behave. This legal approach to legislative advocacy improves on the existing political science literature by emphasizing the legislative process as a lawmaking enterprise and highlighting the importance of the substantive content of statutory laws to legislative advocates and their behavior. The Article demonstrates the utility of this approach by presenting new empirical data on American Indian advocacy. My analysis produces two important insights about legislative advocates’ behavior overlooked in previous studies. First, it reveals that advocates perceive legislative advocacy to be about modifying the substantive content of a proposed law. Legislative advocates take the law seriously as they engage in nuanced and sophisticated strategies to interact with legislators and other political actors to craft statutory laws. They advocate on a wide range of proposed laws, shift their positions strategically throughout the legislative process, and frequently seek to modify proposed laws. Second, my account of Indian advocacy emphasizes that legislative advocacy involves legal as well as political work. Indian advocates regularly used legal frames and arguments to educate and persuade legislators to shape the law in ways that better responded to their needs.

American Indian Law Review, Volume 44, Issue 1

Here:

Front Pages   PDF

Article

How the New Deal Became a Raw Deal for Indian Nations: Justice Stanley Reed and the Tee-Hit-Ton Decision on Indian Title – Kent McNeil   PDF

Comments

Keeping Cultural Bias Out of the Courtroom: How ICWA “Qualified Expert Witnesses” Make a Difference – Elizabeth Low   PDF

Being Uighur . . . with “Chinese Characteristics”: Analyzing China’s Legal Crusade Against Uighur Identity – Brennan Davis   PDF

Notes

United States v. Bryant: The Results of Upholding Women’s Rights and Tribal Sovereignty – Madalynn Martin   PDF

What Are the Odds? The Potential for Tribal Control of Sports Gambling After Murphy v. NCAA – Haley Maynard   PDF

Special Feature

Thickening the Thin Blue Line in Indian Country: Affirming Tribal Authority to Arrest Non-Indians – Alex Treiger   PDF

New Fletcher Paper: “The Rise and Fall of the Ogemakaan”

Please check out my new paper, “The Rise and Fall of the Ogemakaan,” now available on SSRN. Here is the abstract:

Anishinaabe (Odawa, Bodewadmi, and Ojibwe) legal and political philosophy is buried under the infrastructure of modern self-determination law and policy. Modern Anishinaabe tribes are rough copies of American governments. The Anishinaabeg (people) usually choose their ogemaag (leaders) through an at-large election process that infects tribal politics with individualized self-interest. Those elected leaders, what I call ogemaakaan (artificial leaders) preside over modern governments that encourage hierarchy, political opportunism, and tyranny of the majority. While modern tribal governments are extraordinary successes compared to the era of total federal control, a significant number of tribes face intractable political disputes that can traced to the philosophical disconnect from culture and tradition.

Anishinaabe philosophy prioritizes ogemaag who are deferential and serve as leaders only for limited purposes and times. Ogemaag are true representatives who act only when and how instructed to do so by their constituents. Their decisions are rooted in cultural and traditional philosophies, including for example Mino-Bimaadiziwin (the act of living a good life), Inawendewin (relational accountability), Niizhwaaswii Mishomis/Nokomis Kinoomaagewinawaan (the Seven Gifts the Grandfathers or Grandmothers), and the Dodemaag (clans). I offer suggestions on how modern tribal government structures can be lightly modified to restore much of this philosophy.

New Fletcher Paper, “Textualism’s Gaze”

Available on SSRN, here.

Here is the abstract:

In recent years, perhaps because of the influence of Justice Scalia, the Supreme Court appears to place greater emphasis on texts than ever before. “We’re all textualists now,” Justice Kagan declared in 2015. But it is one thing to say a court will prioritize the text. It is another thing to choose which text is to be prioritized.

Follow the textualism of constitutional interpretation and one sees judges prioritize the public understanding of the privileged white men in power at the time of the framing of the constitutional text. Follow the textualism of federal statutory interpretation and one sees judges prioritize the text exclusively, and if the judges engage with the legislative history of the statute they will engage with the public understanding of the legislators who enacted the law, again, largely privileged white men. The victory of textualism is not necessarily in the outcomes, but in significantly narrowing the scope of evidence available to interpret the text, in some cases to almost nothing but the bare words of the statute. Women, persons of color, and other marginalized persons and entities are almost never relevant to the textualist’s gaze.

The narrow focus of the textualist’s gaze also warps how Indian law matters are decided. The judiciary rarely considers how the governments and people most affected by the text — Indian tribes and individual Indians — understand the meaning of the text. The judiciary, whether it intends to or not, considers Indians and tribes as extraneous to the interpretive process.

Gregory Ablavsky on the Presentment Clause and Tomorrow’s Argument in Brackeen

Here is “Brackeen, the Indian Child Welfare Act, and the Presentment Clause: A Very Pink Herring” on SLS blogs.

An excerpt:

If the Presentment Clause bars Congress from honoring the divergent policy judgments of other sovereigns, then federalism is in trouble. After all, as the briefs stress and the Supreme Court has explicitly endorsed, Congress has expressly adopted state law as federal law in the Assimilative Crimes Act and the Federal Tort Claims Act. It has expressly authorized states to create wage and hour standards higher than the federal government in the Federal Labor Standards Act. It has allowed states to establish different water and air quality standards from the federal government upon EPA approval, a power that the Court has repeatedly ruled on without saying boo.

Fletcher Review of John Borrows “Law’s Indigenous Ethics” in Transmotion Journal

Here:

Other selected articles, here:

REVIEWS

REFLECTIONS

CREATIVE

Indigenous Peoples’ Journal of Law, Culture & Resistance Call for Papers

The Indigenous Peoples’ Journal of Law, Culture & Resistance
(IPJLCR) is accepting submissions for Volume 7, slated to be published in
Winter 2021. Submissions are being accepted until March 1st, 2020.
IPJLCR is a law journal at the University of California Los Angeles
School of Law that is interdisciplinary in nature, consisting of scholarly
articles, legal commentary, poetry, songs, stories, and artwork. We are
soliciting scholarly articles and student comments written about legal issues
important to Indigenous communities in the United States and throughout
the world, as well as works by artists that relate to or comment on legal
issues. We also seek works on issues or aspects of life in Native
communities that are impacted by law, whether tribal law or the laws of
nation-states.

IPJLCR is committed to Native issues, federal Indian law, and tribal
law. Past issues include: writings by Matthew L. M. Fletcher, Naomi Lanoi
Leleto, Robert J. Miller, Robert Alan Hershey, and Geneva E. B. Thompson,
an essay by Joy Harjo on resistance, poetry by Sara Littlecrow-Russel,
Mahealani Kamauu, Lydia Locklear, Tekpatl Tonalyohlotl Kuauhtzin, and
Shawna Shandiin Sunrise, and artwork by Elizabeth Whipple and Nadema
Agard Winyan Luta Red Woman, as well as photography by Anna
Tsouhlarakis, Cathy Hewitt and Rob Wilson, .

Email Submissions to: ipjlcr@lawnet.ucla.edu

Requirements: Each submission should be sent as one Microsoft Word file with
Bluebook formatted citations (20th ed. 2015). Brief bios are required, as well as 12 pt.
Times New Roman typed font, paginated, and should include: your name, address, phone
number, and email address in the header of the first page.

Call for Submissions Winter 2021

American Indian Law Review, Volume 43, Issue 2

Here:

Current Issue: Volume 43, Number 2 (2019)

Article

Comment

Notes

Special Feature