Scholarship

Another New Book from MSU Press (Makwa Enewed): Winona LaDuke’s “The Militarization of Indian Country”

Matthew L.M. Fletcher2 Comments

Website here.

The Militarization of Indian CountryMilitarization of Indian Country

Winona LaDuke

When it was recently revealed that U.S. Navy Seals had codenamed Osama bin Laden “Geronimo,” members of the Native American community were insulted that a Native patriot’s name had been used as a moniker for the most wanted terrorist in the world. As Winona LaDuke’s newest book demonstrates, the appropriation of Native names and imagery by the U.S. military is nothing new, from Blackhawk and Kiowa helicopters to “Shock and Awe” campaigns, a reference to the Wounded Knee Massacre. From their use of Native names to the outright poisoning of Native peoples for testing, the U.S. military’s impact on Indian Country has a long and troubled history and is, as evidenced by recent events, ongoing. LaDuke’s stirring book delves into the present and past of the U.S. military, as well as America’s fascination with Native Americans and their culture. The book examines decades of nuclear testing, weapons testing, chemical weapons storage, and bombing of Native American lands. The author also discusses the cultural change in Native communities associated with militarization and the fact that Native America has the highest proportion of living veterans as well as the highest levels of enlistment.

Forthcoming in 2013. Contents will be available soon.

Makwa Enewed

With Sean Aaron Cruz

New Book from MSU Press: Centering Anishinaabeg Studies

Matthew L.M. Fletcher

Website here. doefler

Centering Anishinaabeg Studies
Understanding the World through Stories

Edited by

Jill Doerfler

Niigaanwewidam James Sinclair

Heidi Kiiwetinepinesiik Stark

For the Anishinaabeg people, who span a vast geographic region from the Great Lakes to the Plains and beyond, stories are vessels of knowledge. They are bagijiganan, offerings of the possibilities within Anishinaabeg life. Existing along a broad narrative spectrum, from aadizookaanag (traditional or sacred narratives) to dibaajimowinan (histories and news)—as well as everything in between—storytelling is one of the central practices and methods of individual and community existence. Stories create and understand, survive and endure, revitalize and persist. They honor the past, recognize the present, and provide visions of the future. In remembering, (re)making, and (re)writing stories, Anishinaabeg storytellers have forged a well-traveled path of agency, resistance, and resurgence. Respecting this tradition, this groundbreaking anthology features twenty-four contributors who utilize creative and critical approaches to propose that this people’s stories carry dynamic answers to questions posed within Anishinaabeg communities, nations, and the world at large. Examining a range of stories and storytellers across time and space, each contributor explores how narratives form a cultural, political, and historical foundation for Anishinaabeg Studies. Written by Anishinaabeg and non-Anishinaabeg scholars, storytellers, and activists, these essays draw upon the power of cultural expression to illustrate active and ongoing senses of Anishinaabeg life. They are new and dynamic bagijiganan, revealing a viable and sustainable center for Anishinaabeg Studies, what it has been, what it is, what it can be.

“Centering Anishinaabeg Studies is a path-breaking book that features fascinating contributions from many of the finest scholars working in the field today. Ranging widely across methodological perspectives and the breadth of the Anishinaabe world, this book is indispensible for the field and a model for future work in Indigenous Studies.”
—Jean M. O’Brien, University of Minnesota

Available February 2013.

American Indian Studies Series

World rights; for sales to Canada, contact University of Manitoba Press
436 pp., 6.00″ x 9.00″, February 2013
Paper, $29.95,

Michigan Law Review Note on Uncounseled Tribal Court Convictions

Matthew L.M. Fletcher

Christiana M. Martenson has published “Uncounseled Tribal Court Guilty Pleas in State and Federal Courts: Individual Rights Versus Tribal Self-Governance” (PDF) in the Michigan Law Review. Here is the abstract:

Indian tribes in the United States are separate sovereigns with inherent self-governing authority. As a result, the Bill of Rights does not directly bind the tribes, and criminal defendants in tribal courts do not enjoy the protection of the Sixth Amendment right to counsel. In United States v. Ant, a defendant—without the legal assistance that a state or federal court would have provided—pled guilty to criminal charges in tribal court. Subsequently, the defendant faced federal charges arising out of the same events that led to the tribal prosecution. The Ninth Circuit in Ant barred the federal prosecutor from using the defendant’s prior uncounseled tribal court guilty plea as evidence in the federal proceeding, explaining that doing so would violate the Sixth Amendment. This Note argues that Ant is no longer good law. First, Ant’s legal foundation is weak, especially in light of subsequent developments in Sixth Amendment jurisprudence. Second, Ant is poor policy because excluding tribal court guilty pleas from state and federal proceedings undermines tribal self-governance. Even though governments must protect the rights of individual criminal defendants, supporting tribal authority will ultimately lead to decreased violence on Indian land and increased consistency with federal legislation.

Student Note Criticizing Federal Tort Claims Act Coverage of Tribal Contractors

Matthew L.M. Fletcher4 Comments

Well, the anti-Indian bug has hit law students! 🙂

This student note, Help Me Help You: Why Congress’s Attempt To Cover Torts Committed by Indian Tribal Contractors with the FTCA Hurts the Government and the Tribes (PDF), is published in the American University Law Review.

The abstract:

Since the Nixon Administration, the U.S. government has attempted to promote tribal self-determination among Native Americans.  Under the Indian Self-Determination Act, the tribes can enter into agreements with the federal government to take over services previously provided to the tribes by the Bureau of Indian Affairs (BIA).  By entering into these contracts, the tribes have been able to administer a wide variety of services, including construction and law enforcement, which bring income and employment to Indian country.  These contracts do not always run smoothly, however, and sometimes people get injured.  Under a series of amendments to the Indian Self-Determination Act, when tribal contractors commit torts, the federal government steps in and defends the tribal contractors under the Federal Tort Claims Act (FTCA) as if they were employees of the government.  The government pays out any settlements or judgments from the Judgment Fund.  This scenario is a complete departure from the traditional FTCA rule whereby contractors are only treated as government employees in exceedingly limited circumstances.

In hastily extending the FTCA to cover tribal contractors, Congress contravened FTCA jurisprudence in theory and in practice.  Congress intended to help the tribes avoid having to buy costly insurance by directly assuming liability under the FTCA.  While perhaps well-intentioned, the result is a system of perverse incentives and a string of inconsistent decisions.  Courts struggle to apply the FTCA’s waiver of the federal government’s sovereign immunity to the tribes, which remain separate sovereigns that retain some of their own sovereign immunity.  The arrangement also creates problems in determining whether tribal contractors are within the scope of their employment and undertaking discretionary functions.  Furthermore, the statutory scheme creates the potential for tribal law to govern the United States’ tort liability and may have inadvertently created a loophole for the intentional torts of tribal law enforcement officers.  The end result of this untenable situation is that savvy tribes recognize the unpredictability of the FTCA protection and purchase private insurance anyway, sometimes with federal contract support funds.  This is the exact result Congress hoped to avoid.

Congress should end the experiment of extending the FTCA to cover tribal contractors and replace it with subsidized private insurance.  This new arrangement would simplify the process for potential claimants and keep the government from having to pay the duplicative costs of insurance and judgments.

I don’t know much about this, but I thought Congress covered the tribes because the tribes were stepping into the shoes of federal service providers. As such, I’m not sure I’m persuaded that ISDEAA contracts should be molded to fit “FTCA jurisprudence … theory and … practice.” But I can’t argue much with the conclusion that there are a lot of unpredictable cases.

The tribes have been winning big on contract support costs cases lately. So if this proposal gets legs and runs, will that increase tribal indirect costs even more?

Student Law Review Note Blasts BIA Pacific Region Agency Trust Acquisition Review Process as “Extreme Rubber-Stamping” Favoring Tribes

Matthew L.M. Fletcher6 Comments

The paper is called Extreme Rubber-Stamping: The Fee-to-Trust Process of the Indian Reorganization Act of 1934 (PDF: Extreme Rubber-Stamping). The abstract:

In recognition of the massive loss of Indian territory since the European “discovery” of America, the Indian Reorganization Act of 1934 provides a process whereby Indian tribes can expand their reservations by applying to have additional land placed into trust for their benefit. This process, known as the fee-to-trust process, is the subject of fervent opposition by many affected communities because once taken into trust for a tribe, such land is no longer subject to state and local taxation or zoning, planning, and other regulatory controls. Accordingly, this Comment explores the efficacy of the fee-to-trust process by analyzing the Pacific Region Bureau of Indian Affairs decisions on proposed trust acquisitions from 2001 through 2011. Supported by this data, which shows a 100% acceptance rate, this Comment ultimately concludes that the process is shockingly biased and toothless—merely an exercise in extreme rubber-stamping. Thus, there is great need for comprehensive reform of the fee-to-trust process, including the creation of a meaningful role in the process for affected communities, establishment of clear and specific standards for acceptance of land into trust, and an emphasis on collaborative solutions.

Interesting , if not downright terrible, methodology — looking only at the notices of successful trust applications to conclude that 100 percent of applications are accepted. Wow! Without knowing, I would guess that the Bureau around the country generally doesn’t actually deny many trust acquisition applications, but they surely do not approve 100 percent. The government just sits on them until they become stale, or the tribe withdraws them when it becomes clear the application would never be approved.

Also, the conclusion that no one appeals or objects to trust acquisitions because the process is unfair is a little hysterical. Nearly all non-gaming related acquisitions are non-controversial, on-reservation acquisitions. Why would there be an appeal or objection? The number of pending federal court challenges to gaming-related trust acquisitions also tends to undermine these conclusions.

Even so, the critiques of the trust acquisition process from the point of view of state and local governments reproduced here are important to review.

New Scholarship Recommending Curbs on Tribal Payday Lenders

Matthew L.M. Fletcher1 Comment

Heather L. Pretrovich, a North Carolina law student, has published Circumventing State Consumer Protection Laws: Tribal Immunity and Internet Payday Lending in the North Carolina Law Review.

Here is the abstract:

As tribal payday lending becomes more prevalent, there is a dire need for federal action to halt the trend’s momentum. In 2010, tribal payday lenders made up “[m]ore than 35 of the 300” Internet payday lenders and made “about $420 million in payday loans.” The need for regulation of this conduct is imminent—“[s]ome observers predict that the number of tribes with payday-loan operations eventually could climb close to the 400 that now have casinos.” Additionally, various lenders have shown an interest in copying the tribal lending business model, which will likely result in additional industry growth. In the absence of federal regulation, the number of companies targeting consumers will increase, rendering previous state regulation efforts futile.

This Comment argues that federal action is necessary to block attempts by payday lenders to bypass consumer protection laws by organizing as tribal entities. Because the federal government does not currently regulate payday lending and tribes are immune from state suit, states are unable to protect their consumers from the practices that they have previously fought to curtail. Due to these obstacles, this Comment proposes possible solutions that can prevent tribal payday lending companies from circumventing state consumer protection laws. Part I provides background information introducing the specific problems that states have encountered in their initial regulation efforts against these companies. Part II describes why tribal payday lending cases are so rare and analyzes this body of case law. Part III analyzes why state regulation is inadequate and the reasoning behind the need for a federal response to this practice. Finally, Part IV examines what courses of action may be taken and which of those proposals are most likely to quickly and effectively address the problem.

Chicago Law Review Note on Federal Diversity Jurisdiction and Tribal Corporations

Matthew L.M. Fletcher

Graham Safty, a University of Chicago Law School student, has published Federal Diversity Jurisdiction and American Indian Tribal Corporations in the University of Chicago Law Review.

Here is an excerpt:

This Comment examines how federal courts determine the state citizenship of tribal corporations when deciding whether they can exercise diversity jurisdiction. It is well established that the Indian tribe itself—the constitutional tribe—is a “stateless entity” that is never subject to federal diversity jurisdiction. A federal court cannot hear a case in which an Indian tribe is a party unless there is another basis for subject matter jurisdiction, such as federal question jurisdiction. The rules that pertain to tribal corporations, however, remain unsettled. Courts have not adopted a comprehensive or uniform approach to determining when, if ever, they can exercise diversity jurisdiction over cases involving tribal corporations. Yet the rule that a court selects can have a profound impact on the likelihood that a tribal corporation will be susceptible to diversity jurisdiction.

New Scholarship on the Commission on State-Tribal Relations — HIGHLY RECOMMENDED

Matthew L.M. Fletcher3 Comments

Tassie Hanna, Sam Deloria, and Charles E. Trimble have published “The Commission on State-Tribal Relations: Enduring Lessons in the Modern State-Tribal Relationship” (PDF: CSTR article final)  in the Tulsa Law Review.

An excerpt:

Forty years ago the relationship between states and tribes was primarily adversarial, both in perception and practice. Leaders of both state and tribal governments looked to the courts or Congress to define it in their favor, until events led to the creation of the Commission on State-Tribal Relations (“CSTR”) and the evolution of a different approach. The CSTR was the first organized national attempt to study the state-tribal relationship, and the principles it developed are still relevant to successful interactions of Indian and non-Indian governments. This article, written by the founders of the Commission on State-Tribal Relations, traces the historical development of a new approach to state-tribal relations in the 1970’s, during a time of heightened tension between state and tribal governments.

This is an absolute must-read for anyone working on the ground in Indian country right now, and certainly any student that wants to work in Indian affairs. Tassie, Sam, and Chuck all but invented the field of intergovernmental agreements between Indian tribes, states, local units of government, and the feds. In the 1970s, negotiating between governments with long histories of animosity was much more difficult than it is now. But even in many areas of Indian country — I’m looking at you South Dakota — intergovernmental negotiations remain difficult. This paper will be useful in returning to first principles.

Current Washington Law Review Features Several Indian Law Articles

Matthew L.M. Fletcher

Here.

A list:

Negotiating Jurisdiction: Retroceding State Authority over Indian Country Granted by Public Law 280

Robert T. Anderson
87 Wash.L.Rev. 915

Full Article

Inextricably Political: Race, Membership, and Tribal Sovereignty

Sarah Krakoff
87 Wash.L.Rev. 1041

Full Article

Indigenous Peoples and Epistemic Injustice: Science, Ethics, and Human Rights

Rebecca Tsosie
87 Wash.L.Rev. 1133

Full Article

Fleeing East from Indian Country: State v. Eriksen and Tribal Inherent Sovereign Authority to Continue Cross-Jurisdictional Fresh Pursuit

Kevin Naud, Jr.
87 Wash.L.Rev. 1251

Full Article

And a special treat (for me at least), an article by my legendary criminal law and criminal procedure prof:

The Rise, Decline, and Fall (?) of Miranda

Yale Kamisar
87 Wash.L.Rev. 965

Full Article

New Scholarship on Native Hawaiians and NAGPRA

Matthew L.M. Fletcher

E. Sunny Greer has published ” Na Wai Hoʻōla i Nā Iwi?  Who Will Save the Bones:  Native Hawaiians and the Native American Graves Protection and Repatriation Act” in the Asian-Pacific Law and Policy Journal.

An excerpt:

This paper will argue that although the application of the Native American Graves Protection Act (“NAGPRA”) in Hawai‘i is problematic, it is imperative that Native Hawaiians include the care of ancestral remains and cultural objects as integral components of their cultural and political assertion of sovereignty.