Scholarship

Kristen Carpenter Publishes “Limiting Principles and Empowering Practices in American Indian Religious Freedom”

Matthew L.M. Fletcher

Kristen A. Carpenter has published her paper, “Limiting Principles and Empowering Practices in American Indian Religious Freedoms” (PDF) in the Connecticut Law Review. We highly recommend this paper.

The abstract:

Employment Division v. Smith was a watershed moment in First Amendment law, with the Supreme Court holding that neutral statutes of general applicability could not burden the free exercise of religion.  Congress’s subsequent attempts, including the passage of Religious Freedom Restoration Act and Religious Land Use and Institutionalized Persons Act, to revive legal protections for religious practice through the legislative and administrative process have received tremendous attention from legal scholars.  Lost in this conversation, however, have been the American Indians at the center of the Smith case.  Indeed, for them, the decision criminalizing the possession of their peyote sacrament was only the last in a series of Supreme Court cases denying American Indian Free Exercise Clause claims. Moreover, the Supreme Court’s Indian cases share a common and previously overlooked feature: in all of them, the Court assessed the Indian claims as too broad or too idiosyncratic to merit Free Exercise Clause protection and instead denied them through a succession of bright line formulations.  Identifying the unrequited search for a “limiting principle” as a basis for analysis, this Article reassesses the religion cases and underlying theoretical questions of institutionalism and equality, in their Indian context.  It then identifies two contemporary policy shifts—namely Congress’s decision to entrust accommodation of Indian religious freedoms to federal agencies and its decision to do so at the tribal, versus individual, level—that have, in some respects, facilitated an “empowering practices” approach to American Indian religious liberties in the post-Smith era.  Taking a descriptive and contextual approach, the Article illuminates opportunities for additional law reform in the American Indian context and also larger questions of institutionalism, equality, and pluralism in religious freedoms law.

Professor Carpenter’s paper already has an impressive impact. Ninth Circuit Judge William A. Fletcher based his keynote address at Berkeley Law School’s symposium on Phil Frickey’s legacy on her paper.

Ann Tweedy on Allotment Era Literature and Whether there were Justifiable Expectations about the End of Tribes

Matthew L.M. Fletcher1 Comment

Ann Tweedy has posted her forthcoming paper, “How Allotment-Era Literature Can Inform Current Controversies About Tribal Jurisdiction and Reservation Diminishment,” on SSRN. It is forthcoming in the University of Toronto Quarterly.

The abstract:

In a previous article, Unjustifiable Expectations: Laying to Rest the Ghosts of Allotment-Era Settlers, I argued that a review of historical newspaper articles showed that the expectations of non-Indians who purchased lands on Sioux reservations in South Dakota during the allotment-era as to tribes’ disappearing were not justifiable because they were rooted in an expectation of continued injustice towards tribes. I thus concluded that the Supreme Court should not presume that these allotment-era settlers had justifiable expectations when it decides reservation diminishment and tribal jurisdiction casesThis article addresses whether allotment-era literature pertaining to Sioux peoples can similarly help inform such cases. Although the results were more mixed, particularly with non-Indian-authored fiction, the works of Native writers such as Luther Standing Bear, Charles Eastman, and Zitkala-Ša were helpful in explicating the injustices in the federal government’s land dealings with tribes, as was a work by non-Native historian Doane Robinson.

AALS Indian Law-Related Programs (and Newsletter)

Matthew L.M. Fletcher

Thanks to Ezra Rosser for completing a newsletter for the AALS Indian Law Section: Indian Law Newsletter Jan 2013

The final agenda is here. The Indian-law related programs are all scheduled for Sunday.

10:30 – 12:15 AM
[6250] Section on Indian Nations and Indigenous Peoples
Cambridge, Second Floor, Hilton New Orleans Riverside
Indian Gaming and the Future of Tribal Sovereignty
Speakers: Matthew L.M. Fletcher, Michigan State University College of Law
Venus McGhee Prince, Attorney General, Poarch Band of Creek Indians, Atmore, AL
Alexander T. Skibine, University of Utah, S. J. Quinney College of Law
George Skibine, Counsel, SNR Denton, Washington, DC
Indian gaming, which came to the forefront of American Indian affairs in the 1980s and 1990s, is now a $27 billion a year business. Indian gaming dramatically restored the relative fortunes of some of the poorest tribes, and helped tribes regain control over their lands and their lives. However, with increased competition, Indian gaming revenues have leveled off and projections for the future of Indian gaming widely vary. How will Indian nations respond? Our panel includes leading legal scholars and practitioners in the Indian gaming field.
Business Meeting at Program Conclusion.

2:00 – 3:45 PM
[6425] Crosscutting Program: (A program selected after a competitive process by the AALS Committee on Special Programs for the Annual Meeting)
Grand Ballroom D, First Floor, Hilton New Orleans Riverside
Climate Change and Indigenous Peoples: The Intersection of Environmental Law, Natural Resources Development, Water Law, Energy Law, International Law, and Indigenous Law
(Papers to be published in the Tulane Environmental Law Journal)
Moderator and Speaker: Elizabeth Kronk, University of Kansas School of Law
Speakers: Randall S. Abate, Florida A&M University College of Law
Sara Bronin, University of Connecticut School of Law
Sarah A. Krakoff, University of Colorado School of Law
Judith V. Royster, The University of Tulsa College of Law
Previous AALS panels related to climate change have addressed the increasing importance of including a discussion of climate change in any law school curriculum. The purpose of the panel is to generally discuss the importance of including indigenous people in any discussion related to climate change. Particularly important is the recognition that legal “answers” to climate change may be different when indigenous people are involved. The panel will then focus on how climate change and its impact on indigenous people may be discussed in several different doctrinal areas. Specifically, each presenter will discuss the importance of this subject matter to his or her doctrinal area and include a discussion of how the topic may specifically be incorporated into lesson plans. The proposed topic is innovative in that program attendees will walk away with not only an understanding of why the topic is important but with actual lesson plans and proposed materials to include in their

4:00 – 5:45 PM
[6480] Section on Law and Anthropology
Cambridge, Second Floor, Hilton New Orleans Riverside
Human Rights, Culture, and Indigenous Development
Moderator: Kathryn Fort, Michigan State University College of Law
Speakers: Kirsten Carlson, Wayne State University Law School
Nicole B. Friederichs, Suffolk University Law School
Mark Goodale, Associate Professor, George Mason Institute for Conflict Analysis and Resolution, Arlington, VA
Kirsty Gover, J.S.D., Programme Director, Comparative Tribal Constitutionalism Research Programme, Melbourne Law School, Carlton, Australia
The theme of this panel will be the exploration of several questions related to indigenous development, such as the following:
1.) How can human rights be used to develop a political and cultural environment in which indigenous peoples can achieve self-determination?
2.) What obstacles must be confronted as indigenous peoples use human rights law to assert their rights to resources, culture and self-governance?
3.) What strategies exist to develop the practice of intercultural education, exchange, respect and diplomacy in the field of human rights?
4.) What is the relationship between international human rights norms and processes and indigenous culture and governance?

 

New Scholarship on Anishinaabe Law and Diplomacy

Matthew L.M. Fletcher1 Comment

Joseph Bauerkemper and Heidi Kiiwetinepinesiik Stark have published “The Trans/National Terrain of Anishinaabe Law and Diplomacy” in the Journal of Trans/National American Studies.

Other papers in the same issue include:

SPECIAL FORUM: Charting Transnational Native American Studies: Aesthetics, Politics, Identity

Charting Transnational Native American Studies
Huang, Hsinya; Deloria, Philip J.; Furlan, Laura M.; Gamber, John

A Transnational Native American Studies? Why Not Studies That Are Trans-Indigenous?
Allen, Chadwick

Alone on the Snow, Alone on the Beach: “A Global Sense of Place” in Atanarjuat and Fountain
Horton, Jessica L.

“¡Todos Somos Indios!” Revolutionary Imagination, Alternative Modernity, and Transnational Organizing in the Work of Silko, Tamez, and Anzaldúa
Adamson, Joni

New Scholarship on Long-Term Leasing Act of 1955

Matthew L.M. Fletcher

Dustin Frye has posted “Law, and Land Tenure: Understanding the Impact of the Long-Term Leasing Act of 1955 on Indian Land Holdings” on SSRN. Here is the abstract:

An increasing focus of contemporary Native American economic development literature concentrates on the role of institutions. Land tenure arrangements are an important part of the institutional structure on reservations because several reservations rely on agriculture and resource extraction. The 1950s and 1960s were characterized by a series of policy interventions targeting Native Americans. One such policy, the Long-Term Leasing Act (LTLA) of 1955, reduced bureaucratic oversight and altered the composition of Native American trust land. The policy extended the possible term of leases on trust lands, increasing economic opportunities, lowering transaction costs, and increasing the discounted present value of retaining land in trust status. Using a new panel dataset on land tenure, this paper finds that the LTLA significantly diminished the flow of land to fee-simple (private ownership) and tribally owned land held in trust, leading to a higher rate of retention in individually owned land held in government trust. I extend the empirical framework to determine whether reservations under state jurisdiction experienced additional changes in land tenure due to the ability to more credibly commit to leasing contracts or whether legal uncertainty over land-use and expanded credit access led to increased transfer to fee-simple. The results suggest that reservations under state jurisdiction continued transferring land to fee-simple, which supports the legal land-use uncertainty and suggests the expanded credit access impacted purchasing more than leasing. To examine the degree that heirship is influencing the results, I estimate the model by allotment date groups, where allotment dates proxy for heirship. Results indicate that reservations allotted earlier, which have more fractionated ownership, responded more to the Long-Term Leasing Act. Shifts in land holdings induced by the LTLA reinforce the importance of reducing transaction costs associated with trust land for Native American economic development.

New Oregon Law Review Article on the Application of the Reverse-Erie Doctrine and Indian Law

Matthew L.M. Fletcher

Here.

An excerpt:

After proposing a new framework for choosing the applicable body of law, one that more closely resembles a mirror image of the Erie framework, this Comment looks to decisions in Indian law to illustrate the problems produced by the current reverse-Erie paradigm and how they might be cured under the proposed framework. The tension between state and federal law is made all the more obvious when a third sovereign, a tribal nation, is thrown into the mix. While a choice-of-law methodology that produces predictable results better serves all litigants, its benefits become particularly clear when it affects a group that been historically disadvantaged in accessing the American justice system.

New Scholarship on Plenary Power and Indian Affairs and Immigration

Matthew L.M. Fletcher

Susan Bibler Coutin, Justin B. Richland, and Veronique Fortin have posted Routine Exceptionality: The Plenary Power Doctrine, Immigrants, and the Indigenous Under U.S. Law on SSRN.

Here is the abstract:

Our paper examines how law-making regarding Native and Central Americans in the United States gives rise to documentary forms that challenge binaries that have plagued sociolegal scholarship. In the United States, plenary power gives the federal government what former U.S. attorney general Michael Mukasey termed the “administrative grace” to grant privileges to members of groups, such as immigrants and Native Americans, who are citizens of other nations, and thus whose allegiance is questioned. Matter of Compean 24 I&N Dec. 710 (A.G. 2009). Plenary power is understood by the Supreme Court as having “always been deemed a political one, not subject” to judicial oversight. Lone Wolf v. Hitchcock, 187 U.S. 553 (1903). This understanding makes plenary power something of a legal black box – analysis typically ends with the determination that the authority in question is a political one beyond legal review. Yet members of these groups experience plenary power precisely in its regulatory form, in the ways in which they are demanded to produce documents to establish juridical and political identities before the state. Such documents, which simultaneously produce and contest accounts of immigrant and indigenous histories, create alternative understandings in which law is characterized neither by gaps nor by gaplessness, but rather by embodiment in material form.

Bob Anderson on PL 280 Retrocession Legislation in Washington State

Matthew L.M. Fletcher

Robert T. Anderson has published “Negotiating Jurisdiction: Retroceding State Authority over Indian Country Granted by Public Law 280” in the Washington Law Review. HIGHLY RECOMMENDED!

Here is the abstract:

The Public Law 280 legislation was approved by Congress in the face of strenuous Indian opposition and denied consent of the Indian tribes affected by the Act . . . .

The Indian community viewed the passage of Public Law 280 as an added dimension to the dreaded termination policy. Since the inception of its passage the statute has been criticized and opposed by tribal leaders throughout the Nation. The Indians allege that the Act is deficient in that it failed to fund the States who assumed jurisdiction and as a result vacuums of law enforcement have occurred in certain Indian reservations and communities. They contend further that the Act has resulted in complex jurisdictional problems for Federal, State and tribal governments.

S. Comm. on the Interior & Insular Affairs, 94th Cong., Background Rep. on Public Law 280 (Comm. Print 1975) (statement of Sen. Henry M. Jackson, Chairman).

Senator Jackson’s statement accurately described the issues then and now. This Article reviews the legal history of federal-tribal-state relations in the context of Public Law (P.L.) 280 jurisdiction. Washington State has recently taken progressive steps that could serve as the foundation for a national model to remove state jurisdiction as a tribal option. The federal self-determination policy is not advanced by adherence to termination era experiments like P.L. 280. The article concludes that federal legislation should provide for a tribally-driven retrocession model, and makes proposals to that end.

Mary Kathryn Nagle on the Government’s Fidicuary Duties Pre- and Post-Dawes Act

Matthew L.M. Fletcher1 Comment

Mary Kathryn Nagle has published “Nothing to Trust: The Unconstitutional Origins of the Post-Dawes Act Trust Doctrine” in the Tulsa Law Review (48 Tulsa L. Rev. 62 (2012)).

Here is the article:

MKNagle

Ryan Dreveskracht Article on Tribal Energy Development

Matthew L.M. Fletcher1 Comment

Ryan Dreveskrachthas published “Alternative Energy in American Indian Country: Catering to Both Sides of the Coin” in the Energy Law Journal. Here is the synopsis:

This article looks at both sides of the renewable energy “coin” in relation to American Indian country. On the one side, it appears that tribal governments are opposed to any energy development on their lands. All told, however, this couldn’t be further from the truth – tribes merely seek a seat at the table when decisions are made regarding developments that will adversely affect their lands and/or areas of cultural significance. Indeed, contrary to being opposed to alternative energy development, tribes are very actively seeking to develop their lands in a manner that is consistent with their cultures and traditions. But, large-scale alternative energy projects are virtually absent from Indian country. This article argues that the oft-overlooked other side of the renewable energy “coin” are the federal regulations that hinder these projects from coming to fruition. The final section of the article will discuss what Congress is – and is not – doing regarding the two sides of this “coin.”