Scholarship

St. Regis Mohawk Press Release and Briefs on Land Claim Litigation

Kate Fort1 Comment

Here.

Both the United States and the Mohawk plaintiffs make these arguments in briefs filed last Friday, November 16.  The United States stating, “In other New York land claims…dismissed by the Second Circuit, it was inarguable that the lands at issue had become heavily populated and developed by non-Indians in the years since New York unlawfully acquired the lands….That is not true here….the Mohawks… never departed the region and have remained a powerful enduring presence both as a government and as a population in the region and within the specific claim areas.”

As for the claim to the islands, the United States and the Mohawks have presented a unique argument that has never been considered in any other land claim because of the particular facts of the case.   “The Department of Justice Attorneys and the Department of Interior met with tribal leadership recently and listened to our concerns.  They responded with the filing of a strong brief that supports the Tribe’s efforts and their own interests, as owners of the underlying title to some of the islands that make up the Power Project.” said Chief Randy Hart.

St. Regis Mohawk Brief

Akwesasne Mohawk Brief

United States Brief

Defendants’ Brief

Previous coverage here.

Student Research Showcase on Native Themes at Michigan State, November 30th

Kate Fort

Victoria Sweet, MSU Law ’13,  will be one of the students presenting at this event:

New Scholarship on Making Pollution Inefficient Through Use of Citizen Suits

Matthew L.M. Fletcher1 Comment

Cody McBride has published “Making Pollution Inefficient Through Empowerment” in the Ecological Law Quarterly.

The abstract:

At its crux, environmental law is about forcing potential polluters to act in ways they would not otherwise. To do this, environmental law attempts to make noncompliance more costly than compliance. Without doing so, potential polluters would pollute regardless of its legality, a theory known as efficient breach of public law. Academics and judges alike have increasingly accepted this theory, resulting in courts struggling to prevent efficient breaches. But that has proven a difficult task. In Pakootas v. Teck Cominco Ltd., the Ninth Circuit sought to prevent efficient breach by barring citizen suits to enforce Environmental Protection Agency penalties, thereby concentrating enforcement power in the Environmental Protection Agency. This Note argues, however, that the Ninth Circuit ruling will generally make efficient breach more likely, even if it ensured compliance in Pakootas v. Teck Cominco Ltd. The Environmental Protection Agency has repeatedly failed to protect the environment due to lack of oversight, a lack of resources, or a lack of desire. Citizen suits are powerful tools to counteract the Environmental Protection Agency’s failure and should not be uniformly discarded. Contrary to the Ninth Circuit’s rule, I argue for a case-by-case approach to determine whether a citizen suit for Environmental Protection Agency penalties would increase or decrease the likelihood of compliance in each particular case. Even beyond the realm of citizen suits, environmental protection powers should be broadly shared among potential enforcers, including the Environmental Protection Agency, citizens, states, and Native American tribes, so that the probability of paying for pollution and the cost of noncompliance both rise.

Seattle Law’s American Indian Law Journal Publishes First Official Issue

Matthew L.M. Fletcher1 Comment

Here is their webpage. Read the entire issue here (PDF). Congrats!

Articles:

Toward a New Era of American Indian Scholarship: An Introductory Essay for the American Indian Law Journal Fletcher, Matthew L.M.
Tribal Supreme Court Project: Ten Year Report Guest, Richard
“Indians, in a Jurisdictional Sense”: Tribal Citizenship and Other Forms of Non-Indian Consent to Tribal Criminal Jurisdiction Spruhan, Paul
Of Whaling, Judicial Fiats, Treaties and Indians: The Makah Saga Continues Stevens, Jeremy
Sovereignty, Safety, and Security: Tribal Governments Under The Stafford and Homeland Security Acts Adams, Heidi K.
Defining the Contours of the Infringement Test in Cases Involving the State Taxation of Non-Indians a Half-Century after Williams v. Lee Quigley, Nathan
The Jay Treaty Free Passage Right In Theory and Practice Smith, Caitlin C.M.

New Fletcher Working Paper on Amicus Briefs in the Supreme Court’s Indian Cases

Matthew L.M. Fletcher

I have posted a fairly rough draft of a new paper titled, “The Utility of Amicus Briefs in the Supreme Court’s Indian Cases,” on SSRN. Comments welcome.

Here is the abstract:

Four times in the past 15 years, arguments or information raised by amici before the Supreme Court have had dramatic impacts on the Court’s decision making process in cases involving federal Indian law. In two cases involving government contracting, amicus briefs filed by the United States Chamber of Commerce supporting tribal interests played important roles in pointing out the impact the Court’s decision would have on defense and other government contractors. In another case, an amicus railroad company alleged that the procedures in one tribal court were stacked against nonmembers, apparently causing the Court to reconsider its views on tribal civil jurisdiction. In a fourth case, an amicus resuscitated a line of argument long thought to be retired from the field (in fact, none of the parties briefed the argument) and persuaded the Court to decide a case on that basis. What about these briefs, as opposed to the hundreds of other Supreme Court amicus briefs filed in the Court’s Indian cases, served to influence the Court so heavily? This short paper hopes to sort out a few general guidelines for amicus brief writers in federal Indian law cases by reviewing a series of amicus briefs and how we know the Court deals with them.

New Scholarship on Tribal Bonds

Matthew L.M. Fletcher

Bill Maurer and Justice Richland have posted their paper, “Lex Llewellyn and the Tribal Tax Status Act: ‘Fallible Gropings’ in Law and Society,” on SSRN.

Here is the abstract:

This article is the result of our inquiry into two proximate fields in which issues of law, custom and markets arise in sociolegal scholarship and praxis: the mid-20th century jurisprudence of the legal realist Karl Llewellyn and the contemporary debates surrounding efforts by tribal governments in the U.S. to issue tax-exempt bonds. Both are sites for efforts by legal scholars and practitioners to grapple with the convergence of social categories that, until very recently, are normally held apart – Native Americans, law, and commerce. We first explore Llewellyn’s efforts at drafting the Uniform Commercial Code, and the extent to which in this and his The Cheyenne Way (written at virtually the same time), he drew considerable influence from the American pragmatist philosophical tradition. In so doing, we find that his jurisprudence and lawmaking (often maligned for its circular reasoning) can be better understood as an effort to announce a philosophy of law and enact commercial legislation that was more a method for doing legal analysis and taking legal action than it was an expression of legal principles. Once understood in this way, we suggest it offers a fresh way of accounting for the performative force of law that can move sociolegal research beyond certain constructivist impasses. We then offer how such an approach can be brought to bear on the unfolding relationships among custom, law and commerce in the back and forth between scholars, law-makers, and tribal leaders around tribal tax-exempt bonds and their regulation.

Ray Cross on Fracking and the Fort Berthold Reservation

Matthew L.M. Fletcher

Probably the most important article on fracking in Indian country so far.

Raymond Cross has published “Development’s Victim or Its Beneficiary?: The Impact of Oil and Gas Development on the Fort Berthold Indian Reservation” in the North Dakota Law Review.

Full Panel of the Sixth Circuit Strikes Down Prop 2, Michigan’s Anti-Affirmative Action Amendment.

Kate Fort

A split of the Sixth Circuit upheld the 3 judge panel. Our previous coverage of Prop. 2 here.

Here.

COLE, J., delivered the opinion of court in which MARTIN, DAUGHTREY, MOORE, CLAY, WHITE, STRANCH, and DONALD, JJ., joined; and BATCHELDER, C. J., and GIBBONS, ROGERS, SUTTON, COOK, and GRIFFIN, JJ., joined in Part II.B and C. BOGGS, J. (pp. 37–40), delivered a separate dissenting opinion, in which BATCHELDER, C. J., joined. GIBBONS (pp. 41–57), delivered a separate dissenting opinion, in which BATCHELDER, C. J., and ROGERS, SUTTON, and COOK, JJ., joined, and GRIFFIN, J., joined with the exception of Part III. ROGERS (pg. 58) delivered a separate dissenting opinion, in which COOK, J., joined. SUTTON (pp. 59–69), delivered a separate dissenting opinion in which BATCHELDER, C. J., and BOGGS and COOK, JJ., joined. GRIFFIN, J. (pp. 70–74), delivered a separate dissenting opinion.

A student seeking to have her family’s alumni connections considered in her application to one of Michigan’s esteemed public universities could do one of four things to have the school adopt a legacy-conscious admissions policy: she could lobby the admissions committee, she could petition the leadership of the university, she could seek to influence the school’s governing board, or, as a measure of last resort, she could initiate a statewide campaign to alter the state’s constitution. The same cannot be said for a black student seeking the adoption of a constitutionally permissible race-conscious admissions policy. That student could do only one thing to effect change: she could attempt to amend the Michigan Constitution—a lengthy, expensive, and arduous process—to repeal the consequences of Proposal 2. The existence of such a comparative structural burden undermines the Equal Protection Clause’s guarantee that all citizens ought to have equal access to the tools of political change. We therefore REVERSE the judgment of the district court on this issue and find Proposal 2 unconstitutional. We AFFIRM the denial of the University Defendants’ motion to be dismissed as parties, and we AFFIRM the grant of the Cantrell Plaintiffs’ motion for summary judgment as to Russell.

Scalia Memorandum to Brennan in Duro v. Reina

Matthew L.M. Fletcher

In the spirit of posting old documents (see our Nixon post yesterday), we are delighted to present a find from the late David Getches’ papers (many, many thanks to Jane at the Colorado Law Library for hunting for this and sending it along!):

DuroVReinaScaliaMemo

Here is an image of the memo, which David made a centerpiece of his deeply influential California Law Review article, “Conquering the Cultural Frontier: The New Subjectivism of the Supreme Court in Indian Law .” Jane believes David or his RA made the marks on the memo.

Ryan Seelau on Native Juvenile Justice Systems

Matthew L.M. Fletcher

Ryan Seelau has published, “The Kids Aren’t Alright: An Argument to Use the Nation Building Model in the Development of Native Juvenile Justice Systems to Combat the Effects of Failed Assimilative Policies,” in the Berkeley Journal of Criminal Law.