Scholarship

Fletcher on “Tribal Membership and Indian Nationhood”

Matthew L.M. Fletcher

I just posted a short paper prepared for an American Indian Law Review symposium on Indians and identity. The paper, “Tribal Membership and Indian Nationhood,” is a sort of sequel to my NYT’s piece on the Cherokee Freedmen (link to that whole debate is here).

Here is the abstract of the new paper:

American Indian tribes are in a crisis of identity. No one can rationally devise a boundary line between who is an American Indian and who is not. Despite this, each federally recognized tribe has devised a legal standard to apply in deciding who is a member and who is not. Even with some ambiguity and much litigation, these are relatively bright lines. Some Indians are eligible for membership, and others are not eligible. In some rare circumstances, some non-Indians are eligible and become members. However, these bright line rules are crude instruments for determining identity, and often generate outcomes that conflict with legitimate Indian identity.

This paper is about Indian tribes and Indian nations. For purposes of this discussion, there is a difference between the two. I hope to discuss how Indian tribes, shackled to some extent by these intractable questions, can develop into Indian nations. I believe there is room in the American constitutional structure for Indian nations.

I will define what I mean by Indian nationhood. I draw from pre-contact and early post-contact Anishinaabe history to reinvigorate what nationhood meant traditionally. I argue that nations must allow nonmembers some form of political power, though I leave specific details to others. I conclude by arguing that Indian nationhood, in the long-run, is a laudable and perhaps even mandatory goal for modern tribal communities’ survival.

Two-Thirds of Frank Pommersheim’s South Dakota Law Review Trilogy

Matthew L.M. Fletcher

Incl. Electronic Paper Amicus Briefs in Indian Law: The Case of Plains Commerce Bank v. Long Family Land & Cattle Co.
56 S.D. Law Review 86 (2011)
 Frank Pommersheim
University of South Dakota Law School
Date Posted: August 06, 2012

Incl. Electronic Paper At the Crossroads: A New and Unfortunate Paradigm of Tribal Sovereignty
South Dakota Law Review, Vol. 55, No. 48, 2010
 Frank Pommersheim
University of South Dakota Law School
Date Posted: August 06, 2012

We’ll post part III (“The Crazy Horse Malt Liquor Case”) when we get a nice pdf.

Ryan Dreveskracht on VAWA and the Objections to an Oliphant Fix

Matthew L.M. Fletcher

Ryan Dreveskracht has provided a draft of his paper, “House Republicans Add Insult to Native Womens’ Injury,” forthcoming in the University of Miami Race and Social Justice Law Review.

Here is the draft:

 

Aug_16_2012 VAWA Manuscript Submission

New Scholarship on “Whiteness” in the Pacific Northwest

Matthew L.M. Fletcher

John Shuford has posted “‘The Tale of the Tribe and the Company Town’: What We Can Learn About the Workings of Whiteness in the Pacific Northwest” on SSRN. It is forthcoming in the Oregon Law Review. What town is it?

Here is the abstract:

This Article relates ‘the Tale of the Tribe and the Company Town,’ which is unfolding somewhere in the Inland Northwest within the American Pacific Northwest. Insofar as the tale involves a federally recognized tribe, it is a tale that one might tell with attention to Indian law and policy, tribal sovereignty, and tribal interests and histories. However, this tale also implicates a nexus of historical influences and contemporary phenomena, and this Article presents the tale as an heuristic tool for surfacing and exploring some of these influences and phenomena, including white ‘amenity’ in-migration, ‘whitopia’ communities, company towns, secessionism, xenophobia and hate, racial exclusion and discrimination, domestic terrorism, and contested regionalisms. Some of these influences and phenomena have deep roots; others have unsettling current manifestations in the Inland Northwest region and throughout the Pacific Northwest (or Cascadia, as it is now sometimes called). Having presented the tale, and having worked to surface and explore facets of past factors, present conditions, and future possibilities that it implicates, the Article concludes with five insights and a few hopes.

New Book by Blake Watson on Johnson v. M’Intosh

Matthew L.M. Fletcher

Buying America from the Indians: Johnson v. McIntosh and the History of Native Land Rights 

Blake A. Watson has served as an attorney with the U.S. Department of Justice and is now Professor of Law at the University of Dayton.

The backstory on the court decision that defined and limited American Indian property rights

The U.S. Supreme Court ruling in Johnson v. McIntosh established the basic principles that govern American Indian property rights to this day. In the case, more than one Anglo-American purchaser claimed title to the same land in what is now southern Illinois. The Piankeshaw Indians had deeded the land twice—once to speculators in 1775, and again, thirty years later, to the United States by treaty. The Court decided in favor of William McIntosh, who had bought the land from the U.S. government. Writing for the majority, Chief Justice John Marshall declared that the “discovery” of America had given “exclusive title to those who made it”— namely, the European colonizers. According to Johnson, the Piankeshaws did not own what they thought was their land. Indeed, no Indian tribe did.

Blake A. Watson’s examination of Johnson v. McIntosh and its impact offers a comprehensive historical and legal overview of Native land rights since the European discovery of the New World. Watson sets the case in rich historical context. After tracing Anglo-American views of Native land rights to their European roots, Watson explains how speculative ventures in Native lands affected not only Indian peoples themselves but the causes and outcomes of the French and Indian War, the American Revolution, and ratification of the Articles of Confederation. He then focuses on the transactions at issue in Johnson between the Illinois and Piankeshaw Indians, who sold their homelands, and the future shareholders of the United Illinois and Wabash Land Companies.

The final chapters highlight the historical legacy of Johnson v. McIntosh for federal policy with regard to Indian lands. Taught to first-year law students as the root of title for real property in the United States, the case has also been condemned by the United Nations and others as a Eurocentric justification for the subjugation of the Indians. Watson argues that the United States should formally repudiate the discovery doctrine set forth in Johnson v. McIntosh.

The thorough backstory and analysis in this book will deepen our understanding of one of the most important cases in both federal Indian law and in American property law.

Angelique EagleWoman on Re-Structuring the Sovereign Relationships between Tribal Nations

Matthew L.M. Fletcher

Angelique EagleWoman has a new paper forthcoming from the University of Baltimore Law Review, “Bringing Balance to Mid-North America: Re-Structuring the Sovereign Relationships between Tribal Nations and the United States.”

Here is the abstract:

The relationships between Tribal Nations and the United States have evolved over time and often in a lopsided manner, with the branches of the U.S. government unilaterally dictating the relationship. International norms require bilateral agreements between governments for full recognition of human rights and to promote peaceful relations. In the foundational Marshall Trilogy cases, Chief Justice John Marshall emphasized the international characteristics of the interactions between Tribal Nations and the newly-formed United States nation-state. The idea of a smaller nation aligning with a larger nation as an international ally is a model worth exploring in analyzing contemporary Tribal Nations’ alignments with the United States. Once the United States gained military strength over Tribal Nations, the United States proceeded, by and large, to take unilateral action against Tribes in mid-North America. This article asserts that bilateralism is required for a peaceful, non-oppressive balance between Tribal Nations and the United States as sovereign governments.

New Scholarship on Wisconsin’s Indian Mascot Law

Matthew L.M. Fletcher1 Comment

The Marquette Sports Law Review has published “Wisconsin Legislature Employs Halftime Adjustment: How Wisconsin’s “New” Indian Mascot Law Changes the Outlook for Future Challenges to the Use of Discriminatory Nicknames, Mascots, and Logos in Wisconsin Schools.”

An excerpt:

This Comment provides an analysis of the history of the Indian mascot controversy as it has played out in Wisconsin high schools. Part II examines Wisconsin’s pupil nondiscrimination statute, the initial legal basis employed to challenge a school district’s use of Indian names and logos. Thereafter, Part III shifts the focus to Wisconsin’s “new” Indian mascot law by providing a thorough analysis of the “new” law, including its legislative history, specific provisions, rules for enforcement, decisions, and potential responses. Next, Part IV compares the two statutes used in Wisconsin to challenge Indian mascots and discusses the effects of their differences. Finally, Part V analyzes the “new” law, proposes implications for future challenges, and offers concluding remarks on the Indian mascot controversy within Wisconsin.

Marketa Trimble Proposes International Convention on Internet Gaming

Matthew L.M. Fletcher

Marketa Trimble has posted her paper, “Proposal for an International Convention on Online Gambling,” on SSRN.

Here is the abstract:

The proposal, which will be published as a chapter in a volume from the Internet Gaming Regulation Symposium co-organized by the William S. Boyd School of Law of the University of Nevada, Las Vegas, in May 2012, presents the outline of an international convention (‘Convention’) that will facilitate cooperation among countries in enforcement of their online gambling regulations while allowing the countries to maintain their individual legal approaches to online gambling. Countries continue to vary in their approaches – some permit and regulate, and others prohibit online gambling, and even countries that permit and regulate online gambling approach the issue differently. Countries cannot enforce their own online gambling regulations without assistance from other countries – specifically, the countries where online gambling operators have their operations and/or their assets. Under the proposed Convention, national online gambling regulators would cooperate in the exchange of necessary information, in the licensing and standardization of technological requirements for online gambling operators, and, most importantly, in assisting with the enforcement of foreign country regulations by imposing geolocation and filtering requirements on online gambling operators. The chapter discusses the challenges that the proposal faces and suggests that the challenges can be overcome. Recent events in the online gambling world, such as ‘Black Friday,’ demonstrate a pressing need for effective international cooperation among Internet gambling regulators, and the proposed Convention, by providing a solution to the vexing problem of enforcement of online gambling regulation on the Internet, can provide the impetus for national discussions on online gambling.

New Scholarship (In Progress) on the Eagle Act and Religious Freedom

Matthew L.M. Fletcher

Kathryn Kovacs has posted her draft paper, “Alleviating the Tension between Species Preservation and Religious Freedom,” on SSRN.

Here is the abstract:

The Bald and Golden Eagle Protection Act prohibits the taking or possession of eagles and eagle parts. Recognizing the centrality of eagles in many Native American religions, Congress carved out an exception to that prohibition for “the religious purposes of Indian tribes.” The problems with the administration of that exception are reaching crisis proportions. At the Fish and Wildlife Service’s National Eagle Repository, which collects dead eagles from around the country and distributes them to members of federally recognized tribes, more than 6,000 tribal members are on a waiting list for eagles. That list grows each year. The wait for a whole golden eagle is now more than four years. A growing number of people in the United States are practicing other religions, like Santeria, that require the use of bird feathers and cannot legally possess the eagle feathers they need for their religion. Frustration with the current system is feeding a burgeoning black market that threatens the viability of eagle populations. Neither of the Eagle Act’s goals are being met: eagles are not adequately protected, and tribal religious needs are not satisfied.

Scholarship in this area has neither fully elucidated the cross-cutting tensions in the administration of the Eagle Act, nor prescribed a concrete solution. This article fills that gap. First, the article examines the tension between species preservation and religious freedom; the tension between accommodating the religious needs of tribal members, but not others with the same religious needs; the tension within the case law itself; and the tension between the government’s effort to accommodate tribal religion and the deep dissatisfaction of the tribal community. This article then proposes a solution: changing the Fish and Wildlife Service’s administration of the exception from permitting individuals to permitting tribes and ultimately turning over much of the administration of the Indian tribes exception to the tribes acting collectively. The article explains how scholarship on indigenous cultural property, community property solutions to the tragedy of the commons, and tribal self-determination support this proposal. Finally, the article shows how this proposal will alleviate some of the tension in the administration of the Eagle Act’s Indian tribes exception.

New Scholarship: “A Libertarian Framework for Indian Rights”

Matthew L.M. Fletcher2 Comments

Torivio A. Fodder, a University of Arizona SJD student, has posted his dissertation, “A Libertarian Framework for Indian Rights,” on SSRN.Download here: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2089533.

Here is the abstract:

This dissertation outlines a new vision for Indian rights, drawing from the fields of libertarian political philosophy and critical race legal theory. The goal is to develop a framework for federal Indian policy that provides for a true realization of tribal self-determinaion, that maximizes the liberty interests of American Indians, and that promotes lasting economic development in Indian Country.