Scholarship

Danielle Conway on Promoting Indigenous Innovation Through the Licensing of Article 31 Indigenous Assets and Resources

Matthew L.M. Fletcher

Danielle M. Conway has posted her paper, “Promoting Indigenous Innovation, Enterprise, and Entrepreneurship Through the Licensing of Article 31 Indigenous Assets and Resources.” She published the paper in the SMU Law Review.

Here is the abstract:

The notion that indigenous entrepreneurship is inherently paradoxical to participation in the western marketplace must be challenged, even though there is a fine balance indigenous entrepreneurs maintain with their own world and the western world. This balance considers that indigenous entrepreneurs exist within transgenerational communities with complex cross-cultural linkages with the west. Far from fully segregating from western society and the states in which they reside, indigenous entrepreneurs seek to promote indigeneity through indigenous and non-indigenous commerce. As Hindle and Lansdowne explain, “[t]here need be no paradox, no contradiction, no values sacrifice, no false dichotomy between heritage and innovation.” Reference to the goals and objectives of the United Nations Declaration on the Rights of Indigenous Peoples bear this out. For example, article 19 of the Declaration relates to Indigenous peoples’ participation with respect to issues that affect them, their lands, their resources, and their rights. The Declaration also calls for good-faith efforts by states to consult and cooperate with Indigenous peoples about economic and social development that directly or indirectly impacts their rights. Relevant to this paper, article 31 of the Declaration deals with Indigenous peoples’ right to exercise authority and control over their cultural heritage, traditional knowledge, and traditional cultural expressions in addition to any intellectual property rights in these assets and resources. Accordingly, this Article promotes the use of the Declaration on the Rights of Indigenous Peoples as a basis for asserting indigenous control over article 31 assets and resources to spur indigenous enterprise and innovation. After asserting control, Indigenous peoples can then operationalize the use of their article 31 assets and resources to counteract the “history of dispossession, assimilation, child removal and other previous colonial policies [that have] created a legacy” of economic disadvantage, political and structural disadvantage, geographic and cultural disadvantage, and collective and individual disadvantage. This article focuses on licensing as a mechanism to both implement the goals and objectives of the Declaration and to reassert indigenous authority and control over indigenous assets and resources.

Update to Most-Cited Law Review Articles of All Time

Matthew L.M. Fletcher

Here, from Fred Shapiro in the Michigan Law Review. No Indian law articles we could see.

Here is last summer’s TT listing of the 25 most-cited Indian law articles.

New Book on Tribal-State Relations in the Deep South

Kate Fort

Here.

The Other Movement: Indian Rights and Civil Rights in the Deep South [by Denise E. Bates] examines the most visible outcome of the Southern Indian Rights Movement: state Indian affairs commissions. In recalling political activism in the post-World War II South, rarely does one consider the political activities of American Indians as they responded to desegregation, the passing of the Civil Rights Acts, and the restructuring of the American political party system. Native leaders and activists across the South created a social and political movement all their own, which drew public attention to the problems of discrimination, poverty, unemployment, low educational attainment, and poor living conditions in tribal communities.
While tribal-state relationships have historically been characterized as tense, most southern tribes—particularly non-federally recognized ones—found that Indian affairs commissions offered them a unique position in which to negotiate power. Although individual tribal leaders experienced isolated victories and generated some support through the 1950s and 1960s, the creation of the intertribal state commissions in the 1970s and 1980s elevated the movement to a more prominent political level. Through the formalization of tribal-state relationships, Indian communities forged strong networks with local, state, and national agencies while advocating for cultural preservation and revitalization, economic development, and the implementation of community services.

 

Supreme Court Justices Really Are That Similar

Kate Fort

From SCOTUSblog:

The current members of the Supreme Court have remarkably similar backgrounds — they all attended either Harvard or Yale Law Schools, and have spent most of their careers in the cloistered setting of academia or appellate litigation. Although many have noted, and criticized, this lack of diversity, until now no one had compared the background of the current Justices with their predecessors. A new article by Professor Benjamin Barton does just that, confirming the perception that recent appointees lack the range of life experiences that characterized previous Courts. After canvassing an impressive amount of biographical data from the very first Chief Justice, John Jay, up to the most recent appointee, Justice Elena Kagan, Barton concludes that “the Roberts Court Justices have spent more pre-appointment time in legal academia, appellate judging, and living in Washington, D.C. than any previous Supreme Court. They also spent the most time in elite undergraduate and law school settings. Time spent in these pursuits has naturally meant less time elsewhere: The Roberts Court Justices spent less time in the private practice of law, in trial judging, and as elected politicians than any previous Court.”

The article is here.

New Book: “Captured Justice: Native Nations and Public Law 280” by Duane Champagne and Carole Goldberg

Matthew L.M. Fletcher

Here.

Captured Justice: Native Nations and Public Law 280

by Duane Champagne, Carole Goldberg

2012 • $30.00 • 244 pp • paper • ISBN: 978-1-61163-043-5 •LCCN 2011034877

The policy of forced assimilation, called “termination,” that Congress pressed upon Native Americans in the 1950s brought state criminal jurisdiction to more than half of all Indian reservations for the first time in American history. The law that accomplished most of this shift from a combination of tribal and federal control to state control is widely known as Public Law 280. Tribes did not consent to the new and alien forms of criminal justice, and the federal government provided no funding to state or local governments to ease the new burdens thrust upon them.

Present-day concerns about community safety in Indian country raise questions about the appropriate strategy for achieving that end. Is expanded state criminal jurisdiction an appropriate response, or should that option be off the table? Does the experience with Public Law 280 suggest conditions under which state jurisdiction is more or less successful?

Captured Justice is the first systematic investigation of the success or failure of the Public Law 280 program substituting state for tribal and federal criminal justice in Indian country. The authors first identify a set of six conditions that are necessary for criminal justice to succeed in Indian country. They then present the results of hundreds of interviews and surveys at sixteen reservations across the United States, tapping reservation residents, tribal officials and staff, and state and federal law enforcement officers and criminal justice personnel, to find out how the state jurisdiction regime is faring and to compare experiences on Public Law 280 reservations with those on non-Public Law 280 reservations. Before-and-after case studies of tribes that were able to remove state jurisdiction from their reservations complete the book.

Captured Justice is both an important assessment of an historic federal Indian policy that remains with us today, and a guide to future criminal justice policy for Indian country.

New Edited Collection: “Tribes, Land, and the Environment”

Matthew L.M. Fletcher1 Comment

Tribes, Land, and the Environment

Edited by Sarah Krakoff and Ezra Rosser

Series: Law, Property and Society

ISBN: 978-1-4094-2062-0

Published May 2012

This book brings together diverse essays by leading Indian law scholars across the disciplines of indigenous and environmental law.  The chapters reveal the difficulties encountered by Native American tribes in attempts to establish their own environmental standards within federal Indian law and environmental law structures. Gleaning new insights from a focus on tribal land and property law, the collection studies the practice of tribal sovereignty as experienced by Indians and non-Indians, with an emphasis on the development and regulatory challenges these tribes face in the wake of climate change.

Continue reading →

Native America Calling Program on Bob Miller’s New Book “Reservation Capitalism: Economic Development in Indian Country”

Matthew L.M. Fletcher

Here.

(You have to enter the date of Wed May 30 and the start time of 11 am to hear the show.)

Bob Hershey on Globalization’s Impacts on Indigenous Peoples

Matthew L.M. Fletcher

Robert Hershey has posted his paper, “Globalization and its Special and Significant Impacts on Indigenous Communities,” on SSRN.

Here is the abstract:

Globalization is really a painting of the earth whose rendering can never be truly fixed. Yet, it is emblematic of the social dimensions of human interactions. Globalization has particular urgency for the world’s Indigenous Peoples. Many Indigenous systems of collective economic production and distribution do not conform to capitalism’s cultural emphasis on individual accumulation. This manuscript explores the challenges to Indigenous societies from economic hegemonic regimes, bioprospecting, nature conservation, and extended continuing and derivative impacts. Crucially, Indigenous Peoples do not passively accede to domination by global market forces. Resistance, negotiation, and consultation are common features of Indigenous communities’ interactions with transnational corporations and international economic policy bodies, but the definition and content of these terms play out very differently for distinct societies. The article suggests appropriate protocols for engaging Indigenous societies and recognizes alternatives to domination. It concludes with an examination of how Indigenous Peoples may be embracing internet technologies to further their claims to self-determination.

Two New Student Articles on Indian Law from the Columbia Human Rights Law Review

Matthew L.M. Fletcher

Columbia Human Rights Law Review recently published two student notes on Indian Law topics:

A Perfect Storm: The U.S. Anti-Trafficking Regime’s Failure to Stop the Sex Trafficking of American Indian Women and Girls (also here)

Protecting Native American Communities by Preserving Sovereign Immunity and Determining the Place of Tribal Businesses in the Federal Bankruptcy Code

New Student Scholarship on Tribal Waivers of Immunity by Unauthorized Tribal Officials

Matthew L.M. Fletcher

Adam Keith, a Penn Law student, has published “Who Should Pay for the Errors of the Tribal Agent?: Why Courts Should Enforce Contractual Waivers of Tribal Immunity When an Agent Exceeds Her Authority under Tribal Law.” The article appears in the Penn Journal of Business Law. The article criticizes a recent Sixth Circuit decision on the immunity of Section 17 corporations.

Here is a snippet:

When tribal commercial organizations engage in commercial dealings, their non-tribal counterparties almost universally insist that a waiver of tribal immunity be included within any contractual agreement so as to retain their access to state and federal courts should they decide to litigate any commercial disputes against the tribal entity. In a recent case, the Sixth Circuit weakened the reliability of these waivers by ruling that the court will not enforce such a waiver when a tribal agent assents to one while possessing only apparent authority in the eyes of the tribal counterparty but not actual authority under tribal law. This comment will argue that there are three reasons that courts should enforce such waivers: because doing so is consistent with the principles associated with waivers of tribal immunity; because it will not have deleterious effects on tribal sovereignty; and because it will improve the efficiency of tribal commercial dealings with non-tribal entities.