Scholarship

New Scholarship on Tribal Sovereignty, Climate Change, and Intergovernmental Cooperation

Matthew L.M. Fletcher

James Hopkins has posted his new paper, “Tribal Sovereignty and Climate Change: Moving Toward Intergovernmental Cooperation,” published in NAVIGATING CLIMATE CHANGE POLICY: THE OPPORTUNITIES OF FEDERALISM (2011).

Here is the abstract:

Climate-change impacts directly affect the resources, communities, and cultural identity of tribal governments, but defining the role of tribal governments in addressing these impacts calls into question who decides the scope and content of tribal jurisdiction. Historically, state governments and the federal government sought ownership of Indian lands, and Congress and the courts privatized Indian lands and limited tribal authority, treating tribes as dependent nations and providing little opportunity for them to manage their natural resources as autonomous actors. In the 1970s, US Environmental Protection Agency recognized tribal governments as the primary parties for making environmental decisions and managing environmental programs on Indian lands and successfully lobbied Congress to recognize tribes as states for purposes of environmental laws. Recently, tribes have accessed US courts and international bodies seeking relief from climate-change impacts on human rights grounds. Although tribes’ success in court has been limited to date, their efforts illustrate the proactive approach of tribal governments in addressing climate change.

New Scholarship on Selective Endorsement of UNDRIP by Settler Countries

Matthew L.M. Fletcher1 Comment
Sheryl Lightfoot has published an article called “Selective Endorsement without Intent to Implement: Indigenous Rights and the Anglosphere” just published in the International Journal of Human Rights (Vol. 16, No. 1 Jan 2012.) — here: LIghtfoot IJHR 16.1 2012
Professor Lightfoot writes (and I am quoting from her):
analyzed the verbal commitments to the UNDRIP made by all four English-speaking settler countries. This analysis finds that they all engaged in a similar pattern of behavior that I call “selective endorsement.” The four of them each expressed how important Indigenous peoples’ rights are to international human rights. But, rather than accepting the UNDRIP as the internationally agreed upon set of standards, this group of countries attempted to unilaterally re-write those standards so that the four of them were already meeting international expectations without further changes to their domestic laws and policies.

New Scholarship on Tribal Customs and Land Use

Matthew L.M. Fletcher

John C. Hoelle has published his interesting paper, “Re-Evaluating Tribal Customs of Land Use Rights,” in the University of Colorado Law Review, available on SSRN.

Here is the abstract:

Indigenous peoples developed sustainable land tenure systems over countless generations, but these customary systems of rights are barely used by American Indian tribes today. Would increasing formal recognition of these traditional customs be desirable for tribes in a modern context? This Comment examines one traditional form of indigenous land tenure – the use right – and argues that those tribes that historically recognized use rights in land might benefit from increased reliance on these traditional customs. The Comment argues that in the tribal context, use rights can potentially be just as economically efficient, if not more so, than the Anglo-American system of unqualified, absolute ownership in land. The Comment also argues that tribal customs of land use rights may help preserve Indian cultural identity by cultivating core, non-economic values of tribal peoples. The Comment concludes by addressing some of the challenges tribes will likely face in attempting to more broadly rely on their customs of land use rights in the new millennium, while also remarking on some current and important opportunities for the re-integration of tribal customs in tribal land law.

Wyoming Law Review Indian Law Symposium Issue

Matthew L.M. Fletcher1 Comment

Here:

Current Issue: Vol. 11, No. 2 (2011)

Front Page

Indian Law

Ann Tweedy on Unjustifiable Expectations

Matthew L.M. Fletcher

Highly recommended!!!!

Ann Tweedy has posted her paper, “Unjustifiable Expectations,” on SSRN. Here is the abstract:

When the Supreme Court decides whether a tribe has jurisdiction over non-members on its reservation or addresses the related issue of reservation diminishment, it sometimes refers implicitly or explicitly to the non-Indians’ justifiable expectations, and Philip Frickey has argued that a concern with non-Indians’ justifiable expectations drives Court decisions about tribal jurisdiction even when the Court does not express that concern directly. The non-Indians’ assumed expectations arise from the fact that, when Congress opened up reservations to non-Indians during the allotment era, its assumption, and presumably that of non-Indians who purchased lands on reservations during that period, was that the reservations would disappear due to the federal government’s assimilationist policies, along with the tribes who governed them. To refute the idea that such non-Indian expectations were justifiable, I examine historical newspaper articles and other historical sources regarding the opening up of reservations to non-Indian purchasers, specifically focusing on articles relating to cessions by the Sioux Nation and especially the Cheyenne River Sioux Tribe. Such sources suggest that non-Indian purchasers were on notice, in at least some cases, of a potential violation of tribal rights in the opening of portions of reservations to non-Indian settlement. Based on my argument that “justifiability” encompasses both reasonableness and a notion of justice, this information is used to show that the non-Indian purchasers’ presumed expectations about the disappearance of reservations were not justifiable because the purchasers had notice in many cases that lands were unjustly being taken from the Sioux Nation and other tribes. If, as I will argue, non-Indian expectations of tribal disappearance were unjustifiable, such expectations should not be given weight in determinations of tribal jurisdiction today.

New Student Scholarship on the Second Circuit’s Decision in Oneida Indian Nation v. Madison County

Matthew L.M. Fletcher

The Buffalo Law Review has published, ‘The Power to Tax is the Power to Foreclose: Reuniting Law and Logic in Tribal Immunity from Suit.”

Updated Version of Tulalip Justice System Study

Matthew L.M. Fletcher

We previously posted the study here.

Here is the updated study:

Justice in Indian Country- A Case Study of the Tulalip Tribes

New Scholarship on Native Subsistence in Alaska and the National Historic Preservation Act

Matthew L.M. Fletcher

Danielle S. Pensely has posted her paper, Existence, Persistence, Resistance: Preserving Subsistence in the Copper River Delta of Southcentral Alaska, forthcoming from the Environmental Law Reporter, on SSRN.

Here is the abstract:

Ordinary existence in Cordova, Alaska illustrates an extraordinary range of subsistence practice, that is, the persistent wresting of food calories and spiritual orientation from the immediate natural environment through the harvest of renewable resources. Despite cataclysmic disruptions to include the arrival of whites, the Exxon Valdez Oil Spill, and anthropogenic climate change, the practice continues to animate a self-reliant and pluralistic society with a distinct local identity. The range of threats to the long-term health of the Copper River Basin is, however, intensifying – from the augmentation of wild Pacific salmon runs with hatchery fish to leaks and spills from the Trans-Alaska Pipeline, and from residential development to the construction of access to rich coal and oil fields for exploration and development.

This article intertwines twenty-seven narrative interviews with landscape theory to argue that the National Historic Preservation Act of 1966 (“NHPA”), as amended, 16 U.S.C. §§ 470-470×6, is up to the crucial task of protecting subsistence in Cordova. Indeed, NHPA directs the federal government “to foster conditions under which our modern society and our prehistoric and historic resources can exist in productive harmony and fulfill the social, economic, and other requirements of present and future generations.” Thus compelled, this article argues that living things are eligible for listing on the National Register: adverse effects to the wild salmon should trigger the consultative reconsideration of NHPA Section 106, as would be the case under the implementing regulations with any other object of functional, aesthetic, cultural, or scientific value. Alternatively a landscape, even a very large landscape like the Copper River Basin, is analogous to an urban or rural architectural district and on that basis should be listing eligible.

When historic preservation practice ostensibly prevents the development of a place to fullest potential, it is in fact insulating a place within which is freedom from official interference or infrastructure. The subsistence practitioners of Cordova consequently have the choice (now and in the future) to pursue and transmit – or to forget and abandon – their cultural values, in other words, their civic virtue. This concept of food sovereignty parallels accepted republican principles, thereby illuminating the relevance of subsistence and the Section 106 process as a counterweight to the compulsory consumption that typifies current political discourse.

Tulalip Tribes Justice System Case Study

Matthew L.M. Fletcher1 Comment

Important scholarship. [Will be replaced soon.]

Updated version:

Justice in Indian Country- A Case Study of the Tulalip Tribes

NPR Interview with Prof. Tiya Miles on Slavery and American Indians

Kate Fort2 Comments

Here.

Professor Miles, welcome back to the program. Thanks so much for joining us and, of course, congratulations again on the McArthur. And I’d like to ask you, when you first encountered stories of African-Americans and Native American slaves in Michigan, in the Michigan territory. I think it’s a surprise to many people to know or to even think about the fact that slavery existed that far north.

TIYA MILES: Well, I first encountered this when I took a class to the Ypsilanti Historical Museum, and we also took a local Underground Railroad tour. And we learned about an abolitionist here in southeast Michigan named Laura Haviland, who did work in Detroit and also in Ontario.

And she taught a school for escaped slaves in Canada, and there were blacks, as well as native people at that school. So that, for me, was the first clue that there was something between black people and native people in Detroit history regarding slavery, as well as in the Southeast.

MARTIN: Well, what have you been able to piece together about the slave experience in Michigan for both African-Americans and Native Americans? And I realize that the research is in its early stages. I know we want to stress that. But what have you been able to piece together?

MILES: Well, the first thing that strikes me about this research is that Detroit is a very unusual place. It was a major settlement for Native Americans, for French settlers, for British settlers and then later, for the Americans. So that meant that it was an area where lots of people were moving through and passing through.

There was a good deal of contestation over who would get to control Detroit. Would it be the French? Would it be the British? And would it be the Americans? And this meant that slavery also had a multilayered aspect in Detroit.

A little side note: Laura Haviland spent much of her adult life just outside of Adrian, Michigan in Raisin Township, and ran a school there, in addition to being a part of the Underground Railroad. Until 2010, a statute of her sat in front of Adrian City Hall. Put in storage while the old City Hall was demolished, the city is currently thinking about putting it in front of the Adrian Historical Society. Haviland’s papers are held by the University of Michigan, and she wrote her autobiography, A Woman’s Life Work in 1881. One of the first historical projects I ever worked on (including my first trip to an archive to look at her papers) was examining the many different editions Haviland released of A Woman’s Life Work, all with slight changes as she continually rewrote her life’s work.