Scholarship

Blake Watson on the Doctrine of Discovery and the Elusive Definition of Indian Title

Matthew L.M. Fletcher

Blake Watson has posted his paper, “The Doctrine of Discovery and the Elusive Definition of Indian Title,” on SSRN. It is forthcoming in the Lewis & Clark Law Review.

Here is the abstract:

This article contends that, pursuant to the discovery doctrine developed and adopted by the U.S. Supreme Court, Indian tribes retained possession of their lands after European encounter, but no longer owned their land and no longer held unlimited disposition rights. This “limited possessor” definition of Indian title is particularly difficult to justify in view of contemporary norms of international indigenous rights, and should be rejected along with the doctrine of discovery.

NNALSA Writing Competition Winner: “Tipping NAGPRA’s Balancing Act”

Matthew L.M. Fletcher

Matthew H. Birkhold’s “Tipping NAGPRA’s Balancing Act: The Inequitable Disposition of ‘Culturally Unindentified’ Human Remains under NAGPRA’s New Provision” has been published in the William Mitchell Law Review — here.

New Scholarship on Intergovernmental Agreements at Navajo

Matthew L.M. Fletcher

Paul Spruhan has posted “Standard Contract Clauses in State-Tribal Agreements: The Navajo Nation Experience“, forthcoming in the Tulsa Law Review, on SSRN.

Here is the abstract:

The paper discusses the attempts by the Navajo Nation and the States of Arizona and New Mexico to create standard contract clauses for agreements between the Nation and those states. The Nation and the States have numerous contractual relationships, primarily concerning funding for Nation programs, but also concerning law enforcement, rights-of-way grants, and other issues. Sovereignty issues on both sides have complicated the contracting process, as the Nation and the states have legislatively-mandated contract clauses that each must include in their agreements. Further, dispute resolution issues have caused friction, as each side possesses sovereign immunity but allows arbitration if enforcement of an award is brought in its own court system.

In an attempt to resolve these issues, the Nation and the states recently have established standard contract clauses that apply generally to agreements between the sovereigns. The standard clauses allow for arbitration of disputes, with enforcement against the states in state court, and against the Nation in Navajo Nation court. In the case of Arizona, the standard clauses also cover discrimination, citizenship verification, and other issues. Though all issues have not been resolved by these clauses, and it remains to be seen how such clauses will be implemented, the standard contract clause model can be useful to other tribes and states who seek efficient and consistent methods of contracting without sacrificing core principles of tribal and state sovereignty.

New Scholarship on the Impact of the Doctrine of Discovery in Chile

Matthew L.M. Fletcher

Robert J. Miller, Lisa LeSage, and Sebastián López Escarcena have published “The International Law of Discovery, Indigenous Peoples, and Chile” in the Nebraska Law Review.

 

Addie Rolnick on the Promise of Mancari

Matthew L.M. Fletcher

Addie Rolnick, newly of UNLV law, has posted her paper, “The Promise of Mancari: Indian Political Rights as Racial Remedy,” on SSRN. It is forthcoming in the N.Y.U. Law Review. [This will be the first time NYU Law Review has published an article on Indian law, as opposed to a student note or comment, in decades, if ever (as far as I know).]

Here is the abstract:

In 1974, the Supreme Court declared that an Indian employment preference was based on a “political rather than racial” classification. The Court’s framing of Indianness as a political matter and its positioning of “political” as oppositional to “racial” has defined the trajectory of federal Indian law and influenced common sense ideas about what it means to be Indian ever since. This oppositional framing has had specific practical consequences, including obscuring the continuing significance of racialization for Indians and concealing the mutually constitutive relationship between racialization and Indian political status. This Article explores the legal roots of the political classification doctrine, its ongoing significance, and the descriptive limits and normative consequences of the ideas that it contains. Specifically, this Article argues that the political classification doctrine constructs race as an irrelevant matter of ancestry and Indianness as a simple matter of civic participation. This Article suggests a new framework for considering Indian issues and federal Indian law that draws on a more robust and realistic understanding of both race and Indianness to acknowledge the cyclical relationship between Indian racialization and Indian political status.

Bob Miller on The International Law of Colonialism

Matthew L.M. Fletcher

Robert Miller has posted his working paper, “The International Law of Colonialism: A Comparative Analysis,” on SSRN.

Here is the abstract:

The majority of the non-European world was colonized under an international law that is known as the Doctrine of Discovery. Under this legal principle, European countries claimed superior rights over Indigenous nations. When European explorers planted flags and crosses in the lands of native peoples, they were making legal claims of ownership and domination over the lands, assets, and peoples they had “discovered.” These claims were justified by racial, ethnocentric, and religious ideas of the alleged superiority of European Christians. This Article examines the application of Discovery by Spain, Portugal, and England in the settler societies of Australia, Brazil, Canada, Chile, New Zealand, and the United States. The comparative law analysis used in this Article demonstrates that these three colonizing countries applied the elements of the Doctrine in nearly identical ways against Indigenous peoples. Furthermore, the six settler societies analyzed here continue to apply this law today to restrict the human, property, and sovereign rights of Indigenous nations and peoples. This Article concludes that basic fairness and a restoration of the self-determination rights of Indigenous peoples mandates that these countries work to remove the vestiges of the Doctrine of Discovery from their modern day laws and policies.

New Study on the Impact of Information on Preferences toward Federal Indian Policy

Matthew L.M. Fletcher

Three University of Oklahoma scholars have posted “Exploring the Impact of Information on Preferences toward Federal Indian Policy in America” on SSRN.

Here is the abstract:

Studies suggest that information can have an influential effect on the preferences of mass publics, especially in cases where individuals lack existing knowledge or attitudes on an issue. Federal Indian policy is one such issue area that many Americans are generally unfamiliar with and have little exposure to in their everyday lives. Scholars argue that public support for the rights of tribes would be greater if individuals were better informed about the unique relationship that exists between Native nations and the federal government. Using data from a randomized survey experiment, we test the effects of information concerning U.S.-tribal relations on support for tribal sovereign rights and federal Indian programs and services. We observe the importance of both information and ideology across issue areas, with information increasing support for the rights of tribes to self-govern, but political ideology and other individual attributes dominating attitudes toward federally administered programs (in a way that renders information effects nonexistent). These preliminary observations reveal important differences in the extent to which information alone can influence public opinion on racial policies in America.

New Scholarship on How the Kansas Act is Unnecessary, Outdated, and Unfair

Matthew L.M. Fletcher

Michael C. Duma has published “Kansas’ Criminal Jurisdiction in Indian Country: Why the Kansas Act [18 U.S.C. § 3243] Is Unnecessary, Outdated, and Unfair” in the Washburn Law Journal.

Francis, Leeds, Organick, and Jefferson Exum on Concurrent Criminal Jurisdiction in Kansas

Matthew L.M. Fletcher

John J. Francis, [Dean] Stacy L. Leeds, Aliza Organick, and Jelani Jefferson Exum have published “Reassessing Concurrent Tribal-State-Federal Criminal Jurisdiction in Kansas” in the University of Kansas Law Review.

 

Michael Blumm on Why Aboriginal Title is Fee Simple Absolute

Matthew L.M. Fletcher

Michael Blumm has posted a paper with the title, “Why Aboriginal Title is Fee Simple Absolute” on SSRN. It is forthcoming in the Lewis & Clark Law Review.

Here is the abstract:

The Supreme Court’s 1823 decision in Johnson v. M’Intosh is a foundation case in both Indian Law and American Property Law. But the case is one of the most misunderstood decisions in Anglo-American law. Often cited for the propositions of the plenary power of the U.S. Congress over Indian tribes and the uncompensated takings of Indian title lands, the Marshall Court decision actually is better interpreted to recognize that Indian tribes had fee simple absolute to their ancestral lands. This article explains why the “discovery doctrine” should have been interpreted to be a fee simple absolute subject to the federal government’s right of preemption. Had the doctrinel laid down by Johnson been properly interpreted, its national and international effects today would have been much less pernicious.