Scholarship

Cookson’s Empirical Analysis of the Location of Indian Casinos (and Commentary)

Matthew L.M. Fletcher

J. Anthony Cookson has published “Institutions and Casinos on American Indian Reservations: An Empirical Analysis of the Location of Indian Casinos” in the Journal of Law & Economics. Here is the abstract:

This paper empirically investigates the institutional determinants of whether a tribal government invests in a casino. I find that the presence of Indian casinos is strongly related to plausibly exogenous variation in reservations’ legal and political institutions. Tribal governments that can negotiate gaming compacts with multiple state governments, because tribal lands span state borders, had more than twice the estimated probability (.77 versus .32) of operating an Indian casino in 1999. Tribal governments of reservations where contracts are adjudicated in state courts, rather than tribal courts, have more than twice the estimated probability (.76 versus .34) of investing in an Indian casino, ceteris paribus. These findings suggest that states’ political pressures and predictable judiciaries affect incentives to invest in casinos. This study contributes, more generally, to the empirical literature on the effects of institutions by providing new evidence that low-cost contracting is important for taking advantage of substantial investment opportunities.

“Ceteris paribus” by the way means “all things being equal.”

Interestingly, this paper builds on Anderson et al. from a few years back suggesting that Indians living in PL280 states are richer because of state jurisdiction:

Building on Anderson and Parker (2008), this paper provides empirical evidence that Public Law 280 state court jurisdiction engenders Indian casino investment, which may itself lead to per capita income growth (see regression results in Anderson and Parker [2008], as well as Evans and Topoleski [2002]). Narrowing the scope of the response variable to a single important segment of the reservation economy enhances the validity of the estimates of my regressions. Instead of using broad measures of economic progress (for example, Anderson and Parker [2008] use per capita income) as the dependent variable, I use the presence of a casino investment by 1999.

But Carole Goldberg’s response to the Anderson paper (In Theory, In Practice: Judging State Jurisdiction in Indian Country, 81 University of Colorado Law Review 1027 (2010), sadly is not discussed in Cookson’s paper. Prof. Goldberg writes in one passage I find particularly important:

For purposes of empirical research, this statutory assignment of tribes to one category or another raises the possibility of selection bias. In other words, if Congress selected the mandatory states and their tribes because these tribes were the most assimilated or because they were otherwise the best positioned to achieve economic success, then that very selection would determine the outcome of higher per capita income and not whether the reservation was subject to state jurisdiction as opposed to tribal jurisdiction. There is, in fact, reason to believe that Congress chose tribes for inclusion and exclusion from Public Law 280 based on their inclination to participate in the market economy and to strive for economic success as measured by per capita income.

Ultimately, for me, it doesn’t seem to make any real sense to conclude that anything except location and economics markets force us to reach the conclusion PL280-state Indians are richer (or have greater casino investment opportunity) than non-PL280-state Indians. State jurisdiction is a red herring. If the states studied included South Dakota, North Dakota, and Montana (bad gaming markets) instead of California, Minnesota, and Wisconsin (better gaming markets), and the studies reached the same conclusion, then I’d be more persuaded.

If anyone wants the Cookson, Anderson & Parker, or Goldberg papers, let me know.

Scholarship from Berger and Owley

Kate Fort1 Comment

Here is Bethany Berger’s article on Williams v. Lee in the Michigan Law Review.  We first posted about it here.

And here is an abstract of an article by Jessica Owley on tribes as conservation easement holders.  The full paper is not yet available for download.

South Atlantic Quarterly Issue on Indigenous Sovereignty

Matthew L.M. Fletcher

Edited by Eric Cheyfitz, N. Bruce Duthu, and Shari M. Huhndorf.

A link to the TOC is here.

Here are links to the abstracts and articles:

Continue reading →

Gonzaga Law Review CFP: Modern Issues of Tribal Sovereignty and Jurisdiction

Matthew L.M. Fletcher

Call for Papers

 GONZAGA LAW REVIEW

Volume 47:3

 Modern Issues of Tribal Sovereignty and Jurisdiction

 Gonzaga University has historically concerned itself with the advancement of Native rights.  Father Joseph Cataldo, S.J., founded the university in 1887 as a missionary school with a primary purpose of offering education to northwestern tribal children.  This commitment has grown over the years and is exemplified by the business school’s American Indian Entrepreneurship Program and the law school’s Indian Law Clinic.

Today, we further affirm this commitment and announce that Volume 47:3 of the Gonzaga Law Review will be devoted to Modern Issues of Tribal Sovereignty and Jurisdiction.  Some of the topics that we hope to explore include, but are not limited to:

·      Public Law 83-280 and the interplay between federal, state, and tribal jurisdiction

·      Tribal court jurisdiction and non-Indian activities and lands

·      Immigration and extradition between tribal and non-tribal lands

·      The Washington State Indian Child Welfare Act and any effects it implicates on implementation of the Federal Indian Child Welfare Act

Submissions, paper proposals, and questions should be sent to Mark Melter at mmelter@lawschool.gonzaga.edu.  Final drafts of accepted submissions are due on December 1, 2011.  Volume 47:3 will be published in April 2012.  The Gonzaga Law Review and the Indian Law Clinic are also considering a conference in Spring 2012 to coincide with the release of the issue.  Please indicate in your submission whether you have interest in participating in a potential conference regarding modern issues of tribal sovereignty and jurisdiction.  We look forward to your contributions.

Article on Tribes and Self-Defense

Ann Tweedy

For anyone who’s interested, my article, “‘Hostile Indian Tribes . . . Outlaws, Wolves, . . . Bears . . . Grizzlies and Things Like That?’ How the Second Amendment and Supreme Court Precedent Target Tribal Self-Defense,” recently came out in the University of Pennsylvania Journal of Constitutional Law and is now available on Westlaw and Lexis. It examines the legal history of tribes’ and Indians’ right to self-defense (or lack thereof) and right to bear arms and argues that tribes are still being punished for past acts of self-defense.

Three Papers from Rebecca Tsosie

Matthew L.M. Fletcher

Incl. Electronic Paper Climate Change, Sustainability, and Globalization: Charting the Future of Indigenous Environmental Self-Determination
Environment & Energy Law & Policy Journal, Vol. 4, No. 2, p. 188, 2009
Rebecca A. Tsosie 
Arizona State University (ASU) – Sandra Day O’Connor College of Law
Date Posted: June 19, 2011
Accepted Paper Series

Incl. Electronic Paper Keynote Address – Indigenous Peoples and Global Climate Change: Intercultural Models of Climate Equity
Journal of Environmental Law & Litigation, Vol. 25, p. 7, 2010
Rebecca A. Tsosie 
Arizona State University (ASU) – Sandra Day O’Connor College of Law
Date Posted: June 19, 2011
Accepted Paper Series

Incl. Electronic Paper Native Nations and Museums: Developing an Institutional Framework for Cultural Sovereignty
Tulsa Law Review, Vol. 45, No. 1, p. 3, Fall 2009
Rebecca A. Tsosie 
Arizona State University (ASU) – Sandra Day O’Connor College of Law
Date Posted: June 19, 2011
Working Paper Series

ABA Judges Journal Article on ICWA by Judge Tim Connors

Matthew L.M. Fletcher

The article is titled “Our Children are Sacred: Why the Indian Child Welfare Act Matters.”

Here:

JJ_SPR11_Connors

Justice Breyer and “The Yale Lectures”

Matthew L.M. Fletcher1 Comment

Available here, drawing from his book Making Democracy Work.

Here is an excerpt:

After the decision [in Worcester], Justice Joseph Story wrote to his wife: “Thanks be to God, the Court can wash their hands clean of the iniquity of oppressing the Indians and disregarding their rights.” A few days later, he wrote to another
correspondent: “The Court has done its duty. Let the Nation now do theirs.” Story added: “Georgia is full of anger and violence. . . . Probably she will resist . . . , and if she does, I do not believe the President will interfere . . . .”

And that is just what happened. Georgia said it would resist the decision as a “usurpation” of power. And this is the case about which President Andrew Jackson supposedly said, “John Marshall has made his decision, now let him enforce it.”
The President considered he had as good a right as the Court to decide what the Constitution meant and how it should be enforced. Worcester stayed in jail. John Marshall wrote to Story: “I yield slowly and reluctantly to the conviction that our Constitution cannot last.”

What was wrong with Jackson’s position? The President soon found out. South Carolina, noticing what Georgia could do, decided it would follow suit— but in respect to federal taxes. It passed a law prohibiting the payment of federal customs duties. And Jackson then began to realize the threat to the Union inherent in the principle. He quickly obtained a “force bill” from Congress, authorizing him to send troops to South Carolina. And South Carolina withdrew its law. The press began to write about Georgia and the Cherokees: how did Georgia and Worcester differ from South Carolina and taxes? And Georgia began to back down. It reached an agreement with Worcester, releasing him from jail. And so the Court’s order was ultimately enforced. Or was it?

There is no happy ending here. Jackson sent troops to Georgia, but not to enforce the Court’s decision or to secure the Indians their lands. To the contrary, he sent federal troops to evict the Indians. He found a handful of Cherokees willing to sign a treaty requiring departure; he ignored 17,000 other Cherokees who protested that they would die rather than agree to go; and he forced the tribe to move to Oklahoma, walking there along the Trail of Tears, so-called because so many Cherokees died along the way. Their descendants live in Oklahoma to this day.

This episode suggests a negative answer to Hotspur’s question. The Court may follow the law—even in an unpopular matter. But that does not matter very much. Force, not law, will prevail. The summoned “spirits” will not come.

Peter Erlinder on Minnesota v. Mille Lacs Band

Matthew L.M. Fletcher1 Comment

Peter Erlinder has posted a great paper, “State of Minnesota v. Mille Lacs Band of Chippewa Indians, Ten Years On,” on SSRN. Here is the abstract:

In State of Minnesota v. Mille Lacs Band of Chippewa Indians, 526 U.S. 172 (1999) the Supreme Court unanimously held that, by guaranteeing Anishinabe (Chippewa) rights to hunt, fish and gather, U.S. treaty negotiators severed the right to use the land from formal title to the land in an 1837 (and 1854) Treaty. The Mille Lacs majority and dissent differed only as to whether Treaty-guaranteed usufructuary property rights had been abrogated by subsequent events. The majority held the usufructuary rights had not been abrogated.

Off-Reservation Anishinabe Usufructuary Property Rights in Northern Minnesota

With respect to Minnesota Territory, not ceded in 1837 and 1854 Treaties, two major questions remain after the Mille Lacs decision: (a) did the Anishinabe have treaty-guaranteed usufructuary rights outside the 1837 and 1854 ceded territory; and (b) if so, are treaty-guaranteed usufructuary rights outside the 1837 and 1854 ceded territory, are also valid today? This article answers these questions by elaborating Minnesota treaty history to include usufructuary property rights guaranteed in Treaties of 1795, 1825, 1826, as well as, a relatively unrecognized clause of the 1854 Treaty, all of which guarantee some form of usufructuary property rights outside the 1837 and 1854 ceded territory. The article concludes that these treaties, largely ignored by the courts until now, are likely to be sources of as yet unrecognized Anishinabe usufructuary property rights in the 21st Century.

Modern Usufructuary Rights and Natural Resource Co-Management

Further, because usufructuary property rights include “the right to modest living,” environmental protection to maintain the long-term value of these property rights will have significant long term off-reservation land-use.

Sam Morison on the Seminoles, Andrew Jackson, and American Military Justice

Matthew L.M. Fletcher

Samuel T. Morison has posted History and Tradition in American Military Justice on SSRN, at at.  It is forthcoming this fall in the Univ. of Penn. Journal of Int’l Law.  Here’s the abstract:

At present, there are two military commission cases involving terrorism defendants incarcerated at Guantánamo Bay making their way through the appellate courts. In both cases, the defendants are challenging their convictions for “providing material support for terrorism.” While this is a federal offense that could be prosecuted in an Article III court, the legal issue in these appeals is whether providing material support is also a war crime subject to the jurisdiction of a military tribunal. Congress incorporated the offense into the Military Commissions Act, but that is not dispositive, since it is arguably beyond Congress’ legislative competence to create war crimes out of whole cloth and then impose them on foreign nationals having no jurisdictional nexus to the United States.

As a result, the Government has not disputed that there must be at least some historical evidence that the conduct now styled “providing material support” to an enemy previously has been treated as a war crime, where the defendant was a non-resident alien who owed no duty of allegiance to the injured State. In what might be fairly described as a desperate attempt to discharge its burden of persuasion, the Government has now embraced the only “precedent” that comes close to fitting this description. This is problematic, however, because it is also one of the most notorious episodes in the history of American military justice.

In 1818, then Major General Andrew Jackson led an armed invasion of Spanish Florida, thereby instigating the First Seminole War. In the course of the conflict, his troops captured two British citizens who had been living in Florida among the Seminole Indians. In his inimitable style, Jackson impetuously ordered the summary trial and execution of these men, allegedly for “inciting” the Seminoles to engage in “savage warfare” against the United States. Worse yet, Jackson’s immediate motivation for the invasion was to recapture fugitive slaves, who had escaped from the adjacent States and found refuge among the Seminoles. In addition to territorial expansion, his mission was to return this “property” to their “rightful” owners and prevent Florida from serving as a safe haven for runaway slaves.

Remarkably, the legal basis of the Government’s assertion of military jurisdiction over material support charges therefore rests on Jackson’s decision to execute two men, who were almost certainly innocent, in the context of a war of aggression waged to vindicate the property rights of antebellum Southern slaveholders. The purpose of this essay is to reintroduce the episode to a wider audience, and to reflect on the implications of the Government’s decision to rely on it as a precedent for a modern war crimes prosecution.