Scholarship

New Scholarship by Hokelei Lindsey on the Native Hawaiian Ceded Lands Trust

Matthew L.M. Fletcher

Hokelei Lindsey has posted her paper, “Native Hawaiians and the Ceded Lands Trust: Applying Self – Determination as an Alternative to the Equal Protection Analysis,” on SSRN. It is forthcoming in the American Indian Law Review. The AILR’s shift over the last few years to a peer-review system continues to pay dividends.

Here is the abstract:

On February 25, 2009 the United States Supreme Court heard oral arguments in Hawai‘i v. Office of Hawaiian Affairs, a case dealing with Hawai‘i’s ceded lands trust. The aftermath of that case likely will put the ceded lands trust and its native Hawaiian purpose on a collision course with the Equal Protection clause of the United States Constitution. Scholars previously have argued that “native Hawaiian” is a racial classification and strict scrutiny should apply. Other commentators have drawn an analogy to programs that benefit Native American tribes and argue that a rational basis standard should apply. In this article, I propose a previously unexamined approach to analyzing the native Hawaiian purpose of the ceded lands trust. The original purpose of the lands that comprise the trust was determined by the Kingdom of Hawai‘i before incorporation into the United States, therefore, I argue that the logic of the equal protection analysis is misplaced. Consistent with its original purpose, the trust is about self – determination not the allocation of government benefits based on race, which would trigger equal protection. Thus, understanding the trust and the trust res through the lens of self – determination offers an alternative to the equal protection analysis and provides a means of reconciliation between the United States and the Native Hawaiian people.

Michael Blumm on the Columbia River Gorge and the History of Natural Resources Law

Matthew L.M. Fletcher

Michael Blumm posted his paper, “The Columbia River Gorge and the Development of American Natural Resources Law: A Century of Significance” at SSRN (H/t to Legal History Blog). Here is the abstract:

The Columbia River Gorge, site of the nation’s first national scenic area and the only near sea level passage through the Cascade Mountains, possesses the longest continuously occupied site of human habitation in North America. The Gorge has served as a major transportation corridor between the Pacific and the Great Basin for hundreds of years, is home to spectacular scenery, dozens of waterfalls, many sacred sites, and abundant recreational activities, including world-class kite boarding and wind surfing. The Gorge has also been the location of over a century of legal battles that have made major contributions to American natural resources law. From judicial interpretations of 19th Indian treaties, to the development of the largest interconnected hydroelectric system in the world, to ensuing declines in what were once the world’s largest salmon runs – ultimately resulting in endangered species listings – to innovative federal statutes concerning electric power planning and conservation and land use federalism, to compensation schemes for landowners burdened with regulation, to dam removal and conflicts between sea lions and salmon, the Gorge has spawned a legal history as rich as its geography. This article surveys these developments and suggests that no area of the country has produced more varied and significant contributions to natural resources law.

New Scholarship on Indian Gaming and Bankruptcy

Matthew L.M. Fletcher

Emir Aly Crowne (né Mohammed), Andrew Black, and S. Alex Constantin have posted Not Out of the (Fox)Woods Yet: Indian Gaming and the Bankruptcy Code on SSRN. It has been published in the UNLV Gaming Law Journal.

Here is the abstract:

Does tribunal sovereignty trump federal bankruptcy law? This is the basic question we explore in this article. We will argue that where a tribal corporate entity voluntarily enters into a business contract with non-tribal investors, it must be made subject not only to the relevant rules and regulations, but also to the terms of the agreements it undertakes. Being commercially participatory entails being commercially responsible. It means paying liabilities where and as they become due in accordance with law and the principles of equity.

Tom Schlosser’s New Paper on Klamath River Hydroelectric Restoration Agreements

Matthew L.M. Fletcher

Tom Schlosse’rs new article was published by the Washington Journal of Environmental Law & Policy: “Dewatering Trust Responsibility: The New Klamath River Hydroelectric and Restoration Agreements.” You can download it here.

Here is the abstract:

In order to protect Indian property rights to water and fish that Indians rely on for subsistence and moderate income, the Interior Department Solicitor has construed federal statutes and case law to conclude that the Department must restrict irrigation in the Klamath River Basin of Oregon and Northern California. Draft legislation, prescribed by the February 18, 2010 Klamath River Hydroelectric Agreement and the Klamath Basin Restoration Agreement, would release the United States from its trust duty to protect the rights of Indian tribes in the Klamath River Basin. The agreements will also prolong the Clean Water Act Section 401 application process to prevent the Federal Energy Regulatory Commission from issuing a properly-conditioned license for dams in the Klamath River that will protect the passage of vital fish populations. This article argues that the agreements prioritize the water rights of non-Indian irrigation districts and utility customers over first-in-time Indian water and fishing rights.

Christine Zuni Cruz on Shadow Scholarship and Indian Law

Matthew L.M. Fletcher

Christine Zuni Cruz has posted her great paper, “ Shadow War Scholarship, Indigenous Legal Tradition, and Modern Law in Indian Country “, published in the Tribal Law Journal, on SSRN.

Here is the abstract:

This article documents the purposes and reasons for the development of the Tribal Law Journal, the University of New Mexico School of Law’s electronic journal created to promote scholarship on tribal law and the Indigenous legal tradition. It discusses the use of the internet for the work of the journal and of the need to increase an understanding and awareness of the law of Indigenous peoples. The diversity of indigenous peoples, in and of itself, requires unique approaches to the discussion of tribal law. The article considers how the Zapatista Movement in Chiapas utilized the internet. The Zapatista’s engagement of the Mexican government has been described as a “shadow war” for its engagement in conflict in “symbolic rather than real terms.” This early exploitation of the internet allowed the Zapatista to get their position across without having to rely on gatekeepers. The article describes how the Journal follows the same strategy in respect to tribal law. The important developments occurring in law at the tribal level require Indigenous Peoples’ awareness of trends among Indigenous peoples in the United States and across the world. Electronic communication has significantly facilitated this. The article concludes with a discussion of the limitations that challenge electronic communication among Indigenous Peoples.

Book Review of Atwood’s “Children, Tribes, and States”

Matthew L.M. Fletcher2 Comments

Here, from the Law & Politics Book Review (h/t to Legal History Blog). An excerpt:

In CHILDREN, TRIBES, AND STATES: ADOPTION AND CUSTODY CONFLICTS OVER AMERICAN INDIAN CHILDREN, Barbara Ann Atwood provides a thorough and compelling discussion of US statutory law, case law and policy, and their effects upon American Indian tribal law, policy and culture in general, and specifically their dual application to American Indian children. In this well-researched treatise, Atwood painstakingly documents and analyzes over 200 years of US federal and state child welfare policy and procedure regulating the custody placement and adoption of the American Indian child.

Professor Atwood has been publishing scholarly legal articles in the subject-matter area of American Indian family law and policy for over 20 years. Although she has included portions of her prior works in this book, the articles are in substantially revised form – this book is far from a mere “re-hash” or compilation of her prior work.

From the book’s first sentence in the “Introduction” – “When sovereigns compete to determine the interests of children, fundamental questions of power and legitimacy inevitably arise” –Atwood sets the clear tone of the book. She confirms an underlying premise that “American law should respect the distinct worldviews held by Indian tribes and their richly diverse approaches to community, family, parenting, child welfare, and adoption [which are all divergent from US norms].” Early on, Atwood states that the Indian Child Welfare Act of 1978 “compels respect for Native culture within the United States.” Thereby she signals her plan to provide a well-documented critique of US federal, state and American Indian tribal child welfare law and policy. From chapter to chapter, this goal is met.

 

2011 Indigenous Law Journal Call for Papers

Matthew L.M. Fletcher

Here:

Call for Submissions Fall 2011.

Deadline: September 30, 2011

The Indigenous Law Journal is dedicated to developing dialogue and scholarship in the field of Indigenous legal issues, both within Canada and internationally. We encourage submissions from all perspectives on these issues. Our central concerns are Indigenous legal systems and the interaction of other legal systems with Indigenous peoples.

We are the only legal periodical in Canada with this focus. We welcome the addition of your voice to the discussion.

Submissions must conform to the Canadian Guide to Uniform Legal Citation, 7th Edition.

For full details on the submissions process and student awards, please see: www.indigenouslawjournal.org
or send submissions to submissions.ilj@utoronto.ca

Continue reading →

Student Note on Meyer & Assoc. v. Coushatta Tribe

Matthew L.M. Fletcher

The Louisiana Law Review has published “Denying Sovereignty: The Louisiana Supreme Court’s Rejection of the Tribal Exhaustion Doctrine” by Carey Austin Holliday.

We posted this opinion a few years back.

Here is the abstract:

In its recent decision in Meyer & Associates, Inc. v. Coushatta Tribe of Louisiana, the Louisiana Supreme Court declined to require the application of the Tribal Exhaustion Doctrine (the “Doctrine”) in Louisiana state district courts. The Doctrine is a federal jurisprudential rule that applies when a tribal court has a claim of jurisdiction over a dispute. It requires federal courts to abstain from hearing the case until the tribal court has determined whether it can properly retain jurisdiction over the matter. The effect of this ruling by the Louisiana Supreme Court is that tribal courts will be denied the ability, in many instances, to determine questions related to tribal sovereign immunity. The United States Supreme Court has not yet had the occasion to determine whether the Doctrine is required of state courts, and several states have reached different conclusions as to whether their courts will be required to apply the Doctrine. Upon further examination of federal common law, as well as strong prudential considerations in favor of the Doctrine’s application, it becomes apparent that the Louisiana Supreme Court erred in declining to apply the Doctrine to Louisiana state district courts.

John Wunder on Indians in the Declaration of Independence

Matthew L.M. Fletcher

Here:

Merciless Indian Savages

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.