Scholarship

Kyle Whyte on Environmental Justice and Indigenous Tourism

Matthew L.M. Fletcher

Kyle Whyte has posted his paper, “An Environmental Justice Framework for Indigenous Tourism,” published in the Journal of Environmental Philosophy.

Here is the abstract:

Environmental tourism is a growing practice in indigenous communities worldwide. As members of indigenous communities, what environmental justice framework should we use to evaluate these practices? I argue that, while some of the most relevant and commonly discussed norms are fair compensation and participative justice, we should also follow Robert Figueroa’s claim that “recognition justice” is relevant for environmental justice. I claim that from Figueroa’s analysis there is a “norm of direct participation,” which requires all environmental tourism practices to feature a forum for meaningful representation and consideration. This claim motivates a distinction between practices that should be termed “mutually advantageous exploitation” and those that should be termed “environmental coalition development.” We need to ask ourselves whether we should continue to tolerate mutually advantageous exploitation and how we can increase the number of practices that develop coalitions.

Brian Lewis on U.S./Canadian Law on Indian Status

Matthew L.M. Fletcher2 Comments

Brian Lewis will soon publish his paper, “So Close, Yet So Far Away: A Comparative Analysis of Indian Status in Canada and the United States,” in the Willamette International Law Journal.

Here it is: B.Lewis_U.S._Canada_Indian_Status

Sixth Edition of Cases and Materials on Federal Indian Law Available Soon

Matthew L.M. Fletcher

David Getches, Charles Wilkinson, Robert Williams, and Matthew Fletcher are pleased to announce that the Sixth edition of Cases and Materials on Federal Indian Law will be available from West on March 25, 2011.

West’s webpage for the book is here.

You can see a preview of the dedication, preface, summary of contents, and table of contents on SSRN here.

Our webcast on “Teaching the Future of Indian Law” is here.

 

Katherine Florey on Rule 19 after Pimentel

Matthew L.M. Fletcher

Katherine Florey has published “Making Sovereigns Indispensable: Pimentel and the Evolution of Rule 19” in the UCLA Law Review.

Here is the abstract:

Though Federal Rule of Civil Procedure 19 might appear to be one of the more esoteric of the Federal Rules, it is actually an exceptionally powerful device: It permits defendants to obtain dismissal of cases over which the court has valid jurisdiction, even when no other forum exists in which the action can be brought.  This Article argues that, while Rule 19 was originally intended to facilitate the consolidation of litigation by requiring joinder of absent parties, it has evolved in an important subset of cases to serve a nearly opposite purpose.  That is, in many cases in which a party may be affected by the litigation but cannot be joined because it is a sovereign possessing immunity from suit, courts have developed a near-categorical rule that the entire case may be dismissed—even if that means that the plaintiff is permanently denied a remedy.  Further, the U.S. Supreme Court recently appeared to endorse this approach, holding that Philippine human rights victims’ claims to their former regime’s assets could not be litigated because two Philippine governmental entities could not be joined in the case.

In such situations, this Article argues, Rule 19 functions almost as an abstention doctrine, permitting courts to avoid decisions in cases that may raise sensitive intergovernmental or foreign-relations issues.  This use of the rule is problematic for several reasons.  It is not authorized by (or even discussed in) Rule 19’s text, and it appears at odds with the original purpose of Rule 19: to promote consolidated litigation of disputes, not to dispose of them entirely.  Further, it permits the interests of the plaintiff—and the public interest in resolution of disputes—to be systematically slighted.  Thus, although there may be situations in which an absent party’s sovereign immunity should be taken into account, courts have gone too far in their solicitude for absent sovereigns.  This Article explores how this phenomenon has evolved and suggests ways in which courts’ analysis of Rule 19 factors should be modified to take account of the rule’s fundamental purposes

New Paper on the Tribal Law and Order Act

Matthew L.M. Fletcher

Gideon Hart has posted his paper, “A Crisis in Indian Country: An Analysis of the Tribal Law and Order Act of 2010,” on SSRN. It was published in the Regent University Law Review.

The abstract:

Crime and violence have long been a serious problem in Indian Country. In recent years, though, the extraordinary levels of gang activity and high rates of sexual violence against Native American women have received a large amount of media attention. Responding to this problem, Congress passed the Tribal Law and Order Act of 2010. Through this legislation, Congress seeks to lower the rates of crime in Indian Country, particularly with regard to crimes committed against Native American women; the Act significantly increases the resources and authority of federal prosecutors and agencies in Indian Country and increases the sentencing authority of tribal courts.

This Article considers the major provisions of this landmark Act and concludes that it is an important piece of legislation that could potentially have profound effects in many parts of Indian Country. Although the Act was widely supported, however, this Article argues it does not do enough and is instead only a short-term remedy to the problems facing Indian Country. The Article proposes several pieces of legislation that would provide long-term solutions, including increasing the sentencing authority of tribal courts and legislatively overturning the jurisdictional limitations imposed on tribal courts by the United States Supreme Court in Oliphant v. Suquamish Indian Tribe. Both of these major reforms could be used as tools to increase the status and skill of tribal courts, eventually making them a much more equal third sovereign.

Richard Pomp on the Indian Commerce Clause and State Taxation

Matthew L.M. Fletcher

Richard Pomp’s incredible opus, “The Unfilled Promise of the Indian Commerce Clause and State Taxation,” has been published in the Tax Lawyer.

Here is the pdf: Richard Pomp Indian Commerce Clause Article

Robert Miller & Micheline D’Angelis on “Brazil, Indigenous Peoples, and the International Law of Discovery”

Ann Tweedy1 Comment

Miller and D’Angelis have posted their article on SSRN. Here’s the link.

Gabe Galanda on Arbitration and Indian Country Disputes

Matthew L.M. Fletcher

Gabriel Galanda has published, “Arbitration in Indian Country: Taking the Long View,” in the Dispute Resolution Journal.

Here is a pdf: Arbitration in Indian Country

New Book on Navajo Tribal Labor Relations

Matthew L.M. Fletcher

David Kamper has published “The Work of Sovereignty: Tribal Labor Relations and Self-Determination at the Navajo Nation.” Here is the book’s website.

And the description:

Who is shaping the future of economic development in Indian Country? Who has a say in tribal economic growth and who benefits? What role do American Indian workers play in shaping how tribal economies and enterprises work? What would it mean to conceive of indigenous self-determination from the vantage point of work and workers? The Work of Sovereignty addresses these vital questions. It explores the political, economic, and cultural forces that structure and influence indigenous economic development, giving special attention to the perspectives and priorities of the indigenous working people who build tribal futures with their everyday labor. Kamper argues for the importance of recognizing tribal labor relations as a factor in indigenous economic enterprises from gaming to health care and beyond. Although most research on tribal sovereignty and economic development focuses on legal theory and governmental operations, The Work of Sovereignty centers on the people who make sovereignty work. It presents a thoughtful, in-depth look at the ways labor relations play out in Indian Country, how tribal employees view their relationships with their bosses and tribal enterprises, and how this view connects to their enactment of indigenous self-determination.

Excellent New Scholarship: Richard Pomp’s “The Unfulfilled Promise of the Indian Commerce Clause and State Taxation”

Matthew L.M. Fletcher

Richard Pomp has published his mammoth article in the ABA’s “The Tax Lawyer.” A short description of this paper is here. If you are a member of the ABA taxation section, you can get the whole thing here.

An excerpt:

This Article is an expanded version of luncheon remarks delivered at a symposium on the Commerce Clause at Georgetown Law School. A few things became clear after my address on the Indian Commerce Clause and state taxation. Many people at the Conference had only a faint memory that such a clause even existed. To most state tax practitioners and academics, “the Commerce Clause” meant the Interstate Commerce Clause and, perhaps secondarily, the Foreign Commerce Clause, but certainly not the Indian Commerce Clause.

True, a small group of “Indian law” insiders has long existed. These specialists have traditionally serviced tribes endowed with natural resources. More recently, revenue generated across the country from Indian gaming, hotels, restaurants, manufacturing, industrial parks, gas stations, cement factories, timber operations, smokeshops, or sports franchises has created legal work for firms that traditionally did not practice Indian law.

This new group of practitioners has quickly learned what the more experienced firms have long known: the issues raised by the taxation of Indians, the tribes, and those doing business with them are sui generis—and complicated, even by tax standards. To be sure, state tax lawyers are used to multijurisdictional issues. Taxes are levied by sewer, water, school, and transit districts; cities; counties; states; and the national government—tribal taxes would seem to add merely one more level.

Although comforting, this view would be misleading. Indian taxation drags lawyers into areas outside their normal comfort zone. Practitioners need to master treaties between the federal government and the tribes; state enabling acts; numerous Indian-specific statutes and executive orders that often reflect polar swings in Congressional policy; special Indian canons of construction; the unique patchwork pattern of land ownership on reservations; and concepts like “Indian sovereignty” that serve as a ubiquitous, amorphous, and malleable backdrop in many cases. Bread-and-butter issues for state tax lawyers—like apportionment and discrimination—take on new meanings. The Indian tax cases tolerate results that would violate the Interstate Commerce Clause. The formative Supreme Court cases on Indian taxation often reflect the composition of the bench and sympathies (or lack thereof) of individual justices for the Indians. Add to this the difficulty of obtaining up-to-date information on tribal tax codes, and the result is a labyrinth of unpredictability.

While the topic of my conference presentation and hence the subject of this Article is the Indian Commerce Clause and state taxation—and not a treatise on all aspects of state taxation (and nothing on federal taxation)—I would disserve the reader by not straying a bit afield. To cut to the chase, the Court has emasculated and denigrated the Indian Commerce Clause, preventing implementation of the Founders’ vision. Readers would have every right to feel that slogging their way through this lengthy Article was not worth the effort if that were the only message at the end of the journey. And so, with the encouragement of the conference organizers and journal editors, I have interpreted my charge broadly to sketch the contours of other Indian tax doctrines so that the reader will have a feel for the signposts and boundaries. I have focused on a selection of prominent U.S. Supreme Court cases, mostly involving state taxation; many more could have been discussed. My goal is not to be exhaustive (or exhausting), but rather suggestive and illustrative.

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