Scholarship

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.

Continue reading →

New Scholarship on Tribal Sovereignty and Pesticide Programs

Matthew L.M. Fletcher

Jane Kloeckner has posted her paper, “Hold on to Tribal Sovereignty: Establishing Tribal Pesticide Programs that Recognize Inherent Tribal Authority and Promote Federal/Tribal Partnerships,” on SSRN.

Here is the abstract:

The partnership between the United States and Indian Nations (tribes) in regulating pesticide pollution in Indian country and governed under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA or Pesticide Law) has become dysfunctional due to weak provisions in FIFRA and pesticide regulations and guidance from the United States Environmental Protection Agency (EPA), the federal agency authorized to implement FIFIA. The tribal/federal partnership under FIFRA is overwhelmingly federal, while the role for tribal governments is limited. In addition, long-standing EPA policy choices have resulted in inadequate environmental protection against potential misuse of pesticides in Indian country. For example, EPA has not interpreted FIFRA as authorizing Tribal governments to be the primary enforcement authority. Except for eight Indian reservations, pesticide applicators cannot be certified in Indian country to apply restricted use pesticides. Tribal governments should be eligible to implement pesticide control programs as co-regulators in partnership with EPA. Co-regulator pesticide programs would be a good example of United States leadership in collaborative partnering with indigenous peoples for the broader international community.

The FIFRA reforms suggested in this paper recognize the appropriate level of federal oversight of tribal environmental decisions affecting land use involving pesticides, a local decision with regional, national and international aspects. For example, Tribal Pesticide Programs would function best within the structure of a genuine tribal/federal partnership as described in this paper. As a foundation for a collaborative partnership, EPA should provide for tribal governments to be eligible for primary enforcement under FIFRA in Indian country. Also, EPA should provide continuing federal assistance, technical, administrative, and financial to tribal governments for building and maintaining tribal pesticide programs as tribal institutions. Furthermore, the co-regulator partnership must be flexible and ultimately, the federal government must oversee the tribal pesticide programs because of the complexities of tribal governance over tribal environmental institutions and because local, state, regional, tribal and international concerns over pesticide use sometimes conflict. Inside or outside Indian country, FIFRA and its regulations must support minimum federal standards that protect human health and the environment and a level playing field for pesticide users. Continue reading →

Lillian Aponte Miranda’s article “Indigenous Peoples as International Lawmakers” has been published

Ann Tweedy

She previously presented the article at MSU and several other places. The cite is 32 U. Penn. J. Int’l L. 203 (2010). Here’s the abstract:

“Through a transnational social movement that has capitalized upon the politics of difference, local communities of indigenous peoples have significantly participated in the construction of a distinctive international legal identity and derivative framework of human rights. The ability of a traditionally marginalized community to succeed in strategically facilitating the recognition of an international legal identity and substantive reconstitution of human rights precepts is a unique phenomenon that merits attention. To that end, this Article addresses the role of indigenous peoples in international human rights lawmaking. It argues that indigenous peoples have played a significant role in changing the legal landscape of human rights in ways that are not necessarily captured by mainstream accounts of non-state actor participation *204 in international norm-building and decision-making. It further proposes, however, that the participation of indigenous peoples in international human rights lawmaking continues to operate within certain discursive and structural limitations. While indigenous peoples’ participation may serve to lend greater legitimacy to international human rights law and lawmaking processes, such participation may not effectively deliver material gains. As a result, continued advocacy on behalf of indigenous peoples must acknowledge and respond to these challenges.”

Peter Vicaire on A Comparative Analysis of Indigenous Rights in a North American Constitutional Context

Matthew L.M. Fletcher1 Comment

Peter Vicaire, our 2010-2011 Center Fellow, has posted his paper, “Two Roads Diverged in a Wood: A Comparative Analysis of Indigenous Rights in a North American Constitutional Context,” on SSRN.

Here is the abstract:

Fueled by contrasting political backdrops, Indigenous tribes on opposite sides of what has become the Canadian/American border have traveled upon very different trajectories, receiving dissimilar treatment from the respective governments that have laid claim to their lands. Tribes in Canada have retained significantly less rights as Indigenous peoples than have tribes in the United States.

Pace Environmental Law Review Symposium on Indigenous Rights

Kate Fort

Tribal-State Relations
John Dieffenbacher-Krall
PDF

Brian Lewis’ article on DOI regulations under IGRA published in Thomas M. Cooley Journal of Practical and Clinical Law

Ann Tweedy

The article is called “A Day Late and a Dollar Short: Section 2719 of the Indian Gaming Regulatory Act, the Interpretation of its Exceptions and the Part 292 Regulations,” 12 T.M. Cooley J. Prac. & Clinical L. 147 (2010), and concerns regulations about which lands tribes may operate casinos on. Here’s a one paragraph excerpt from the Introduction:

“The DOI’s Regulations, which impose added burdens on tribes and narrow the exceptions, impair the settled expectations of tribes and businesses. Moreover, this impairment may persist because the Supreme Court’s holding in Nat’l Cable & Telecomms. Ass’n v. Brand X Internet Servs., requires courts to defer to agencies, despite having been the first to interpret and define statutes. However, because of the difference of circumstances, unlike in Brand X, the DOI’s interpretations should not be deferred to. Chevron deference, as applied in Brand X, may unconstitutionally reallocate authority from Article III to Article II. Lastly, the discipline of law and economics tells us that the Regulations’ changes and the majority’s opinion in Brand X promulgates an inefficient legal rule that may be-and should be-changed.”

UNM Natural Resources Journal Symposium Issue

Matthew L.M. Fletcher

The long list of articles from the symposium, titled “‘As If Equity Mattered’ in Natural Resources,” is here.

A few articles in particular would appear to be of particular interest:

The Virtual Reservation: Land Distribution, Natural Resource Access, and Equity on the Yurok Forest 341
Lynn Huntsinger & Lucy Diekmann

Tribal Justice and Property Rights: The Evolution of Winters v. United States 471
A. Dan Tarlock

Arvo Mikkanen on “The Federal Prosecution of Juveniles” in Indian Country

Matthew L.M. Fletcher2 Comments

Last summer, federal judicial nominee Arvo Mikkanen published “The Federal Prosecution of Juveniles” in a special issue of the United States Attorneys’ Bulletin on “Indian Tribal Matters.”

Here is that article: 2010 July – Federal Prosecution of Juveniles – Indian Tribal Matters.

Note on Inuits and Climate Change Published in Southeastern Environmental Law Journal

Ann Tweedy

Katherine King’s Note examining differing Inuit perspectives on climate change and the regulatory implications of these differing perspectives has been published. The article is called “Climate change and the Inuit: a melting of actions into a cloudy mess” and can be found at 17 Southeastern Envtl. L.J. 481 (2009).