Scholarship – Page 127

“American Indian Tribal Law” on SSRN

February 7, 2011Matthew L.M. Fletcher7 Comments

My book — “American Indian Tribal Law” — soon will be published by Aspen as part of the Aspen Elective Series. This is the first law student-oriented casebook on tribal law.

I have posted the introduction, table of contents, table of cases, and the index on SSRN. Please take a look. You can download the pdf here.

Here is a description of the book:

“American Indian Tribal Law” is the first casebook for law students to survey the field of laws and cases generated by American Indian tribes. There are 565 federally recognized Indian tribes in the United States as of this writing. Each Indian nation has the authority, often expressed in an organic document such as a tribal constitution or a treaty with the United States, to legislate for the general welfare of the tribe, its people, and its land. Tribal ordinances and resolutions often are codified into tribal codes and published in book form and on the Internet.

American Indian tribal courts decide thousands of cases daily, with misdemeanor criminal cases, child welfare, and tribal administrative law cases constituting the large portion of tribal court dockets. Some tribal courts, such as those of the Navajo Nation, handle more than 100,000 cases each year, while other tribal courts handle only a very few cases. Many tribal courts span the full panoply of subject areas, from criminal to civil to probate to divorce to environmental law; others handle only a select few subject areas, such as tribal conservation courts, which adjudicate disputes involving tribal treaty fishing and hunting rights. The variety of tribal court disputes is endless.

Indian country is ready for a comprehensive set of materials on what some academics and practitioners have called the ‘‘real Indian law’’—the law of Indian nations and tribal courts. It is a new field, and scholarship on the subject has taken off only in the past few years. These materials are intended to assist students in navigating tribal courts and other indigenous dispute resolution forums, and how to otherwise practice law in Indian country. Students need to learn that nearly all tribal jurisdictions can and do apply their own laws, not the laws of the United States or state law.

[The materials that form this submission are the introduction and acknowledgments, the table of contents, the table of cases, and the index.]

Kate Fort on The New Laches and the Iroquois Land Claims

February 5, 2011February 5, 2011Matthew L.M. Fletcher1 Comment

Kathryn Fort has posted a draft of her paper, Disruption and Impossibility: New Laches and the Unfortunate Resolution of the Iroquois Land Claims in Federal Court, forthcoming in the Wyoming Law Review as part of an Indian law symposium, on SSRN.

Here is the abstract:

That the law changes over time is no secret. That the law changes based on the parties involved is less obvious, but still no secret. In the case of the Haudenosaunee land claims cases, however, the law shifted dramatically and quickly based entirely on the identity of the parties. In less than five years, the federal appellate courts changed the law so drastically to all but end more than thirty years of modern litigation, reversing years of relative fairness at the district court level. These actions required a fundamental shift in the law of equity: the creation of a new equitable defense for governments against Indian land claims. How the courts accomplished so much in such a short amount of time requires a close reading of the cases and a few logical leaps.

The first part of this article will give a brief history of the New York land claims, focusing on the Oneida Indian Nation and the Cayuga Indian Nation of New York. While the tribes have been fighting the status of this land since the original agreements were signed in the late eighteenth and early nineteenth century, this article looks to the modern era of land claims in the federal courts. The second part of this article will review how a decision in the Oneida claims case directly informed City of Sherrill v. Oneida Indian Nation. The third part will focus on the Cayuga Nation line of cases and how Cayuga Indian Nation of New York v. Pataki changed the fundamental understanding of the equitable defense of laches into a new defense used to defeat tribal land claims. Finally, the fourth part of this article will look closely at the most recent loss, Oneida Indian Nation v. County of Oneida, where the court admits the creation of a new equitable defense. This defense, identified as “new laches” or “Indian law laches” is a defense that can prevent even the bringing of a land claim in the courts. The defense is no longer traditional laches, but rather an equitable defense that follows none of the rules of equity, and exists only in federal Indian law.

Now Available: “Tribal Constitutionalism” by Kirsty Gover

February 1, 2011Matthew L.M. Fletcher

Here is the flyer: Tribal Constitutionalism – Flyer

From the website:

Description

Recognized tribes are increasingly prominent players in settler state governance, but in the wide-ranging debates about tribal self-governance, little has been said about tribal self-constitution. Who are the members of tribes, and how are they chosen? Tribes in Canada, Australia, New Zealand and the United States are now obliged to adopt written constitutions as a condition of recognition, and to specify the criteria used to select members. Tribal Constitutionalism presents findings from a comparative study of nearly eight hundred current and historic tribal constitutions, most of which are not in the public domain.

Kirsty Gover examines the strategies adopted by tribes and states to deal with the new legal distinction between indigenous people (defined by settler governments) and tribal members (defined by tribal governments). She highlights the important fact that the two categories are imperfectly aligned. Many indigenous persons are not tribal members, and some tribal members are not legally indigenous. Should legal indigenous status be limited to persons enrolled in recognized tribes? What is to be done about the large and growing proportion of indigenous peoples who are not enrolled in a tribe, and do not live near their tribal territories? This book approaches these complex questions head-on.

Using tribal membership criteria as a starting point, this book provides a critical analysis of current political and sociolegal theories of tribalism and indigeneity, and draws on legal doctrine, policy, demographic data and tribal practice to provide a comparative evaluation of tribal membership governance in the western settler states.

Continue reading →

Comment on Applicability of the Full Faith & Credit Act to Tribal Judgments Published in California Law Review

January 31, 2011Ann Tweedy

Craig Smith has published a comment arguing that tribal judgments should be afforded Full Faith and Credit. The cite is 98 Cal. L. Rev. 1393 (2010). A one paragraph summary from the article is below:
“In this Comment, I attempt to answer some of those lingering questions by revisiting the claim that tribes should be afforded full faith and credit under the Full Faith and Credit Act. By looking to the Indian Law canons, the unique precedent of Puerto Rico, and the present reality of federal-tribal relations, I conclude that the Act does mandate full faith and credit for tribes. Rather than looking to whether Congress intended to include tribes at the moment it amended the Full Faith and Credit Act to include territories and countries under the jurisdiction of the United States, I arrive at my conclusion by following the approach of the First Circuit in the context of Puerto Rico and asking: Would Congress have intended to include tribes in § 1738 if it were aware of the current status of federally recognized Indian tribes today?”

Reo and Whyte on Indian Hunting and Traditional Ecological Knowledge

January 28, 2011Matthew L.M. Fletcher

Nicholas Reo and Kyle Whyte have posted their paper, “Hunting and Morality as Elements of Traditional Ecological Knowledge,” on SSRN. Here is the abstract:

The legitimacy of contemporary subsistence hunting practices of North American Indians has been questioned because of hunters’ use of modern technologies and integration of wage-based and subsistence livelihoods. The legitimacy of tribal traditional ecological knowledge (TEK) has been questioned on similar grounds and used as justification for ignoring tribal perspectives on critical natural resource conservation and development issues. This paper examines hunting on the Lac du Flambeau Indian Reservation in North Central Wisconsin, USA. The study documents contemporary hunting practices and the traditional moral code that informs hunting-related behaviors and judgments. Subsistence hunting is framed in the context of TEK and attention focused on the interplay between TEK’s practical and moral dimensions. Results indicate the importance of traditional moral codes in guiding a community’s contemporary hunting practices and the inseparability and interdependence of epistemological, practical, and ethical dimensions of TEK.

Exchange between Michael Brown and Carpenter/Katyal/Riley on “In Defense of Property”

January 24, 2011Matthew L.M. Fletcher1 Comment

The International Journal of Cultural Property has published Michael Brown’s response to the Yale Law Journal article, “In Defense of Property,” by Kristen Carpenter, Sonia Katyal, and Angela Riley, and their surreply.

The Yale article is here, and the exchange is here.