Scholarship

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).

“American Indian Tribal Law” on SSRN

Matthew 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

Matthew 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

Matthew 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.