Scholarship

Article on native entitlements and formal equality published in Law & Society Review

Ann Tweedy

Courtenay W. Daum and Eric Ishiwata have published “From the Myth of Formal Equality to the Politics of Social Justice: Race and the Legal Attack on Native Entitlements” in Law & Society Review, 44 L. & Soc’y Rev. 843 (2010). Here’s the abstract:

“This article examines how the conservative legal movement’s successful count-ermobilization of the politics of rights enables U.S. Supreme Court outcomes that exacerbate racial and ethnic inequities while solidifying the privileged position of others in the name of equality. A comparison of two pivotal Supreme Court cases involving native entitlements–Morton v. Mancari (1974) and Rice v. Cayetano (2000)–illustrates how appeals to formal, as opposed to substantive, equality work in effect to support existing hierarchies. At the same time, the conservative legal movement’s success provides progressive social actors with opportunities to reframe the discourse. We suggest that a critical questioning of strategies predicated on appeals for equal rights may be necessary to advance the interests of native populations in the current environment, and we identify an alternative way of working for native interests, one that escapes the constraints of equality doctrine by appealing to broader claims of social justice.”

New Scholarship on American Indian Land Reform

Matthew L.M. Fletcher2 Comments

Richael Faithful has posted “An Idea of American Indian Land Justice: Examining Native Land Liberation in the New Progressive Era” on SSRN, forthcoming in the National Lawyers Guild Law Review. Here is the abstract:

This article is inspired by Professor Robert Odawi Porter’s remarks during the 2009 D.C. Federal Indian Bar conference in which he outlined a seemingly radical proposal for “land liberation” for American Indian tribes – the abandonment of United States trusteeship over tribal land, and return of title and associated rights to numerous tribes who have lost their land due to nefarious governmental policies and bad deals. In an effort to bridge Porter’s visionary legal viewpoint with renowned economist and philosopher, Amartya Sen’s recent visionary contribution on justice, An Idea of American Indian Land Justice, helps revive an Indian law, critical studies tradition calling for greater tribal sovereignty, but in a new light, however, that examines a global political climate that embraces the human rights mantle to one degree or another. This article tries to illuminate two liberationist outlooks to scrutinize a legal proposal by a leading mind in Indian law that also has wide-reaching implications for other movements, struggles, and communities across the world.

New Scholarship on Tribal Economic Development (and Solar Power)

Matthew L.M. Fletcher1 Comment

Ryan David Dreveskract will publish his article, “Native Nation Economic Development Via the Implementation of Solar Projects: How to Make it Work,” in the Washington & Lee Law Review (article here: Dreveskracht Article). It is also accessible on SSRN here. Here is the abstract:

This Article examines the issues surrounding sustainable economic development in American Indian country via the implementation of solar energy projects. Section II addresses Native American economic development, generally, focusing on Indian gaming, practical sovereignty, capable institutions, and cultural match. Section III discusses solar energy projects: the benefits of solar energy when compared to other types of energy production; the ways that these projects will benefit Indian country, specifically; and the rationale behind implementing solar energy projects as a means to sustainable economic development in Indian country. In arguing for the implementation of solar energy projects, Section III of the Article also provides instruction for the realization of these projects by tribes and state/federal regulatory/legislative bodies. Finally, having argued for and laid out a framework for economic development via solar projects, Section IV offers concluding remarks.

Colorado Law Review Symposium: The Next Great Generation of Indian Law Judges

Matthew L.M. Fletcher

The Colorado Law Review has published a symposium issue on “The Next Great Generation of Indian Law Judges.” Here is the line-up:

Contents

Keynote Address at the University of Colorado
Law Review Symposium: “The Next Great Generation
of American Indian Law Judges”
Kevin K. Washburn

Articles

Resisting Federal Courts on Tribal Jurisdiction
Matthew L.M. Fletcher

In Theory, In Practice: Judging State Jurisdiction
in Indian Country
Carole Goldberg

Separate But Unequal: The Federal Criminal
Justice System in Indian Country
Troy A. Eid
Carrie Covington Doyle

Finding the Indian Child Welfare Act in
Unexpected Places: Applicability in
Private Non-Parent Custody Actions
Jill E. Tompkins

Bench Book

Tribal Civil Judicial Jurisdiction Over Nonmembers:
A Practical Guide for Judges
Sarah Krakoff

 

Pamela Karlan Review of Laughlin McDonald’s Book to Be Published in Yale Law Journal

Matthew L.M. Fletcher

Pamela Karlan has posted the abstract of her forthcoming review of Laughlin McDonald’s book “American Indians and the Fight for Equal Voting Rights” on SSRN (link here). Here is the abstract:

This review essay discusses Laughlin McDonald’s book, American Indians and the Fight For Equal Voting Rights (2010), to explore questions of disenfranchisement, dilution, and constitutional design. McDonald examines the barriers to full political equality faced by Indians in communities in five Western states and describes litigation under the Voting Rights Act of 1965 attacking these barriers. In many ways, the Indian voting rights cases resemble the cases brought, often a generation earlier, by black citizens in the South and Latino citizens in the Southwest. But as McDonald explains, Indians occupy a distinctive status within the American political order. Indians are citizens not only of the United States and the state where they reside but often also (and particularly in those regions where they are most likely to bring voting rights claims) of a separate sovereign as well – their tribe. This fact has inflected both the history of Indian disenfranchisement and the course of litigation under the Voting Rights Act.

Part I describes the history of Indian disenfranchisement in light of their distinctive constitutional status. Indians’ exclusion from the political process reflected profound racism as pernicious and pervasive as the discrimination facing blacks in the South and Latinos in the Southwest. But it also involved complex constitutional and conceptual issues unique to Indians, who were excluded from citizenship, even after passage of the Fourteenth Amendment and who remained subject to distinct treatment even after citizenship was conferred. Part II then turns to the relatively recent vote dilution litigation that forms the heart of McDonald’s book. Indian voting rights cases have followed a clear path blazed by earlier cases involving blacks and Latinos. Nevertheless, themes related to Indians’ distinctive political status crop up within the litigation at various points. Finally, Part III looks beyond Indians’ claims under the Voting Rights Act to discuss issues related to internal tribal elections. Like other elections, these contests involve fundamental questions about enfranchisement and electoral design. Tribal answers to these questions sometimes depart dramatically from the rules governing federal, state, and local elections. I talk about two such departures, one related to voting by non-residents and the other related to nonequipopulous voting districts, to show how they that tie into ongoing debates extending far beyond Indian law.

New Book by Kaighn Smith on Labor and Employment Law in Indian Country

Matthew L.M. Fletcher2 Comments

This is such an exciting book, co-published by the Native American Rights Fund and Drummond Woodsum.

Labor and Employment Law in Indian Country (2011)

by Kaighn Smith, Jr.

Available in January, 2011. 

To pre-order, use the order form below. Books will be shipped in January, 2011. For further information, e-mail Ruth Wentzel at rwentzel@dwmlaw.com.

Drummond Woodsum is pleased to announce the publication of a new book by Kaighn Smith, Jr., published jointly with the firm and the Native American Rights Fund.

Labor and Employment Law in Indian Country provides a comprehensive overview of the law governing labor and employment relations in Indian country. This is a growing, controversial, and complex area of law, implicating fundamental principles of tribal sovereignty at every turn. Current and up-to-date, Labor and Employment Law in Indian Country is a must read for anyone involved in Indian affairs today.

The author, Drummond Woodsum attorney Kaighn Smith, Jr., has represented Indian tribes and tribal enterprises in labor and employment matters for over 15 years. He has assisted tribes in enacting, implementing, and defending some of the first comprehensive labor and employment laws in Indian country. Kaighn and his labor law colleagues at Drummond Woodsum have a nationwide practice, serving tribes in the labor and employment field.

Continue reading →

Cornell & Kalt on The Political Economy of American Indian Self-Determination

Matthew L.M. Fletcher1 Comment

Highly recommended reading!!!!

RWP10-043_Cornell_Kalt – Support for Self Determination November 2010

New Governor Selects New Mexico Indian Affairs Review Team

Matthew L.M. Fletcher

Here is the article. Congrats to the team.

One of those selected, Brian Lewis, has just published an article on off-reservation gaming in the Thomas Cooley Journal of Practical and Clinical Law. The article is titled, “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.”

Here it is: Lewis Gaming Article.

New Scholarship on Indigenous Traditional Knowledge and Intellectual Property Law

Matthew L.M. Fletcher

Ikechi Mgbeoji has posted “Making Space for Grandma: The Emancipation of Traditional Knowledge and the Dominance of Western-Style Intellectual Property Rights Regimes” on SSRN.

Here is the abstract:

The question that this paper seeks to tackle is whether the patent system is of any relevance or pertinence to the search for mechanisms for the protection of traditional knowledge (TK) of the medicinal uses of biodiversity possessed by traditional knowledge practitioners across different parts of the world. Allegations of biopiracy have been made against researchers, bioprospectors and other entities actively scouring indigenous peoples’ cornucopia for the next miracle drug. The objective of this paper will be achieved through two main approaches. The first analyzes the historical and philosophical roots of the divide between dominant regimes of intellectual property rights (IPRs) and Traditional Knowledge (TK). As already noted, the patent system is used as the framework for the analysis. The second suggests ways and methodologies by which the divide may be bridged. The analysis concedes that the gaps are quite profound but nonetheless offer policy-makers some leeway and flexibility to protect TK by borrowing some of the features of dominant IPRs regimes. The approach is anchored on a pragmatic acceptance of the fact that dominant regimes are too well-established to be displaced by well-meaning but weak protagonists for purer versions of TK-models.

New Paper on Indigenous Customary Law and Water Resource Management

Matthew L.M. Fletcher

Donna Craig and Elizabeth Gachenga have published “The Recognition of Indigenous Customary Law and Water Resource Management” in Water Law; also posted on SSRN. Article here: Indigenous Customary Law in Water Resource Management

Here is the abstract:

There is an inextricable link between indigenous rights, human rights and sustainable development. In this paper we consider the role of indigenous customary law in the sustainable management of water resources. We propose legal pluralism as the more effective context for recognition of indigenous customary law for sustainable water resource management as opposed to functional recognition or other minimalist forms of recognition.