Scholarship – Page 129

New Scholarship on “Equitable Obligations of Anthropologists”

November 18, 2010November 18, 2010Matthew L.M. Fletcher1 Comment

Shiori Shakuto has posted “Equitable Obligations of Anthropologists” on SSRN. The abstract:

As most socio-cultural anthropologists participate in their subjects’ everyday lives during their fieldwork, they often form close, personal relationships with their subjects. While anthropologists may become ‘close friends’ with their subjects, they maintain their identities as ‘employees’ of a number of different organisations, such as universities, governments, and private firms. The dual identities of social anthropologists may potentially lead to a conflict between their professional goals and their ethical obligations to their subjects. Anthropologists have the power to adversely affect the interests of their subjects by serving their own interests or interests of their employers. The subjects of anthropological study are consequently ‘vulnerable’ to anthropologists taking advantage of their relationships. Given the subjects’ vulnerability to an anthropologist’s conflict of interests, this thesis will explore whether equity offers protection to them. The question will be considered in the light of the equitable principles as practised in Australia. My analysis will focus on Australian anthropologists who engage with indigenous Australians on a long-term and close personal basis. Amongst the available equitable causes of action, this thesis will examine the application of two doctrines suggested by the High Court in Western Australia v. Ward as having the possibility of affording some protection of non-land related rights of indigenous people, that is: (1) fiduciary obligations and (2) duty of confidentiality.

Ray Austin & Howard Brown on the Navajo Preference in Employment Statute

November 18, 2010Matthew L.M. Fletcher3 Comments

Howard L. Brown & Hon. Raymond Austin will soon publish “The Twenty-Fifth Anniversary of the Navajo Preference in Employment Act” in the New Mexico Law Review. Here is a sneak preview: Navajo Preference in EmploymentAct, 40 NMLR 17 (2010).

A very, very timely and important article, especially given the recent Ninth Circuit order and remand in EEOC v. Peabody Coal.

Raeder on Orenstein on Character Evidence in Indian Country Rape Cases

November 17, 2010Matthew L.M. Fletcher

Interesting discussion from Jotwell on this paper (we posted it a while back here), discussed by Myrna Raeder:

Aviva Orenstein, Propensity or Stereotype?: A Misguided Evidence Experiment in Indian Country, 19 Cornell J. Law & Pub. Pol. 173 (2009), available at SSRN.

An excerpt (or two):

Changing evidentiary policy to make it easier to convict rapists and child abusers has been high on the agenda of many feminists who have decried the difficulty of holding such perpetrators accountable, even when they commit serial crimes. In 1994, in a well documented trade, Congress adopted Federal Rules of Evidence 413-415 as the quid pro quo for securing the deciding vote necessary to pass the then pending Violent Crime Control Act. Rules 413-414 specifically permit propensity evidence in sexual assault and child molestation cases. Professor Aviva Orenstein investigates how these rules have been (mis)applied in federal court. Her thought-provoking essay decries the disproportionate use of the rules against Indian defendants, and suggests the repeated presence of negatively stereotyped Indian defendants may actually help perpetuate the myth that rapists are easily identified “others,” an attitude that makes acquaintance rapes incredibly difficult to prove. She also suggests that stereotyping reinforces the propensity evidence and may lead judges to more willingly accept character evidence beyond sex crimes.

***

What I particularly appreciated about the article was that Orenstein did not downplay that the victims in these cases are Indian women and children who are more likely to be raped or sexually assaulted than other females in the United States. She explains that Indian women also face stereotyping that can lead to discounting their testimony, and discusses their no-win dilemma that can result in their complaints further stereotyping their entire culture. Importantly, Orenstein suggests why propensity may harm victims. She cites reports implying prosecutors appear reluctant to bring charges in sexual assault cases arising on reservations, and argues that the propensity rules may furnish a convenient reason for prosecutors to refuse cases without evidence of prior sexual crimes.

Natelson/Kopel Respond to Balkin on “Commerce”

November 8, 2010November 6, 2010Matthew L.M. Fletcher

Here.

Of note, here is the part of the response directed toward the Indian Commerce Clause:

The Indian Intercourse Act. Plentiful Founding-Era evidence, including enactments of the Confederation Congress and state legislatures, show that “Commerce with the Indian tribes” referred to mercantile trade with the Indians and certain tightly related activities, such as the licensing of and control over the behavior of merchants.[19]

Balkin enlists the Indian Intercourse Act of 1790 as exemplifying a broad meaning of the Indian Commerce Clause. Because the 1790 act included some criminal provisions (as trade regulations often did), Balkin argues that the meaning of “commerce” extended far beyond trade.

The Indian Intercourse Act was adopted after the Constitution had been ratified, and, like the Sedition Act a few years later, is not necessarily a correct guide to public understanding of the Constitution at the time of ratification. However, if the act had been adopted pursuant to the commerce power, and before the holdouts of North Carolina and Rhode Island had ratified the Constitution, the act would help the Balkin thesis very little, for the law’s criminal provisions were typical of contemporaneous trade regulation-designed to protect trade by punishing merchants who entered Indian territory without authorization.[20]

In fact, however, the law was an exertion of the treaty power, not the commerce power. It was adopted on the recommendation of President Washington “for extending a trade to [the Indians] agreeably to the treaties of Hopewell.”[21] Several years ago, one of us discussed this background, including an explanation for why the law extended beyond the signatory tribes.[22]

Seattle U. Conference Materials — “Perspectives on Tribal Land Acquisitions in 2010: A Call to Action”

November 5, 2010Matthew L.M. Fletcher1 Comment

Eric Eberhard has generously provided the entire conference transcript and materials packet for the Seattle University Center for Indian Law and Policy conference, “Perspectives on Tribal Land Acquisitions in 2010: A Call to Action.”

These materials easily are the finest set of documents relating to the last 30 years of the law and politics of Interior trust acquisitions.

It’s an 862-page document, about 100 MB, but worth the time to download [if you want the CD, please contact Eric or others in the program]

Perspectives on Tribal Land Acquisition in 2010

Rick Collins on War Propaganda and Transparency

November 2, 2010Matthew L.M. Fletcher

Here is the link to Rick’s new paper, “Propaganda for War and Transparency,” published in the Denver University Law Review.

California Law Review Special Issue on Phil Frickey

October 27, 2010October 27, 2010Matthew L.M. Fletcher

The entire issue is available online here.

Forwarded message:
Issue in Honor of Professor Frickey

The August, 2010 issue of the California Law Review is dedicated to the lasting memory of Professor Philip P. Frickey — a towering scholar, beloved teacher, and inspiring mentor.

In April 2009, Boalt Hall hosted a festschrift honoring Professor Frickey, who had recently been diagnosed with terminal cancer. This issue collects essays presented at the event, as well as other contributions, including an annotated bibliography of Professor Frickey’s scholarly work; a tribute poem by a colleague; and a student comment that developed, with Professor Frickey’s guidance, in his Federal Indian Law course.

Most poignantly, this issue includes a posthumous Essay Professor Frickey authored in his final year. His wife, Mary Ann Bernard, provides a short introduction to the Essay, which takes the form of a prologue to a book he never finished.

In that Essay, the ever-humble Professor Frickey predicts that the legal academy will not remember his work in fifty years. We respectfully disagree, and hope this issue helps prove the contrary.

Journal of Court Innovation Special Issue on Tribal Justice

October 20, 2010Matthew L.M. Fletcher

ARTICLES

Full Faith and Credit and Cooperation Between State and Tribal Courts: Catching Up to the Law
By Paul Stenzel | PDF

Treaties, Tribal Courts, and Jurisdiction: The Treaty of Canandaigua and the Six Nations’ Sovereign Right to Exercise Criminal Jurisdiction
By Carrie E. Garrow | PDF

21st Century Indians: The Dilemma of Healing
By Carey N. Vicenti | PDF

The State of Pretrial Release Decision-Making in Tribal Jurisdictions: Closing the Knowledge Gap By John Clark | PDF

Tribal Probation: An Overview for Tribal Court Judges
By Kimberly A. Cobb and Tracy G. Mullins | PDF

INTERVIEWS

Introduction Reflections on Tribal Justice: Conversations with Native American Judges | PDF

Abby Abinanti, Chief Judge, Yurok Tribal Court, Klamath, California, and California Superior Court Commissioner | PDF

P.J. Herne, Chief Judge, St. Regis Mohawk Tribal Court, Akwesasne, N.Y. | PDF

B.J. Jones, Tribal Court Judge and Director, Tribal Judicial Institute at the University of North Dakota School of Law | PDF

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New Book on the Doctrine of Discovery in Commonwealth Countries

October 18, 2010Matthew L.M. Fletcher

Discovering Indigenous Lands

The Doctrine of Discovery in the English Colonies

Robert J. Miller, Jacinta Ruru, Larissa Behrendt and Tracey Lindberg

This book presents new material and shines fresh light on the under-explored historical and legal evidence about the use of the doctrine of discovery in Australia, Canada, New Zealand and the United States.

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