Scholarship – Page 129

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

December 2, 2010Matthew 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

December 1, 2010Matthew 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

November 28, 2010Matthew 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

November 21, 2010November 19, 2010Matthew 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

November 21, 2010November 18, 2010Matthew 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.

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.