Scholarship

Kevin Maillard on Children as Property

Matthew L.M. Fletcher

Kevin Noble Maillard has published Rethinking Children as Property: The Transitive Family in the Cardozo Law Review.

Here is the abstract:

Despite the collective view in law and social practice that it is intrinsically taboo to consider human beings as chattel, the law persists in treating children as property. Applying principles of property, this Article examines paternity disputes to explain and critique the law’s view of children as property of their parents. As evidenced in these conflicts, the Article demonstrates that legal paternity exposes a rhetoric of ownership, possession, and exchange. The law presumes that a child born to a married woman is fathered by her husband, even when irrefutable proof exists that another man fathered the child. Attempts by non-marital biological fathers to assert parental rights regularly fail, as states allow only one father to “claim” the child. This approach treats the nonmarital father as a trespasser and categorically favors the fundamental due process rights of the marital father.

Cardozo Law Conference on Employment Division v. Smith — No Indian Law Scholars

Matthew L.M. Fletcher1 Comment

Ach, hate to point this out. Here is the agenda for last week’s major conference on Employment Division v. Smith at Cardozo, with papers to be published in the Cardozo Law Review (which last published an Indian law article in 1991, as far as we can tell).

We had a great discussion on religious freedom this last weekend with Doug Laycock, Chris Lund, and Frank Ravitch.

Scholarship on the link between economic progress and evironmental regulation in Indian country

Ann Tweedy

Here’s an article by Daniel Watts arguing that tribes’ economic progress is tied to environmental law and policy.
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1687376

Dean Kevin Washburn on the Next Great Generation of Indian Law Judges

Matthew L.M. Fletcher

Dean Kevin Washburn has posted his paper, “The Next Great Generation of American Indian Law Judges,” on SSRN. The paper is forthcoming from the University of Colorado Law Review.

Here is the abstract:

This short essay, which was the keynote address at a conference of the same title in 2010, argues that the best predictors of good Indian law judging are education, familiarity and experience. People who have been raised believing that there are only two orders of government in the United States are often surprised when they encounter the legal existence of Indian tribes. Most judges become more comfortable with notions of tribal sovereignty after prolonged exposure to cases discussing those principles. Thus, educating all Americans about Indian tribes in primary and secondary education would produce better policy-makers in general and better judges for Indian law cases.

Student Article Criticizing Carcieri v. Salazar

Matthew L.M. Fletcher

Sarah Washburn has published Distinguishing Carcieri v. Salazar: Why the Supreme Court Got It Wrong and How Congress and Courts Should Respond to Preserve Tribal and Federal Interests in the IRA’s Trust-Land Provisions in the Washington Law Review.

The abstract:

Section 5 of the Indian Reorganization Act (IRA) authorizes the Secretary of the Interior to acquire and hold land in trust for the purpose of providing land for Indians. In 2009, the Supreme Court held in Carcieri v. Salazar that to qualify for the benefits of Section 5, tribes must show they were under federal jurisdiction at the time the IRA was enacted in 1934. The Carcieri Court then determined that the Narragansett tribe, which obtained federal recognition in 1983 under the 25 C.F.R. Part 83 recognition process, had not proven that it was under federal jurisdiction in 1934. Carcieri was the first case in which the Court decoupled jurisdiction from recognition for purposes of the IRA. It could be read to suggest that federal recognition on its own is not enough to prove federal jurisdiction for purposes of the IRA and thus threatens the interests of all tribes; especially at risk are tribes that obtained federal recognition after Congress enacted the IRA. Many of those tribes were simply overlooked and excluded from a list of recognized tribes compiled upon enactment of the IRA, and all of them have demonstrable historical relationships with the federal government. While the Carcieri Court limited its holding to the timing question—that the phrase “now under federal jurisdiction” in the IRA means that a tribe must prove federal jurisdiction existed in 1934—it did not consider how tribes might prove such jurisdiction existed. This Comment argues that tribes recognized after the enactment of the IRA, through either traditional recognition processes or the recognition procedures set forth in 25 C.F.R. Part 83, were necessarily under federal jurisdiction in 1934 and should therefore qualify under the IRA’s Section 5 trust-land provisions. It argues that Congress should respond to Carcieri with legislation clarifying that all federally recognized tribes were necessarily under federal jurisdiction in 1934. It further argues that until Congress acts, courts should allow tribes recognized after 1934 to prove through additional evidence that such jurisdiction existed.

Painter-Thorne Article Criticizing Federal Jurisdiction over Sexual Assault on American Indian Women

Matthew L.M. Fletcher1 Comment

Suzianne Painter-Thorne has posted her article “Tangled Up in Knots: How Continued Federal Jurisdiction Over Sexual Predators on Indian Reservations Hobbles Effective Law Enforcement to the Detriment of Indian Women” on SSRN. Here is the abstract:

An Indian woman is two-and-a-half times more likely than any other American woman to be sexually assaulted in her lifetime. Nevertheless, because of a confusing tangle of jurisdictional rules, she is four times less likely to see her assailant arrested. She is even less likely to see him stand trial. Because jurisdiction over most sexual assaults is vested in the federal government, Indian tribes are not allowed to arrest or prosecute most of the suspects who commit sexual assaults on tribal lands. Consequently, tribal lands have become safe havens for sexual predators, who can commit their offenses with impunity and with little fear of prosecution.

This article proposes that federal jurisdiction prevents effective law enforcement on Indian reservations and leaves Indian women at a greater risk of sexual assault. While the recently passed Tribal Law and Order Act seeks to improve reservation law enforcement, it fails to provide meaningful reform because it perpetuates the current law enforcement scheme that leaves Indian women vulnerable to sexual assault. Remote federal officials are not in the best position – geographically, politically, or culturally – to police reservation lands. Instead, Congress needs to reassess tribal jurisdiction, permitting tribes to arrest and prosecute suspects who commit sexual assaults on tribal lands. For too long, tribes have been left powerless to defend their own people against predators who enter reservation lands and commit unspeakable violence against tribal citizens. At the heart of sovereignty is the responsibility of government to protect its citizens. It is time to permit tribes to rise to this responsibility.

Jack Balkin’s “Commerce” Published in Michigan Law Review

Matthew L.M. Fletcher

Here.

Our prior discussion of this article, along with several very interesting comments, is here.

Here is the abstract:

This Article applies the method of text and principle to an important problem in constitutional interpretation: the constitutional legitimacy of the modern regulatory state and its expansive definition of federal commerce power. Some originalists argue that the modern state cannot be justified, while others accept existing precedents as a “pragmatic exception” to originalism. Nonoriginalists, in turn, point to these difficulties as a refutation of originalist premises.

Continue reading →

Rand and Light on Obama, Salazar, and Off-Reservation Gaming

Matthew L.M. Fletcher

Here, from the Gaming Law Review: Obama_Administration_July_2010

Carcieri, the Word “Now,” and Fortune Cookies in the George Mason Law Review

Matthew L.M. Fletcher

Jeremy Graboyes has published, “Now, Voyager: Deixis and the Temporal Pragmatics of Statutes,” in the George Mason Law Review.

An excerpt:

You come across a fortune cookie. The fortune inside reads: “The plans you now have are going to succeed.” Unsure when now is, you are left wondering which of your goals will be successful. There are three possibilities. First, now references some fixed point in the past—be it the moment the fortune was first conceived, printed, enclosed in its cookie, or shipped from the factory. All goals you had at that moment will be successful, but you have no guarantees as to goals made later in time, including goals at the time of reading the fortune. Second, now references the moment you first read your fortune. All goals you have at that moment will be successful, but you have no guarantees as to goals you may make later in time. Third, now references any moment you read your fortune. Whenever you read the fortune, no matter how many times you read it, you are guaranteed that all goals you have at that moment will be successful.

A legal journal would be a strange place, indeed, for an article discussing the hermeneutics of fortune cookies. But this interpretive problem has reared its head in the context of statutory interpretation, most recently in Carcieri v. Salazar, decided by the Supreme Court in 2009. This Comment analyzes the interpretive problem now presents in statutory language and gauges methods to resolve the ambiguity. After beginning with the word’s ordinary meaning and finding it to offer no real guidance, this Comment concludes that, absent clear indication of the word’s meaning from legislative history, only a purposive or pragmatic determination can provide a solution. What is significant about now—and what forms the crux of this Comment—is that the resolution of the signification of now relies on what we think a statute really is.

Forthcoming Scholarship on Indian Law Preemption

Matthew L.M. Fletcher

Jackie Gardina has posted “Federal Preemption: A Roadmap for the Application of Tribal Law in State Courts,” forthcoming in the American Indian Law Review. [Also available at BEPRESS.]

Here is the abstract:

This article contends that state courts are not necessarily free to apply state law when the state court is exercising concurrent adjudicative jurisdiction with tribal courts. Instead Indian law principles of pre-emption direct state courts to apply tribal law in certain cases. A guiding principle emerges: if a tribe has legislative jurisdiction over the dispute, tribal law ordinarily must be applied. In these instances, a state’s laws, including its choice of law rules, are preempted by federal common law because their application interferes with the federal government’s and the tribe’s interest in promoting tribal self-government, including the tribe’s ability to create laws and have those laws applied to disputes over which they have jurisdiction. This article differs in a significant respect from other articles addressing the application of tribal law in state courts. Some commentators have argued that state courts should incorporate tribal law into their traditional choice of law analysis. While this argument is certainly viable, it fails to recognize the primacy of tribal law and tribal interests in certain instances. The forum bias inherent in state choice of law rules provides limited protection to a tribe’s sovereignty interest. To the extent that the state’s choice of law rules can be bypassed, they should be.