Scholarship

Mark Cowan on the Idaho Tribal Tax Dispute

Matthew L.M. Fletcher

Mark J. Cowan has published “Anatomy of a State/Tribal Tax Dispute: Legal Formalism, Shifting Incidence, Potatoes, and the Idaho Motor Fuel Tax” in the ATA Journal of Legal Tax Research (pdf).

Here is the abstract:

The law regarding state taxation in Indian country is one of the last bastions of legal formalism in tax law jurisprudence. The ability of a state to tax in Indian country turns on the legal incidence of the tax: in general, a tax on the tribe or tribal members is not allowed; a tax on nonmembers doing business with the tribes or tribal members is allowed. In a world where legal formalism governs and there is no overarching mechanism for reconciling the competing interests of state and tribal governments, state/tribal tax disputes can quickly become contentious. A recent battle between the state of Idaho and the tribes within its borders over fuel tax revenue exemplifies the truculence of state/tribal tax disputes, but also shows that amicable resolution is possible when the courts take small steps away from legal formalism. This article provides an overview of the tax landscape in Indian country and then analyzes the dispute over the Idaho motor fuel tax and what it reveals about resolving state/tribal tax disputes.

Kirsty Gover on Comparative Tribal Constitutions

Matthew L.M. Fletcher

Kirsty Gover has published Comparative Tribal Constitutionalism: Membership Governance in Australia, Canada, New Zealand, and the United States in Law and Social Inquiry (Summer 2010) (pdf). Here is the abstract:

In the “self-governance era” of indigenous-state relations, there is a growing interest in the first-order question of tribal governance: who are the members of recognized tribes, and how are they chosen? Tribal constitutions contain formal tribal membership criteria but are not ordinarily in the public domain. This article presents findings from a study of the membership rules used in more than seven hundred current and historical tribal constitutions and codes. It offers a comparative analysis to explain significant differences between North American and Australasian tribal constitutionalism, particularly in the administration of descent, multiple membership, and disenrollment. It advances the argument that tribes self-constitute in ways that are more relational and less ascriptive than is suggested in current political theory and policy; that existing representations of tribes obscure nontribal expressions of indigeneity, on which tribes depend; and that these expressions should be officially supported in public law and policy.

Alex Skibine on the Secretary’s Obligation to Take Land into Trust for Indian Tribes

Matthew L.M. Fletcher

Alexander Tallchief Skibine has posted “Towards a Trust We Can Trust: Taking the Duty to Transfer Land into Trust for Indian Tribes Seriously” on SSRN. Here is the abstract:

The purpose of this paper is to explain why the Secretary of the Interior should have a proactive role in placing land into trust status for the benefit of Indian tribes pursuant to the authority given to him by Congress under section 5 of the Indian Reorganization Act of 1934. Although the broader question addressed in this paper is the role the Indian trust doctrine should have in guiding all federal agencies when implementing legislation enacted for the benefit of Indians, the paper addresses this issue by focusing on the legitimacy of the regulations adopted by the Department in 1980 and 1995 to implement section five of the IRA. The thesis of this paper is that in the context of section 5 of the IRA, the trust doctrine should guide decisions made by the Secretary of the Interior. To demonstrate this point, after giving a short overview of the history of section five’s implementation, the paper examines the role of the trust doctrine in the implementation of legislation enacted for the benefit of Indians, and concludes by explaining why it should play a crucial role in the Secretary’s implementation of section 5 of the IRA.

Looks like an important, timely paper.


Sonia Katyal’s New Article: “Trademark Intersectionality”

Matthew L.M. Fletcher

Published here at the UCLA Law Review.

Here is the abstract:

Even though most scholars and judges treat intellectual property law as a predominantly content-neutral phenomenon, trademark law contains a statutory provision, section 2(a), that provides for the cancellation of marks that are “disparaging,” “immoral,” or “scandalous.” This provision has raised intrinsically powerful constitutional concerns, which invariably affect two central metaphors that are at war within trademark law: the marketplace of goods, which premises itself on the fixedness of intellectual properties, and the marketplace of ideas, which is premised on the very fluidity of language itself. Since the architecture of trademark law focuses only on how marks communicate information about a certain product or corporation within the marketplace of goods, it largely underestimates the more complex role that trademarks play within the marketplace of ideas. Conversely, by only taking into account a brand’s expressive implications, the provisions governing scandalous, disparaging, and immoral matter fail to substantively address the source-identifying functions that these marks often serve.

Wonderful material!

Schaap on the Growth of Indian Gaming

Matthew L.M. Fletcher1 Comment

James Schaap has published The Growth of the Native American Gaming Industry: What Has the Past Provided, and What Does the Future Hold? (Schaap on the Growth of Indian Gaming) in the American Indian Quarterly. Here is a quick excerpt:

What can we say about the phenomenal growth of the Native American gaming industry? In order to evaluate the industry’s development we first need to consider its economic, social, and political history. Then, building on this foundation, it will be possible to predict, strictly from an observational perspective, what the future may hold for Native Americans.

Fletcher on American Indian Tribes and Constitutional Authority

Matthew L.M. Fletcher

Please check out my Consent and Resistance: The Modern Struggle between American Indian Tribes and the United States on SSRN. Here is the abstract:

    After a few years of late 19th century confusion, the United States Supreme Court held definitively in 1898 that the United States Constitution does not bind Indian tribes. Indian tribes were not invited to the Constitutional Convention. Indian tribes never ratified the Constitution (nor were they asked). The Constitution places Indian tribes and foreign nations in the same category of governments that, by definition, were not American.

    And yet in the 21st century, it is well understood that Indian tribes are a part – somehow – of the American Constitutional structure. Justice O’Connor wrote that Indian tribes are the “third sovereign.” It remains hornbook law that the Constitution does not bind Indian tribes, but the three branches of the federal each purport to maintain plenary control over critical aspects of Indian tribes, citing to admittedly dubious authority.

    The book project will parse through that history into the modern era, and highlight areas in which federal government control over Indian affairs no longer makes sense. Using aspects of consent theory to generate separate theories of tribal and individual Indian consent, I propose a new way of viewing Indian affairs, in which Indian tribes and individual Indians strategically exercise resistance to federal law as a means of vesting Indian tribes and Indian people in the American constitutional structure.

I will be presenting this idea at the 3rd National People of Color Legal Scholarship Conference (Sept. 9-12) at Seton Hall law school, on a panel with fellow Indian law scholars Bob Miller, Ray Austin, and Kate Fort.

Philosophical critique of plenary power

Ann Tweedy

George Martinez has published an interesting article critiquing plenary power in the Indian law context and other contexts from a philosophical standpoint.  Basically, he says that plenary power harms those that wield it.  The article is “Race, American Law and the State of Nature,” 112 W. Va. L. Rev. 799 (2010).  Unfortunately, it doesn’t seem to be available on SSRN or Bepress.   Here’s the abstract:

“This Article advances a new theoretical framework to help explain and understand race and American law. In particular, the Article argues that we can employ a philosophical model to attempt to understand what often occurs when the dominant group deals with persons of color. The Article contends that when the dominant group acts with great power or lack of constraint, it often acts as though it were in what political philosophers have called the state of nature. Thus, the Article argues that there is a tendency for the dominant group to act as though it were in the state of nature when dealing with persons of color. There is a tendency not to feel any constraints or move toward a situation with fewer constraints on the dominant group. The Article contends that there is reason to believe that operating with great power or lack of constraint will have bad effects on the persons wielding such power.”

ELQ Article on Tribal Government Standing to Bring Environmental Claims

Matthew L.M. Fletcher

Hae-June Ahn has published, “Tribal Governments Should Be Entitled to Special Solicitude: The Overarching Sentiment of the Parens Patriae Doctrine,” in the Ecology Law Quarterly.

Bill Rice on the Future of Indian Gaming

Matthew L.M. Fletcher

Bill Rice has posted his fine paper, Some Thoughts on the Future of Indian Gaming, published in the Arizona State University Law Journal, Vol. 42, No. 1, p. 219, Spring 2010. Here is the abstract:

In surveying the historical development of Indian gaming, it is apparent that several pre-IGRA legal principles had a significant impact upon the development of the Indian Gaming Regulatory Act (IGRA) and the relevant caselaw. Since the enactment of the IGRA in 1988, litigation in the federal appelllate courts, has resulted in sufficient decisional law to be instructive in its interpretation, and to prognosticate the future to some degree. In addition to historical and developmental issues, primary areas of litigation have included: 1. Management contracts, and issues relating to their approval, enforcement, and cancellation. 2. Game classification issues in class II (bingo and related games) and class III Indian gaming (generally thought of as “casino” games). 3. Tribal-State compacting regarding class III Indian gaming establishments, and the interplay between the compacting process and the game classification process. 4. The reacquisition of land by Indian tribes, and the eligibility of such lands for gaming purposes pursuant to IGRA.

Given an understanding of the issues raised by the case law in these areas, and related litigation, additional issues may be identified which may be litigated or otherwise determined in the future. This enables one to identify certain policy issues which should be considered by the National Indian Gaming Commission, Congress, the Tribes, and States in the future.

Judge Connors and Vivek Sankaran on the Family Law Implications of Crow Dog and Spotted Tail

Matthew L.M. Fletcher

In the Michigan Bar Journal:

Crow Dog vs. Spotted Tail: Case Closed?

by Hon. Timothy Connors and Vivek Sankaran