Scholarship

Tribal Nation Economics and Legal Infrastructure

Articles

Exercising and Protecting Tribal Sovereignty in Day-to-Day Business Operations: What the Key Players Need to Know (395 KB PDF)
S. Chloe Thompson

America’s War on Tribal Economies: Federal Attacks on Native Contracting in the SBA 8(A) Business Development Program (184 KB PDF)
Helaman S. Hancock

Keeping the American Indian Rancher on the Land: A Socio-Legal Analysis of the Rise and the Demise of American Indian Ranching on the Northern Great Plains (241 KB PDF)
Raymond Cross

Indigenous (Ecological) Economics Remastered (177 KB PDF)
Valerie J. Phillips

Tribal Nations and Tribalist Economics: The Historical and Contemporary Impacts of Intergenerational Material Poverty and Cultural Wealth Within the United States (279 KB PDF)
Angelique EagleWoman (Wambdi A. WasteWin)

Bob Anderson on Delgamuukw

July 21, 2010Matthew L.M. Fletcher

Robert Anderson has posted “Aboriginal Title in the Canadian Legal System: Delgamuukw v. British Columbia” on SSRN. Here is the abstract:

Canada is grappling with legal issues surrounding indigenous property rights on a scale not seen in the United States since the mid-nineteenth century. Fundamental questions of fairness and justice related to indigenous peoples’ property rights are in flux in the province of British Columbia (B.C.) – an area the size of the states of California, Oregon, and Washington combined. The recognition of aboriginal rights in the Canadian Constitution in 1982 and recent judicial developments made it clear to the provincial government that nearly the entire province may be subject to aboriginal title claims. Consequently, the aboriginal nations and B.C. government have embarked on a treaty process to resolve conflicting interests, but not in the fashion utilized in the United States. In the U.S., treaties and agreements with Indian tribes generally resulted in the extinguishment of all indigenous property rights in sweeping terms. In addition, payment of compensation pursuant to the Indian Claims Commission process extinguished legal claims to lands taken previously without payment of compensation. To be sure, most of the roughly 300 tribes in the contiguous forty-eight states reserved homelands, or were moved to other areas set aside for their use and occupancy, and some retained extensive rights to access off-reservation wildlife resources. In British Columbia, however, no earlier treaties ceded aboriginal lands, and the provincial government has recognized that the “extinguishment” of aboriginal title is unacceptable to aboriginal nations. There are over sixty aboriginal nations engaged in forty-nine sets of negotiations with a stated goal of reconciling aboriginal rights and title with the fact the non-aboriginal people and governments are in Canada to stay. This chapter explores the foundation beneath the current negotiations.

Judge’s Guide to Tribal Civil Jurisdiction over Nonmembers

July 19, 2010Matthew L.M. Fletcher

Sarah Krakoff has posted “Tribal Civil Judicial Jurisdiction over Nonmembers: A Practical Guide for Judges.”

Here is the abstract:

This article provides a summary of the law of tribal court civil jurisdiction over persons who are not members of the governing tribe (hereafter nonmembers) followed by an analysis of trends in the lower courts. It was written to respond to a consensus view at “The Next Great Generation of American Indian Law Judges” Conference at the University of Colorado Law School, January 2010, that a concise, practical, yet in-depth treatment of this subject would be useful to the judiciary as well as practitioners. The article traces the development of the Supreme Court’s common law of tribal civil judicial jurisdiction from 1959 through the present. Next, it surveys all published lower federal court decisions from 1997-2010. Lower courts have upheld exercises of tribal jurisdiction in several cases that fit well within the Supreme Court’s increasingly narrow parameters for exercises of tribal authority over nonmembers. Those contexts include: (1) claims arising directly from a nonmember’s consensual relationship with the tribe or tribal members, and (2) claims that involve nonmember conduct on tribal lands that either harms the land itself, or presents a challenge to the tribe’s ability to provide for peace and security for tribal members. Despite the emergence of some clarity in the law, it is apparent nonetheless how cumbersome the process of litigating tribal court cases against nonmembers has become. Nonmember defendants challenge even clear examples of tribal jurisdiction, resulting in delay, multiplication of expenses, and insecurity for the parties. A better sense of the Supreme Court’s boundaries for tribal jurisdiction might help to reduce the problems otherwise associated with the double-layer of review to which all tribal court cases involving nonmembers are subject.

Angelique EagleWoman on Iqbal and Indian Law

July 14, 2010Matthew L.M. Fletcher

Angelique EagleWoman has published A Constitutional Crisis When the U.S. Supreme Court Acts in a Legislative Manner? An Essay Offering a Perspective on Judicial Activism in Federal Indian Law and Federal Civil Procedure Pleading Standards, 114 Penn St. L. Rev. Penn Statim 41 (2010).

An excerpt:

The United States Supreme Court is one of the three branches of federal government in the U.S. governmental system of checks and balances. The primary purpose of the Court is to resolve live controversies as final arbiter on the interpretation of the U.S. Constitution and the federal legislation implementing that foundational document. For scholars of federal Indian law, the U.S. Supreme Court has acted extra-constitutionally since it first heard a case involving tribal rights and has continued its “legislative” function in this area of the law ever since. Recently, the Court has stepped outside of the bounds of textual interpretation by creating a new level of civil pleading standards based on a “plausibility” requirement, rather than on the established Federal Rules of Civil Procedure notice pleading standard. While the judicial activism and unrestrained extra-textual interpretations in federal Indian law have been known to a core group in the field, the Court’s recent unmooring of civil pleading standards from the Federal Rules and settled precedent has come as a shock to many.

This essay will examine the U.S. Supreme Court’s judicial activism in relation to federal Indian law as a beginning point to discuss the recent introduction of the “plausibility” requirement in federal pleading sufficiency determinations. By examining the decisional law in the field of federal Indian law, the claimed power by the Court to redefine the legal status of Tribal Nations will become apparent. Next, the consequences of the U.S. Supreme Court’s unfettered ability to reshape law and limit access to the federal courts will be discussed. Finally, the essay will offer some conclusions on the constitutional crisis presented by the Court’s lack of judicial restraint in the legislative and political arenas.

Newest Issue of American Indian Law Review

July 13, 2010Matthew L.M. Fletcher

Here:

Current Issue – Vol. 34• No. 1 • 2009-2010

Article

United States v. Hatahley: A Legal Archaeology Case Study in Law and Racial Conflict – Debora L. Threedy

Comments

Biopiracy: The Struggle for Traditional Knowledge Rights – John Reid
NAGPRA Revisited: A Twenty-Year Review of Repatriation Efforts – Julia A. Cryne

Notes

Bittle v. Bahe: A Drunken Mistake – Brian Alan Burget
Yellow Snow on Sacred Sites: A Failed Application of the Religious Freedom Restoration Act – Joshua A. Edwards

Special Features

How the Anti-gaming Backlash Is Redefining Tribal Government Functions – Audrey Bryant Braccio
Winner, Best Appellate Brief in the 2009 Native American Law Student Association Moot Court Competition – Alex Hagen & J.R. LaPlante

Blumm and Steadman on the United States v. Washington Culverts Case

July 12, 2010Matthew L.M. Fletcher

Published in the UNM Natural Resources Journal….

Indian Treaty Fishing Rights and Habitat Protection: The Martinez Decision Supplies a Resounding Judicial Reaffirmation
Michael C. Blumm & Jane G. Steadman

Dan Lewerenz on the Jay Treaty Free Passage Right

July 12, 2010Matthew L.M. Fletcher

Dan Lewerenz has published his award-winning paper, “Historical Context and the Survival of the Jay Treaty Free Passage Right: A Response to Marcia Yablon-Zug,” in the Arizona Journal of International and Comparative Law.

Phil Frickey Walks On

July 11, 2010July 11, 2010Matthew L.M. Fletcher4 Comments

This is the last thing he sent me, just over a year ago: KSJLPPessay.

The final two paragraphs of this published talk he gave are as good a summation of anything he wrote, and a wonderful description of his legacy for me:

Ultimately, the scholarly enterprise in law cannot simply be bound up with law reform. Whatever the law is at a given time, the goal of the scholarly enterprise must be, at least in part, to transcend doctrinal issues and try to help legal institutions better understand the nature, effects, and limits of law. Legal scholarship is a subpart of scholarship in general, and one goal of scholarship in general is to improve our knowledge about the world. The larger, non-Indian community simply does not know very much about tribal institutions and law. And what they don’t know tends not to hurt the larger community, but instead, to hurt tribes.

When someone in the dominant legal community asks me where I am from, and I say Oberlin, Kansas, that no doubt conjures up a variety of images, some positive, some negative, but almost certainly evokes no strong feelings about the system of justice in such rural communities. So, too, would be the case for my cartoon figure who claims to be from Cleveland, though not from Cleveland anymore. But if the response were that the person is from, say, the Cheyenne River Sioux Indian Reservation – the place where the Plains Commerce Bank case arose and was litigated – I think more than a few members of the dominant legal community may well conjure up negative images of the system of justice found there. And that, at least as much as the dry legal rules in books, should be a matter of significant concern for all of us. The people in this room, at least by and large, probably reject those negative images. I think that it is time we did something about documenting who is right, on the whole, and in what varied circumstances – the dominant community, or the rest of us.

New Article on Tribal Immunity and Tribal Governance

July 8, 2010Matthew L.M. Fletcher3 Comments

Katherine Florey has published her paper (workshopped at MSU!), “Indian Country’s Borders: Territoriality, Immunity, and the Construction of Tribal Sovereignty,” in the Boston College Law Review.

Here is the abstract:

This Article explores the consequences of an anomaly in the Supreme Court’s Indian law jurisprudence. In the past few decades, the Court has sharply limited the regulatory powers of tribal governments and the jurisdiction of tribal courts while leaving intact the sovereign immunity that tribes have traditionally enjoyed. The result has been that tribes can avoid the effects of otherwise-applicable state and federal law, while at the same time they lack any affirmative powers to regulate events within their territory. This Article argues that this state of affairs is untenable. This Article first suggests that for tribes to exist as effective governments, their sovereign authority must have a territorial component. The Article then discusses the undesirable consequences of tribal sovereign immunity, including a lack of government accountability, increased uncertainty about the law’s reach, and inadequate compensation for tort victims. Ultimately, this Article concludes that, although it may be tempting for tribal advocates to embrace tribal sovereign immunity when the Supreme Court seems disinclined to preserve other elements of tribal sovereignty, relying on immunity as the cornerstone of sovereignty would be a mistake. Instead, tribes should take steps to strengthen the territorial component of their sovereign status.

The abstract looks interesting, though I am wary of arguments continuing to perpetuate the Supreme Court’s gross misrepresentation that tribal sovereign immunity developed “by accident.” Of course, the Court’s first tribal immunity cases a hundred years ago were strange manifestations of the guardian-ward relationship — an “accident” of Indian law jurisprudence to be sure. Regardless of whether the Court or the Constitution says so (actually, the Constitution does say so), Indian tribes are sovereigns, and like all sovereigns in American law, they are entitled to immunity from suit.

Continue reading →

New Article on Indian Tribes as Amici and Supreme Court Rule 37.4

July 1, 2010Matthew L.M. Fletcher

Good stuff. 🙂

Here is the article: The Supreme Court’s Treatment of Sovereigns as Amici Curiae, by Stephen R. McAllister.