Scholarship

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

Washburn Law Journal Symposium on Tribal Economies and Infrastructure

Matthew L.M. Fletcher

Here:

Tribal Nation Economics and Legal Infrastructure

Introduction

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

Matthew 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

Matthew 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.