Scholarship

New Scholarship on Major Crimes Act Prosecutions and Race

Matthew L.M. Fletcher

Brian L. Lewis has published his excellent paper, “Do You Know What You Are? You Are What You Is; You Is What You Am: Indian Status for the Purpose of Federal Criminal Jurisdiction and the Current Split in the Court of Appeals,” in the Harvard Journal on Racial and Ethnic Justice (formerly the Harvard BlackLetter Law Journal).

Paper here: Lewis

The paper delves into the recent cases involving Indian status of criminal defendants prosecuted under the Major Crimes Act; and recent cases such as Cruz and Stymiest, where the Ninth and Eighth Circuits, respectively, reached conflicting conclusions on whether nonenrolled Indians are “Indian” under the statute.

Graham and McJohn: “Thirty Two Short Stories about Intellectual Property”

Matthew L.M. Fletcher

Lorie Graham and Stephen M. McJohn have posted their paper, “Thirty Two Short Stories about Intellectual Property,” on SSRN.

Here is the abstract:

In the United States, intellectual property law is usually viewed as serving economics, by providing an incentive for authors and inventors to create works. The incentive policy, however, ill fits the actual contours of intellectual property law and how artists and inventors use it. Adding other approaches offers a fuller explanation. Intellectual property plays a greater role than economic theory suggests in disclosing technology, and in serving to coordinate cultural values in technology. Intellectual property can serve human rights (similar to the moral rights approach in some jurisdictions), by allowing people to control the way that their works are publicly exploited, and by allowing groups (such as indigenous peoples) to implement rights of self-determination, education, and media.

This piece also departs from the typical law review format. In assessing doctrine and theory, deductive reasoning from economic or legal principles is no more important than literary tools, like interpretation and narrative. These points can be illustrated by some stories.

New Scholarship on the Havasupai DNA Case

Matthew L.M. Fletcher

Michelle M. Mello and Leslie Wolf will publish “The Havasupai Indian Tribe Case – Lessons for Research Involving Stored Biologic Samples” in the New England Journal of Medicine.

Sadly the paper is unavailable so far.

Here is the abstract:

In April 2010, Arizona State University agreed to pay $700,000 to 41 members of the Havasupai Indian tribe to settle claims that university researchers improperly used tribe members’ blood samples in genetic research. The case illuminates the unresolved controversy over what constitutes adequate informed consent for biospecimens collected for research purposes to be stored and used in future, possibly unrelated studies. This article discusses the ethical issues arising in this area and proposes strategies for addressing them.

New Book: “Citizenship and Its Exclusions” by Ediberto Román (NYU Press)

Matthew L.M. Fletcher

From the Faculty Lounge (Kevin Maillard):

Ediberto Roman’s new book, Citizenship and its Exclusions, has just been published by NYU Press.  He has been at Florida International since 2003, and previously served as Associate Dean.  Prof. Roman is also the editor of NYUP’s Citizenship book series.  Submission information for the series can be found here.

From the Press website:

Citizenship is generally viewed as the most desired legal status an individual can attain, invoking the belief that citizens hold full inclusion in a society, and can exercise and be protected by the Constitution. Yet this membership has historically been exclusive and illusive for many, and in Citizenship and Its Exclusions, Ediberto Román offers a sweeping, interdisciplinary analysis of citizenship’s contradictions.

Román offers an exploration of citizenship that spans from antiquity to the present, and crosses disciplines from history to political philosophy to law, including constitutional and critical race theories. Beginning with Greek and Roman writings on citizenship, he moves on to late-medieval and Renaissance Europe, then early Modern Western law, and culminates his analysis with an explanation of how past precedents have influenced U.S. law and policy regulating the citizenship status of indigenous and territorial island people, as well as how different levels of membership have created a de facto subordinate citizenship status for many members of American society, often lumped together as the “underclass.”

Are Law Review Articles Worthless to Practicing Lawyers and Judges?

Matthew L.M. Fletcher

From the Cal. Lawyer via the Law Librarian blog:

In 1980 the California Supreme Court reviewed a tort claim filed on behalf of women afflicted with cancer because their mothers had taken diethylstilbestrol (DES), a synthetic estrogen, during pregnancy. But, 20 or 30 years after the fact, the plaintiffs could not identify the manufacturer of the DES in question. How could the liability of any individual manufacturer be determined? Justice Stanley Mosk found the answer in a student note published in the Fordham Law Review, and so a law student’s advocacy of market-share liability became the law of California (Sindell v. Abbott Laboratories, 26 Cal. 3d 588 (1980)). Likewise, when then–Associate Justice Roger Traynor wrote his seminal concurring opinion inEscola v. Coca Cola Bottling Co. (24 Cal. 2d 453 (1944)), he cited 15 law review articles that discussed various aspects of strict liability for manufacturers.

During California’s legal “golden era” of the Gibson and Traynor Courts in the 1950s and ’60s, law reviews were cited with increasing frequency. In a classic study of the authorities cited in California Supreme Court opinions, Stanford law professor John H. Merryman counted 164 law review citations in the court’s 1970 opinions, a “sharp increase” over previous years (Merryman, “Toward a Theory of Citations,” 50 S. CAL. L. REV. 381 (1977)).

I did my own count recently of the California Supreme Court opinions published during the past five years that relied on law reviews as authority: There were just six. This despite—or perhaps because of—the fact that law reviews have tripled in number since the 1970s. The 20 ABA-accredited law schools in California now publish a total of 82 law reviews. UC Berkeley’s alone publishes 14, while Stanford and UC Hastings each publish 9. Both law professors seeking tenure and law students seeking employment at elite law firms eagerly fill these volumes. But who reads them now? Surely not the judges who decide the law. And not practicing lawyers either.

Continue reading →

New Indian Law Papers on Tribal Same-Sex Marriage & Carcieri

Matthew L.M. Fletcher

The Boston College Third World Law Journal has published two Indian law papers (hey, third world?!?!):

Mark P. Strasser, Tribal Marriages, Same-Sex Unions, and an Interstate Recognition Conundrum, 30 B.C. Third World L.J. 207 (2010)

and

Melanie Riccobene Jarboe, Collective Rights to Indigenous Land in Carcieri v. Salazar, 30 B.C. Third World L.J. 395 (2010)

Both are available here in pdf.

Rose Cuison Villazor on Ariela Gross’s “What Blood Won’t Tell”

Matthew L.M. Fletcher

Rose Cuison Villazor has posted, “Reading Between the (Blood) Lines,” forthcoming the Southern California Law Review. This paper is her book review of Ariela Gross’s “What Blood Won’t Tell.” Here is the abstract:

Legal scholars and historians have depicted the rule of hypodescent – that “one drop” of African blood categorized one as Black – as one of the powerful ways that law and society deployed to construct racial identities and deny equal citizenship. Ariela J. Gross’s new book, “What Blood Won’t Tell: A History of Race on Trial in America,” boldly complicates the dominant narrative about hypodescent rules in legal scholarship. On the one hand, “What Blood Won’t Tell” argues that the legal and social construction of race was far more complex, flexible and subject to manipulation than the scholarship regarding the rules about blood distinctions has suggested. On the other hand, “What Blood Won’t Tell” highlights circumstances, both historically and in recent memory, of the ways in which blood distinctions played crucial roles in shaping the identity of people of color, including indigenous peoples. Importantly, “What Blood Won’t Tell” also examines how blood quantum rules relate to contemporary efforts to reassert indigenous peoples’ sovereignty and claims to lands.

This Review highlights the important contributions of “What Blood Won’t Tell” to our understanding of the racial experience of indigenous peoples and the contemporary methods used to remedy the present-day effects of indigenous peoples’ colonial experience. “What Blood Won’t Tell” advances a more robust account of the racialization of people of color through rules about blood differences in at least three ways. First, it places the colonial experience of indigenous peoples within the larger historical contexts of racial subordination and efforts to promote White domination and privilege. Second, it underscores the federal government’s ongoing responsibility to counteract the long-standing effects of its past misdeeds by addressing indigenous peoples’ unresolved claims to lands that have been stolen from them. Third, it allows us to take a careful look at the relationship between blood quantum rules and the right of indigenous peoples to exercise self-determination. Taken together, these three perspectives reveal the immense challenges inherent to remedying the long-term effects of the racialization and colonization of indigenous peoples.

More “Deadwood” Scholarship

Kate Fort

Here is an essay on the television show “Deadwood” by Prof. Rebecca Johnson of the University of Victoria Law Faculty.  She has more discussion of Indians, rule of law, and colonialism than previous articles.

Living Deadwood: Imagination, Affect and the Persistence of the Past

Laches Article Cited in 7th Cir. Tax Case

Kate Fort

My article, The New Laches: Creating Title Where None Existed, 16 Geo. Mason L. Rev. 357 (2009) was cited in a 7th Circuit tax case this week.  🙂

Judge Posner used it as a see cite after a paragraph about the historical  purpose of laches, concluding that “[l]aches fitted nicely with such long-established equitable maxims as ‘he who seeks equity must do equity’ and ‘equity aids the vigilant, not those who sleep on their rights.'”

Interestingly, after spending three paragraphs on laches, the opinion reads “neither party suggests that laches might be an adequate substitution for a fixed deadline . . . ” and the Judge concludes his laches discussion with the point that whether laches applies against the government is “an open question in this court. United States v. Administrative Enterprises, Inc., 46 F.3d 670 (7th Cir. 1995). ” That case was one used in the 2nd Circuit Cayuga case, 413 F.3d 266 (2005), to hold laches applied to both the United States and the Cayuga Nation.  I think it’s possible Judge Posner might be as interested in laches and sovereigns as I am–it’s a rare person who voluntarily injects laches into discussion.

In the present case, Lantz v. Commissioner of Internal Revenue, No. 09-3345 (7th Cir. 2010), a woman seeking equitable relief under the “innocent spouse” rule regarding a false joint return filed by her husband, but signed by both of them.  Unfortunately, laches was no help to her.

Article on Applying International Law to Freedmen Disenrollment Cases

Matthew L.M. Fletcher

Greg Rubio published “Reclaiming Indian Civil Rights: The Application of International Human Rights Law to Tribal Disenrollment Actions” in the Oregon Review of International Law.

An excerpt:

A more detailed description of this Article’s warp and woof is in order. Part I highlights the substance and nature of the injury that forms the basis for potential international human rights claims. It describes the history and background of the Cherokee Freedmen, details the events of their disenrollment by the Cherokee tribe, and briefly considers the stakes that attend Indian membership determinations in the present political and economic context. Part II examines the body of domestic law under which an Indian plaintiff might normally seek redress: federal Indian law. This critical section concludes that through the current ascendancy of tribal sovereignty and self-determination in federal and congressional policy and the strict application of the common law doctrine of tribal sovereign immunity in federal courts, federal Indian law as presently constituted leaves the Cherokee Freedmen without any domestic remedy for the allegedly racially discriminatory action. Part III then turns to a discussion of two potentially applicable provisions of international human rights law. After describing the present status of indigenous peoples under international human rights law, Part III considers the two provisions, detailing how the disenrollment action implicates each. This Part finally outlines the relevant characteristics necessary to hold the United States accountable for the tribal disenrollment action under its international human rights obligations. After describing how the United States might find itself answering in an international forum for the allegedly discriminatory acts of the Cherokee, Part IV ponders the potential ramifications of this reality for Indian tribes and for the federal government. This Part suggests that these conclusions may imply a potential shift in the present status of federal Indian policy and portend a new and sober dimension in the ongoing dialogue over that most familiar ground in federal Indian law: the reach of tribal sovereignty.