Scholarship

Angelique EagleWoman on Iqbal and Indian Law

Matthew 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

Matthew 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

Matthew 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

Matthew 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.

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Phil Frickey Walks On

Matthew 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

Matthew 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

Matthew L.M. Fletcher

Good stuff. 🙂

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

An excerpt:

THE SUPREME COURT’S RULE on briefs of amici curiae does not treat all sovereigns the same. In particular, Indian Tribes and foreign nations are treated less generously than the United States, any State or territory, and even local governments. This article explores the origin of this disparate treatment and comments on its propriety.

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.