Scholarship

Fletcher on “Race and American Indian Tribal Nationhood” — UPDATED

Matthew L.M. Fletcher

“Race and American Indian Tribal Nationhood” is available for download here. [The paper is there now, sorry.]

Here is the abstract:

Modern American Indian nations face a racial paradox. On one hand, the citizenry of Indian nations is almost exclusively based in race, ethnicity, and ancestry. Indian nations would not be “Indian” without this basis. But American constitutional principles dictate that laws based on racial, ethnic, or ancestral classifications are highly disfavored. For Indian nations, this means that Indian governments have virtually no authority to regulate the activities of the non-Indian citizens that live amongst Indian communities. This paper offers a long-term solution to this conundrum, a solution that requires Indian nations and American courts and policymakers to modernize understandings about American Indian tribal nationhood. American Indian law and policy forced Indian nations into a legal status akin to “domestic racial nations.” By tweaking Indian citizenship requirements, and recognizing the national character of modern Indian nations, modern Indian nations should more properly be understood as simply “domestic nations,” much like Monaco and The Vatican.

Constructive feedback welcome.

CIC-AIS Graduate Conference Prize Winners

Matthew L.M. Fletcher2 Comments

Dear Colleagues:

Please spread the news that all three of the submitted prize winners at the recent graduate conference were women!!!   FIRST PRIZE went to Nicole Marie Keway for her remarkable paper on Emerson:  “The Piquancy of Particularity: Emersonian Savages and Speaking Beyond the Woods.”  The SECOND PRIZE winner was Sandra Garner for “Rhetorics of Traditions: Troubling Tradition in the Lakota Declaration of War Against Exploiters of Lakota Spirituality” –  Sandra is completing her degree at Ohio State University and will be at Miami University as a post-doc this fall.  Finally, a law student, Adrea Korthase, received THIRD PRIZE for her work on the “Kennecott Eagle Mineral Project and the Need for a Michigan Religious Protection Act.”

To see these outstanding women, please go to our website —  http://www.msu.edu/~cicaisc/ –  you can see their pictures as well as many of the other participants.  Conference planning, spearheaded by Susan Krouse, the director of the MSU AISP and her able assistant, Sakina Hughes, made this another memorable event.  The University of Wisconsin, University of Chicago, Ohio State, and the University of Michigan added a tremendous variety of  new scholarly approaches to the program – be sure to look at the program, which is on-line at our website.

Susan Sleeper-Smith

Director, CIC-AIS Consortium

Arizona State Law Journal IGRA Symposium Issue

Kate Fort

The Arizona State Law Journal’s IGRA Symposium Issue is out.  Volume 42 has 7 articles about IGRA.  The articles are not yet available on their website, but here are the titles and the authors.  Some of the articles are available on this site via SSRN.

Virginia W. Boylan, Reflections on IGRA 20 Years After Enactment, 42 Arizona State Law Journal 1  (Spring 2010)

Robert N. Clinton,  Enactment of the Indian Gaming Regulatory Act of 1988: The Return of the Buffalo to Indian Country or Another Federal Usurpation of Tribal Sovereignty?,  42 Arizona State Law Journal 17

Franklin Ducheneaux, The Indian Gaming Regulatory Act: Background and Legislative History, 42 Arizona State Law Journal 99

Kevin Washburn, Kevin Gover, Tom Gede, The States as Trespassers in a Federal-Tribal Relationship: A Historical Critique Tribal-State Compacting Under IGRA, 42 Arizona State Law Journal 185

G. William Rice, Some Thoughts on the Future of Indian Gaming, 42 Arizona State Law Journal 219

Alexander Tallchief Skibine, Indian Gaming and Cooperative Federalism, 42 Arizona State Law Journal 253

Kevin Washburn, Agency Conflict and Culture: Federal Implementation of the Indian Gaming Regulatory Act by the National Indian Gaming Commission, The Bureau of Indian Affairs, and the Department of Justice, 42 Arizona State Law Journal 303

Tribal Per Caps Make Some Indians Healthier

Matthew L.M. Fletcher3 Comments

From Indianz (JAMA Study on Per Caps and Health):

Members of the Eastern Band of Cherokee Indians who received per capita payments from the tribe’s casino were less likely to abuse alcohol and marijuana, according to a study in the Journal of the American Medical Association.

Tribal members began receiving a share of gaming revenues in 1996. The study tracked Eastern Cherokee youth from 1993 through 2006 and found a link between well-being and the payments.

Tribal youth were better off as adults than older tribal members who did not grow up with the revenues, according to the study. And tribal youth fared “significantly” better as adults than non-Indians, researchers found.

The tribe operates the Harrah’s Cherokee Hotel and Casino in western North Carolina.

Get the Story:

Nc American Indians With Casino Income Fare Better (AP 5/18)

dré cummings on Media Bias and Indian Law

Matthew L.M. Fletcher

andré douglas pond cummings has posted his paper, “A Shifting Wind?: Media Stereotyping of American Indians and the Law,” on SSRN. Here is the abstract:

An accurate historical narrative of the treatment imposed upon American Indians at the hands of the United States Government reveals a sordid tale. The portrayal and stereotyping of North America’s indigenous civilizations by the United States’ popular media emulates this foul history. The U.S. legal system’s contemptuous judicial decrees and legal policies promulgated for more than two centuries testifies to the Government’s and the popular media’s hostility and historical abuse toward American Indians. Unfortunately for historical (and modern) purveyors, each of these abhorrent deeds is memorialized for the world to read and see in innumerable broken treaties, motion pictures, literary works and judicial reporters.

In recent decades, historians and scholars, both American Indian and non-native alike have skillfully documented the deceitful trail of broken promises and near annihilation. In addition, the popular U.S. media and the U.S. legal system have intersected curiously over the years in connection with a tag-team treatment of and discrimination against American Indians. The media, including print advertising, newspapers, literary works, television, online sources and motion pictures, seems to have borrowed historical stereotypical characterizations from the judiciary and U.S. government policies, and vice versa, simultaneously portraying American Indians as ferocious and savage yet simple and helpless. Proven instances of governmental abuse and discrimination, hostile portrayal and stereotyping by the media and contemptible judicial decrees are innumerable.

In very recent years, there is some evidence that the winds are shifting. Slowly and steadily, segments of the mass media seem to be trending toward a more honest historical account of U.S. history, and the portrayal of American Indians is becoming more reflective of reality and humanity. In the past decade, encouraging signs that the wind is shifting have signaled a potential sea change in the way that American Indians are presented to the United States public through the media and the law.

That said, favorite American Indian stereotypes and comfortable discriminations die hard. As the law and media stumble forward awkwardly, attempting to get it right, an assortment of U.S. contingencies, including professional sports franchises and American Universities, cling desperately to time-worn typecasts and hostile imagery.

While a veritable candelabra of options exist when attempting to describe the shameful historical treatment of American Indians, the following three brief snapshots will be presented to capture the essence of that treatment and to contemplate any further change in the curious intersection between the media and the law. The three snapshots will include a glimpse of the historical United States Government treatment of American Indians, followed by a look at the traditional stereotyping of American Indians by U.S. mass media and finally a brief examination of a few of the historically offensive judicial decrees handed down by federal judges. Thereafter an examination of the connection between the modern media and the law will be undertaken to assess whether a sea change is truly upon us.

Laughlin McDonald’s New Book on Voting Rights in Indian Country Now Available

Matthew L.M. Fletcher

Just in my mailbox….

American Indians and the Fight for Equal Voting Rights

By Laughlin McDonald

Recounting Indians’ progress in the voting booth

The struggle for voting rights was not limited to African Americans in the South. American Indians also faced discrimination at the polls and still do today. This book explores their fight for equal voting rights and carefully documents how non-Indian officials have tried to maintain dominance over Native peoples despite the rights they are guaranteed as American citizens.

Laughlin McDonald has participated in numerous lawsuits brought on behalf of Native Americans in Montana, Colorado, Nebraska, South Dakota, and Wyoming. This litigation challenged discriminatory election practices such as at-large elections, redistricting plans crafted to dilute voting strength, unfounded allegations of election fraud on reservations, burdensome identification and registration requirements, lack of language assistance, and noncompliance with the Voting Rights Act. McDonald devotes special attention to the VRA and its amendments, whose protections are central to realizing the goal of equal political participation.

McDonald describes past and present-day discrimination against Indians, including land seizures, destruction of bison herds, attempts to eradicate Native language and culture, and efforts to remove and in some cases even exterminate tribes. Because of such treatment, he argues, Indians suffer a severely depressed socioeconomic status, voting is sharply polarized along racial lines, and tribes are isolated and lack meaningful interaction with non-Indians in communities bordering reservations.

Continue reading →

Mike McBride on Class II Gaming

Matthew L.M. Fletcher

From Indian Gaming Magazine (May 2010): May10_McBride Indian Gaming Compacts in OK– Indian Gaming Ma

“Resisting Federal Courts on Tribal Jurisdiction” Draft Paper Available

Matthew L.M. Fletcher2 Comments

My paper, “Resisting Federal Courts on Tribal Jurisdiction,” forthcoming in the University of Colorado Law Review‘s 2010 symposium issue, is available for download on SSRN.

The abstract (if you want to call it that):

This paper is part of a call for a paradigm-shifting re-examination by Indian tribes and Indian people about their place in the American constitutional structure. For tribal advocates to prevail in the federal judiciary, they must force federal judges to rethink everything they know about federal Indian law. There are at least two ways to do this. Tribal advocates and American Indian law scholars must first establish a baseline of knowledge and information about the realities of Indian Country in the 21st century. This work is nascent and ongoing, if not burgeoning, but frankly is far from enough. A second strategy must be a strategy itself, litigation with an eye toward presenting the best cases before the federal judiciary and the Supreme Court. As any litigator knows, facts win a case, not general truths.

In this paper, I argue a theory of tribal consent and resistance to federal government control embodied in the Supreme Court’s assertion of federal court supervision of tribal court civil jurisdiction. The pure federal common law cause of action expounded by the Supreme Court in 1985’s National Farmers Union v. Crow Tribe is ripe for reexamination, if not outright reversal. Tribes never consented to such a broad-based assertion of federal court jurisdiction, although tribes could consent if asked. I propose methods by which tribes and their appellate counsel can resist such jurisdiction, and perhaps in the same breath establish a meaningful recognition by the Supreme Court of the legitimacy of tribal justice systems.

Comments appreciated, as this is still a draft.

Daniel Heath Justice on Queer Indians and the Cherokee Nation

Matthew L.M. Fletcher1 Comment

Daniel Heath Justice has published “Notes on a Theory of Anomaly” in GLQ: A Journal of Lesbian and Gay Studies (article here: Notes Toward a Theory of Anomaly.

Here is the abstract:

Recent laws against same-sex marriage in the Cherokee Nation provide the backdrop for this analysis of alternative models of Cherokee sexual diversity. Rather than seek identifiable historical precedent that is largely unavailable in the historical record and vehemently denied by the predominantly Baptist Cherokee majority, this essay argues instead for a modern queer Cherokee aesthetic that is both responsive to the contemporary experiences of gender- and sexuality-variant Cherokees and inspired by the late Mississippian category of “anomaly” as a queer-inclusive tribal model for belonging.

New Scholarship on Sexual Predators in Indian Country

Matthew L.M. Fletcher1 Comment

Suzianne D. Painter-Thorne has posted her paper, “Tangled Up in Knots: How Continued Federal Jurisdiction over Sexual Predators on Indian Reservations Hobbles Effective Law Enforcement to the Detriment of Indian Women,” on BEPress.

Here is the abstract:

An Indian woman is two-and-a-half times more likely than any other American woman to be sexually assaulted in her lifetime. Nevertheless, because of a confusing tangle of jurisdictional rules, she is four times less likely to see her assailant arrested. She is even less likely to see him stand trial. Because jurisdiction over most sexual assaults is vested in the federal government, Indian tribes are not allowed to arrest or prosecute most of the suspects who commit sexual assaults on tribal lands. Consequently, tribal lands have become safe havens for sexual predators, who can commit their offenses with impunity and with little fear of prosecution.

This article proposes that federal jurisdiction prevents effective law enforcement on Indian reservations and leaves Indian women at a greater risk of sexual assault. While recently proposed congressional legislation seeks to improve reservation law enforcement, that effort largely fails to provide meaningful reform because it perpetuate the current law enforcement scheme that leaves Indian women vulnerable to sexual assault. Remote federal officials are not in the best position—geographically, politically, or culturally—to police reservation lands. Instead, Congress needs to reassess tribal jurisdiction, permitting tribes to arrest and prosecute suspects who commit sexual assaults on tribal lands. For too long, tribes have been left powerless to defend their own people against predators who enter reservation lands and commit unspeakable violence against tribal citizens. At the heart of sovereignty is the responsibility of government to protect its citizens. It is time to permit tribes to rise to this responsibility.