Scholarship

Ezra Rosser Book Review of Ray Austin’s Book on Navajo Common Law

Matthew L.M. Fletcher

Ezra Rosser has posted Displacing the Judiciary: Customary Law and the Threat of a Defensive Tribal Council, http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1591153, forthcoming 35 Am. Indian L. Rev. __ (2010) to SSRN.  The abstract is below:

Displacing the Judiciary: Customary Law and the Threat of a Defensive Tribal Council is a brief article framed as a book review of RAYMOND D. AUSTIN, NAVAJO COURTS AND NAVAJO COMMON LAW: A TRADITION OF TRIBAL SELF-GOVERNANCE (2009). Raymond Austin is a former Justice of the Navajo Supreme Court and his book is an important contribution to Indian law and tribal law scholarship that should be of interest to general readers. Austin shows the origins of Navajo customary law norms and how the Navajo court system has incorporated those norms into Navajo common law. Although the majority of the article is dedicated to reviewing NAVAJO COURTS AND NAVAJO COMMON LAW, I also discuss the an ongoing tribal power struggle and the related effort of the Navajo Tribal Council to block the Navajo courts from using customary law.

Student Note on the UN Declaration of Rights of Indigenous Peoples

Matthew L.M. Fletcher

David Fautsch has published “An Analysis of Article 28 of the United Nations Declaration on the Rights of Indigenous Peoples, and Proposals for Reform” in the Michigan Journal of International Law.

Two New Books by John Borrows from University of Toronto Press

Matthew L.M. Fletcher

John’s work is very thought-provoking, especially for American Indian law scholars and practitioners seeking to discover and perhaps utilize Indian common law, customs and traditions.

1. Canada’s Indigenous Constitution

Canada’s Indigenous Constitution reflects on the nature and sources of law in Canada, beginning with the conviction that the Canadian legal system has helped to engender the high level of wealth and security enjoyed by people across the country. However, longstanding disputes about the origins, legitimacy, and applicability of certain aspects of the legal system have led John Borrows to argue that Canada’s constitution is incomplete without a broader acceptance of Indigenous legal traditions.

With characteristic richness and eloquence, John Borrows explores legal traditions, the role of governments and courts, and the prospect of a multi-juridical legal culture, all with a view to understanding and improving legal processes in Canada. He discusses the place of individuals, families, and communities in recovering and extending the role of Indigenous law within both Indigenous communities and Canadian society more broadly.

This is a major work by one of Canada’s leading legal scholars, and an essential companion to Drawing Out Law: A Spirit’s Guide.

2. Drawing Out Law: A Spirits’ Guide

The Anishinabek Nation’s legal traditions are deeply embedded in many aspects of customary life. In Drawing Out Law, John Borrows (Kegedonce) skillfully juxtaposes Canadian legal policy and practice with the more broadly defined Anishinabek perception of law as it applies to community life, nature, and individuals.

This innovative work combines fictional and non-fictional elements in a series of connected short stories that symbolize different ways of Anishinabek engagement with the world. Drawing on oral traditions, pictographic scrolls, dreams, common law case analysis, and philosophical reflection, Borrows’ narrative explores issues of pressing importance to the future of indigenous law and offers readers new ways to think about the direction of Canadian law.

Shedding light on Canadian law and policy as they relate to Indigenous peoples,Drawing Out Law illustrates past and present moral agency of Indigenous peoples and their approaches to the law and calls for the renewal of ancient Ojibway teaching in contemporary circumstances.

This is a major work by one of Canada’s leading legal scholars, and an essential companion to Canada’s Indigenous Constitution.

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“Rebooting Indian Law in the Supreme Court” Paper Available

Matthew L.M. Fletcher1 Comment

You can read my paper, “Rebooting Indian Law in the Supreme Court,” on SSRN here.

The paper is an edited version of the 2010 Dillon Lecture delivered at the University of South Dakota School of Law on February 18, 2010, and will be published in the South Dakota Law Review.

Here is the abstract:

This talk, delivered as the 2010 Dillon Lecture at the University of South Dakota School of Law, argues Indian nations and advocates – and the federal judiciary – view Indian law through a reactionary lens, deciding major issues as the cases arise. There are a few mini-movements, long-term strategies on a particular issue, such as the Cobell litigation, the fishing rights cases of the 1960s and 1970s, and perhaps a few others. But even those series of cases could hardly be called a strategic “movement.” As a result of a lack of a viable long-term strategy, I posit that tribal interests are and will continue to be punching bags in Supreme Court litigation.

I offer suggestions on how to reboot federal Indian law in the federal judiciary and the Supreme Court. I will discuss cases or lines of cases that demonstrate how Indian nations can persevere in the Supreme Court, and suggest potential long-term strategies for tribal interests to pursue.

Comments welcome, as this is still a draft.

Joe Singer on the Original Acquisition of Property

Matthew L.M. Fletcher

Joseph William Singer has posted his paper, “Original Acquisition of Property: From Conquest and Possession to Democracy and Equal Opportunity,” forthcoming from the Indiana Law Journal, on SSRN.

Here is the abstract:

First possession is said to be the root of title but the first possession theory suffers from two major defects. First, land titles in the United States originate in acts of conquest, and because conquest denies the rights of first possessors, land titles in the U.S. do not have a just origin. We should recognize the unjust origins of our land titles and recognize that the democratic way to deal with the legacies of conquest is to refuse to engage in further acts of conquest. This requires recognizing the pre-existing sovereignty and persisting property rights of Indian nations. Second, first possession is justified only if others have equal opportunities to acquire property. The equal opportunity principle is not only one that is crucial to justifying and limiting the historical rights of first possessors but constitutes a core moral principle that must be satisfied in each generation. Property rights are therefore justified today only if they are defined and regulated in a manner consistent with the norms that define a free and democratic society which treats each person with equal concern and respect. Property has legitimate origins not in first possession or conquest but in the practice of democracy and the ideal of equal opportunity. This does not mean that possession is irrelevant; it means that its moral significance must be judged in light of the democratic ideal of equal opportunity.

Bethany Berger’s History of Williams v. Lee

Matthew L.M. Fletcher

Bethany Berger has posted “Williams v. Lee and the Debate over Indian Equality,” forthcoming in the Michigan Law Review, on SSRN. Here is the abstract:

Williams v. Lee (1959) created a bridge between century-old affirmations of the immunity of Indian territories from state jurisdiction and the tribal self-determination policy of the twentieth century. It has been called the first case in the modern era of federal Indian law. Although no one has written a history of the case, it is generally assumed to be the product of a timeless and unquestioning struggle of Indian peoples for sovereignty. This Article, based on based on interviews with the still-living participants and examination of the congressional records, Navajo council minutes, and Supreme Court transcripts, records, and justice’s notes, reveals an unexpected complexity in both Indian and non-Indian contributions to the case and the era in federal Indian policy from which it emerged.

This history shows that both Williams and the policy developments that surrounded it emerged from consensus about the need for Indian equality and equal opportunity in the 20th century, but Indian and non-Indian debate about whether equality meant full assimilation and termination of the special legal status of tribes, or continued respect for the ability of Indian peoples to govern themselves. It makes this debate concrete through the story of the Williams family, for whom the state collection action and the resulting seizure of the family sheep herd struck at the heart of Navajo lifestyle and culture. It further connects the case to the momentous debates over African American integration generated with Brown v. Board of Education (1954) and Cooper v. Aaron (1958). Ultimately, I argue, Williams v. Lee and the self-determination movement that followed it represent a choice by American Indians to insist that respect for tribal status was necessary to ensure Indian equality in the modern era. This history and its results provide an important lesson today as federal Indian policies are increasingly attacked as fundamentally inconsistent with fairness and equality.

Elizabeth Barrett Ristroph on Climate Change and Alaska Tribes’ Subsistence Rights

Matthew L.M. Fletcher

Elizabeth Barrett Ristroph of the North Slope Borough Legal Department has posted “Alaska Tribes’ Melting Subsistence Rights” on BEPress.

Here is the abstract:

Climate change impacts subsistence-dependent Alaska Natives more than Lower 48 Natives and other United States populations because (1) the effects of climate change on land and wildlife are more severe in Alaska than elsewhere in the U.S.; and (2) compared to Lower 48 tribes, Alaska tribes have less control over land and wildlife needed for subsistence.

Carole Goldberg on Justice Ginsburg’s Indian Law Decisions

Matthew L.M. Fletcher1 Comment

Carole Goldberg published “Finding the Way to Indian Country: Justice Ruth Bader Ginsburg’s Decisions in Indian Law Cases,” in the Ohio State Law Journal.

This, along with Al Ziontz’s recollection of the ACLU‘s split over how to approach Santa Clara Pueblo v. Martinez during then-Professor Ginsburg’s tenure as head of the ACLU’s Women’s Rights Project, is critical reading.

Saginaw Valley St. Univ. Barstow Lecture on Indian Law — April 1

Matthew L.M. Fletcher

Here (the paper is here):

Barstow Lecturer to Explain History of Indian Land Law

Saginaw Valley State University will host a lecture by American Indian legal expert Matthew Fletcher Thursday, April 1 at 7:30 p.m. in the Rhea Miller Recital Hall. In his talk, he will explain how a 2007 decree finally ended a 170-year-old dispute regarding Michigan Indians’ land rights. The lecture is part of SVSU’s Barstow Humanities Seminar series.

Fletcher says the delay owes its origins to miscommunication. In 1836, five Michigan Indian tribes entered into a treaty with the state and federal governments over “inland rights” – a treaty in which the Indians ceded their land in exchange for defined areas where they could fish, hunt and gather. The problem was that two of the treaty’s key words – “occupancy” and “settlement” – had vastly different meanings in the local Indian language. Relying on their understanding, the Indians agreed to the treaty.

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National Law Journal: “Indians Try to Keep Cases Away from High Court”

Matthew L.M. Fletcher1 Comment

From the NLJ (downloadable version):

Indians try to keep cases away from high court
Marcia Coyle
March 29, 2010

The Supreme Court has not granted review of any Indian law cases in the current term, but you won’t hear complaints from the Tribal Supreme Court Project.

Most lawyers work hard to keep their lower court victories out of the Supreme Court, but sometimes, fearing hostile justices, they look to avoid the high court even when they have lost.

That’s the position in which the tribal project, a joint venture of National Congress of American Indians and the Native American Rights Fund, finds itself today as it painfully considers its zero-for-five record before the Roberts Court.

“We view this Court as not favorable on our issues,” explained Richard Guest, senior staff attorney at the Native American Rights Fund.

Last term, recalled Guest, the justices granted review in three Indian law cases. “We had prevailed in the lower courts in all three and then lost all three in the Supreme Court,” he said. “We did a little bit better than some folks — environmentalists lost five cases which they had won in the lower courts — but we are all batting zero.”

The Tribal Supreme Court Project is part of the Tribal Sovereignty Protection Initiative and was formed in 2001 in response to a series of negative decisions affecting tribal sovereignty in the mid-1990s, according to Guest.

“We had a winning percentage from 2001 to 2005 but now we’re back to a situation where we are zero for five,” he said.

There is a concern that certain justices have an agenda in Indian law cases, he added, noting that Chief Justice John Roberts Jr. has been quoted as asking what is so special about Indian tribes and their relationship to the United States.

“If this Court grants review, it appears to not only look to decide the case in front of it, but to extend any ruling to future cases,” said Guest.

His concern gets some support from a 2009 empirical study done by Matthew Fletcher of Michigan State University College of Law: “Factbound and Splitless: Certiorari and Indian Law.” From 1959, considered the beginning of the modern era of federal Indian law, to 1987, when the Supreme Court decided the major Indian gaming case, California v. Cabazon Band of Mission Indians, reported Fletcher, Indians and Indian tribes won nearly 60 percent of federal Indian law cases decided by the Supreme Court. But since Cabazon, tribal interests have lost more than 75 percent of their cases.

Fletcher, who studied more than 160 cert petitions filed between 1986 and 1994, concluded that the Court’s certiorari process itself is a barrier to justice for tribes and individual Indians. Cert pool memos by the Court’s law clerks showed, he reported, that clerks overstate the merits and importance of petitions filed by states against tribal interests, while understating the merits and importance of tribal petitions.

“Tribal petitions, often involving the interpretation of Indian treaties or complicated and narrow common law questions of federal Indian law, are readily deemed ‘factbound’ and ‘splitless,'” explained Fletcher. “Conversely, the cert pool values and perhaps better understands the interests of state and state agency petitions, as well as the way the pool’s audience (the Court) understands and values the interests of states. Thus, the pool’s recommendations favor states and state agencies far more. The result, frankly, is that tribal petitions on a question will almost never be favored, whereas state petitions on the same question will often be favored.”

Fletcher concluded, “While the admonition that tribal interests should do their very best to avoid the Supreme Court is not new, the findings of this study also demonstrate with increased force and clarity that Supreme Court adjudication is an extraordinarily hazardous process for tribal interests.”

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