Scholarship

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.

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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.

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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