Scholarship

Bruce Johnsen on Historic Indian Conservation of the Pacific Northwest Fishery

Matthew L.M. Fletcher

Bruce Johnsen has posted an abstract of his interesting article, “Salmon, Science, and Reciprocity on the Northwest Coast,” on SSRN. Full text article here.

The abstract:

Severe depletion of many genetically distinct Pacific salmon populations has spawned a contentious debate over causation and the efficacy of proposed solutions. No doubt the precipitating factor was overharvesting of the commons beginning along the Northwest Coast around 1860. Yet, for millenia before that, a relatively dense population of Indian tribes managed salmon stocks that have since been characterized as “superabundant.” This study investigates how they avoided a tragedy of the commons, where, in recent history, commercial ocean fishers guided by scientifically informed regulators have repeatedly failed. Unlike commercial fishers, the tribes enjoyed exclusive rights to terminal fisheries enforced through rigorous reciprocity relations. The available evidence is compelling that they actively husbanded their salmon stocks for sustained abundance.

Anishinaabemowin and the Interpretation of Michigan Indian Treaties

Matthew L.M. Fletcher

I just posted a draft of my paper, “‘Occupancy’ and ‘Settlement’: Anishinaabemowin and the Interpretation of Michigan Indian Treaties” on SSRN. Any constructive feedback would be helpful.

Here is the abstract:

The 2007 Consent Decree in United States v. Michigan, a major victory for the tribal interests, recognized that the lands in ownership by the state, federal, and tribal governments – vast swaths of Michigan – would stand in for the lands not yet “required for settlement.” The Michigan Indians’ “privilege” to continued “occupancy” acquired legal determinacy. This short essay examines how Michigan Indian treaty negotiators would have understood the meaning of the words “settlement” and “occupancy,” and how that understanding strongly influenced the land base in which Michigan Indians can continue to exercise their inland treaty rights in accordance with the 1836 Treaty.

Jack Balkin on the Indian Commerce Clause

Matthew L.M. Fletcher10 Comments

Jack Balkin’s new paper, “Commerce,” (noted here at Legal Theory Blog and of course here), has very interesting commentary on the Indian Commerce Clause.

In short, Prof. Balkin argues that the word “commerce” in the Constitution means more than mere trade or economic activity, but instead should be read to mean all “interaction.” He discusses the Indian Commerce Clause at length as an example of how the Framers and the original interpreters of the Constitution understood “commerce” to mean much more than mere trade or economic activity. Followers of Indian law may recall that this has significant import to Indian affairs, as the Court in United States v. Kagama asserted that the Indian Commerce Clause could not be a source of Congressional authority to enact the Major Crimes Act, a largely discarded view that Justice Thomas attempted to resurrect in his United States v. Lara concurrence.

Of note on pages 30-31, Balkin cites the 1790 Trade and Intercourse Act as evidence of this broader interpretation and understanding, something many others from Bob Clinton and Akhil Amar have done as well:

One of the first things the new government did, for example, was to regulate its interactions with the Indian tribes, through a series of Trade and Intercourse Acts beginning in 1790. The title of these acts was apt: they not only required licenses for trade with Indians, but also punished “any crime upon, or trespass against, the person or property of any peaceable and friendly Indian or Indians.”78 These crimes did not necessarily involve trade or even economic activity; they could involve assault, murder, or rape. Note as well that even if the point of regulating these crimes was because of their likely effects on trade with the Indian tribes, the activities regulated were themselves not economic. And note finally that the 1790 and 1793 Trade and Intercourse Acts could not be justified as legislation designed to enforce treaties; they applied to crimes against Indians, whether or not they had signed treaties with the United States.79

The last sentence is a crucial point, as some conservative original meaning scholars have suggested that the 1790 Act was broader than trade or economic activity because it was intended to implement treaty language, thereby defeating whatever evidence the 1790 Act represented in the original meaning of the commerce clause. Continue reading →

Fletcher, Fort, and Singel on Michigan Indian Country Cross-Deps

Matthew L.M. Fletcher

Indian Country Law Enforcement and Cooperative Public Safety Agreements
Michigan Bar Journal, Vol. 89, p. 42, February 2010, MSU Legal Studies Research Paper No. 08-02
Matthew L. M. Fletcher , Kathryn Fort and Wenona Singel

Aliza Organick on Tribal Law and Best Practices in Legal Education

Matthew L.M. Fletcher

Aliza Organick has posted her article, “Tribal Law and Best Practices in Legal Education: Creating a New Path for the Study of Tribal Law,” on SSRN. The article appears in a recent issue of the Kansas Journal of Law and Public Policy.

Here is the abstract:

Teaching culture in the law school classroom is enormously challenging. Teaching culture to law students in a clinical setting poses additional challenges in that we are not solely teaching the theoretical components of cultural competency, we are asking students to put them into practice. Law schools currently do not provide an effective framework for students to do this. By introducing tribal law into the curriculum, law schools begin the process of introducing students to the cultural component of legal theory and practice in culturally distinct communities. Law schools can begin this process by teaching the three-sovereign system endorsed by Justice O’Connor. In addition law schools should consider ways to provide a cross-cultural practice opportunity such as practice in tribal communities. Best practices provide a framework for developing an overall methodology for creating an institutional model that supports inclusion of this topic across the curriculum. This article explores the importance of introducing law students to tribal law and the culture of other local legal systems early and often, identifies key components of best practices that establish a framework for teaching culture in general and for teaching it alongside tribal law in particular, and finally identifies a few teaching techniques that may be helpful to those interested in trying cultural education.

Prof. Fletcher to Deliver USD Dillon Lecture

Kate Fort

From the Sioux City Journal:

USD Dillon Lecture to Address Indian Law

By Nick Hytrek Journal staff writer | Posted: Wednesday, February 10, 2010 10:00 am |

VERMILLION, S.D. — Michigan State University law professor Matthew L.M. Fletcher will present the University of South Dakota’s annual Dillon Lecture, “Rebooting Indian Law in the Supreme Court.”

Fletcher’s lecture is set for 7 p.m. Feb. 18 in the law school courtroom.

In addition to teaching courses on Indian law, Fletcher sits as an appellate judge for various tribes.

The Dillon Lecture is being presented in conjunction with the South Dakota Law Review Symposium, scheduled for 10 a.m. Feb. 18 in the law school courtroom. In addition to the symposium, USD’s Native American Law Students Association is hosting the 2010 National NALSA Moot Court Competition Feb. 19-20.

The Dillon Lecture is named for Charles Hall Dillon, a pioneer South Dakota lawyer and South Dakota Supreme Court justice who died in 1928.

Northwest Indian Bar Association Winter 2009-2010 Newsletter

Matthew L.M. Fletcher

Here.

Articles on the recovery act, Carcieri v. Salazar, and Allen Sanders.

Michigan Bar Journal Special Indian Law Issue — UPDATED!

Matthew L.M. Fletcher2 Comments

Here:

State Court Administrative Office – Court Improvement Program: Indian Child Welfare Act Forum Remarks, October 6, 2008
by Justice Michael F. Cavanagh

Indian Children and Termination of Parental Rights: Michigan Supreme Court Takes a Step in the Right Direction in In Re Lee
by Angel Sorrells, Cami Fraser, Thomas Myers, and Aaron Allen

Proceed with Prudence: Advising Clients Doing Business in Indian Country
by R. Lance Boldrey and Jason Hanselman

Indian Gaming and Tribal Self-Determination: Reconsidering the 1993 Tribal-State Gaming Compacts
by Zeke Fletcher

Indian Country Law Enforcement and Cooperative Public Safety Agreements
by Matthew L. M. Fletcher, Kathryn E. Fort, and Wenona T. Singel

And I completely missed this article in the same issue (many apologies to the authors!):

In the Law: Keeping Current with American Indian Legal Resources
 by Jan Bissett and Margi Heinen

Fletcher Talk before UCLA Critical Race Studies Program Today

Matthew L.M. Fletcher2 Comments

I’ll be speaking at UCLA today about my book project tentatively titled, “Consent and Resistance: American Indians and Consent Theory.”

Here’s the flyer for the entire speaker series:

CRS Native Speaker Series flyer

Aviva Orenstein on How Evidence Rules Disproportionately Affect Indian Sexual Assault Defendants

Matthew L.M. Fletcher1 Comment

Aviva Orenstein has published “Propensity or Stereotype? A Misguided Evidence Experiment in Indian Country,” in the Cornell Journal of Law and Public Policy.

Here is the abstract:

In a significant break with traditional evidence rules and policies, the Federal Rules of Evidence concerning rape and child abuse, Rules 413 and 414, permit the government to admit the accused’s prior sexual misconduct as evidence of character and propensity. Although these rules have been roundly criticized, insufficient attention has been paid to the fact that in allowing propensity evidence for federal sex offenses (as opposed to offenses under state law), these rules disproportionately affect one distinct civilian population: Indians.