Scholarship – Page 138

New Paper by Alex Skibine on Indian Cultural and Religious Rights

February 4, 2010Matthew L.M. Fletcher

Alex Tallchief Skibine has posted his paper, “Culture Talk or Culture War in Federal Indian Law?“, forthcoming in the Tulsa Law Review (2010).

Here is the abstract:

In this article, I ask whether in the area of Native American cultural and religious rights federal law is more inclined towards “culture talk” meaning accommodations and compromises, or whether the attitude is more one of “culture war,” meaning geared towards confrontation and intolerance. I answer the question by focusing on how the law has treated Native American rights in four areas: use of peyote and controlled substances, possession of eagle feathers, implementation of the Native American Graves Protection Act, and protection of sacred sites. Not surprisingly, I conclude that there are both culture talks and culture wars going on. On the other hand, perhaps surprisingly, I find that among the three branches of the federal government, the courts have been the least willing to accommodate Native cultural and religious interests

Richard Delgado on the Origins of Critical Race Theory

January 29, 2010Matthew L.M. Fletcher

Richard Delgado has posted his paper, “Liberal McCarthyism and the Origins of Critical Race Theory,” on SSRN. It is forthcoming in the Iowa Law Review.

Here is the abstract:

I wrote this piece exploring some of the intellectual origins of critical race theory for a 20-year anniversary of the movement held at the University of Iowa in April, 2009. In it, I look at the role of certain prominent university officers in purging their ranks of white radicals to prepare the way, in the late sixties and early seventies, for the first large group of post-Brown minority students who were starting to arrive around that time. I show how four promising white professors, two of law, one of history, and one of criminology lost their jobs and what they did afterward. I show that they continued to teach and write about left-wing thought in the hinterlands in ways that contributed to the rise of critical race theory. As they say, it is hard to kill an idea.

University of Colorado Indian Law Symposium — Jan. 28-30, 2010

January 26, 2010Matthew L.M. Fletcher

January 28, 2010:

Book Signing: “Broken Landscape: Indians, Indian Tribes and the Constitution”

Leading scholar in American Indian law, Professor Frank Pommersheim will talk about his new book, “Broken Landscape: Indian Tribes and the Constitution,” which is a sweeping chronicle of Indian tribal sovereignty under the U.S. Constitution and the way that legal analysis and practice have interpreted and misinterpreted tribal sovereignty since the nation’s founding. After demonstrating that the federal government has repeatedly failed to respect tribal sovereignty, he closes with a proposal for a constitutional amendment that would reaffirm tribal sovereignty and accord Indian tribes and Indian people the respect and dignity that are their due. Book signing and reception to follow.

January 29-30, 2010:

The Next Great Generation of American Indian Law Judges

This conference will convene federal, state and tribal judges, practitioners, and academics to engage in a lively and open discussion about the future of federal Indian law in the judiciary. Academics, practitioners, students, and interested members of the public are welcome. CLE credits will be applied for.

Agenda here: The Next Great Generation Agenda Jan 2010

Ann Tweedy on Indian People and the Right to Self-Defense

January 26, 2010Matthew L.M. Fletcher

Ann Tweedy has posted “How the Tentacles of America’s Racialized History Eviscerate Indian Tribes’ Right to Self-Defense” on SSRN. Here is the abstract:

This article looks at tribal actions of defending their homelands in colonial and early American history and argues that their actions in self-defense were popularly perceived as acts of aggression, which in turn led to their being defined as ignoble savages in caselaw and in society generally. This imputation of savagery continues to harm tribes because, as the scholar Robert Williams has argued, the cases defining them as “savages” and denigrating their sovereign rights are still cited to support abrogations of tribal sovereignty. Thus, although the language of savagery usually is not itself cited, the cases, and the racialized ideas that they embody, which can be traced to tribes’ early acts of self-defense, continue to be used against tribes.

The article first examines historical evidence of tribes engaging in acts of self-defense in order to expose the fallacy of the portrayal of tribes as savages. It then examines the use of the imagery of savagism in Supreme Court and other caselaw and discusses recent cases that rely on the earlier cases containing this imagery and that abrogate tribal rights. The goal is to expose the popular understanding of tribal roles in early American history as erroneous and thereby reveal the baselessness of the language of savagery. This, in turn, brings to light the injustice of continuing to rely on cases that portray tribes as savages. Once this racism comes to be more widely understood and these racialized precedents are rejected, the older cases will no longer be used in contemporary opinions to deprive tribes of their remaining sovereign rights. Thus, tribes will no longer be punished for past acts of self-defense.

I’ve had a chance to read an earlier draft of this paper. Very interesting!

New Scholarship on Williams v. Lee

January 25, 2010Matthew L.M. Fletcher

Dewi I. Ball has posted “Williams v. Lee (1959) – 50 years later: A Re-assessment of One of the Most Important cases in the Modern-era of Federal Indian Law” on BEPress (download here). Here is the abstract:

It is 50 years since the landmark decision of Williams v. Lee was handed down by Justice Hugo Lafayette Black and the United States Supreme Court. At the time, the case was a watershed event that signified the legal resurgence of Native America in Federal Indian law and in particular, the renaissance of the Indian sovereignty doctrine, inherent tribal sovereignty and the principles of Worcester v. Georgia. There can be no doubt that the eloquently constructed opinion by Hugo Black brought positive news for all Native Americans, especially in light of the process of Termination that was being pursued by Congress and the United States President. However, against this nascent sense of renewal and hope, the Williams case also began what became an insidious trend in the decision-making process of the U.S. Supreme Court; the weakening of the Indian sovereignty doctrine and some of the key attributes of tribal power; namely civil, criminal and taxation authority. Much of the academic literature in the field of Federal Indian law and Native American studies points to the importance of the Williams case as one which strengthened Native American sovereignty but other academics, from the 1990s, have questioned whether the case was an overall success for the authority of Native Americans on their reservations in the complexity of what is Federal Indian law. Although this article will analyze the re-affirmation of the Indian sovereignty doctrine and inherent tribal sovereignty in the Williams opinion, through the use of archival materials from the private papers of U.S. Supreme Court Justices, it will also be the first article in Native American studies to examine behind the scenes discussions and processes used in the Williams case and argue that the weakening of the Indian sovereignty doctrine began in 1959.

Scholarship on this case is burgeoning. Hon. Raymond Austin’s book “Navajo Courts and Navajo Common Law” touches upon the case from the point of view of the Navajo Nation government, which treated it as a kind of test case.

This work parses through the papers of Justice Brennan for an inside look at how the Court decided the case. A sobering work well worth reading.

Third National People of Color Legal Scholarship Conference Calls for Papers

January 23, 2010Matthew L.M. Fletcher

Please find below various calls for papers & panels for the Third National People of Color Legal Scholarship Conference, to be held Sept. 9-12, 2010 at Seton Hall Univ. Law School. You will find a general call (deadline March 12, 2010), and then two competition calls (deadline June 15, 2010), one for students and the other for junior faculty. Please distribute all of these as widely as possible, including within your schools, forwarding to promising students, etc.

General Call for Papers (pdf)

Junior Faculty Writing Competition

Student Writing Competition

Information about the conference can be found at: http://law.shu.edu/thirdnationalpoc.

Ezra Rosser on Tribal Natural Resources and Economic Development

January 23, 2010Matthew L.M. Fletcher

Ezra Rosser, Ahistorical Indians and Reservation Resources, 40 Envtl. L. __ (forthcoming 2010). http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1539703. The abstract is below:

This article is an in-depth exploration of the impacts of an Indian tribe deciding to pursue environmentally destructive forms of economic development. The article makes two principal contributions. First, it establishes the Navajo Nation’s decision-making role. Prior mineral resource forms of development may have been formally approved by the tribe but the agreements did not truly belong to the Navajo Nation. Extensive research into earlier agreements shows the heavy influence of the federal government and mining interests historically. Existing scholarship on reservation environmental harm tends to deflect tribal responsibility, attributing such decisions to outside forces. Without denying the challenges the Navajo Nation is facing, the article calls for recognition, despite the romanticism that surrounds Indians and the environment, of tribal agency and responsibility for the proposed environmental destruction. Second, I argue that environmental organizations that make use of federal environmental review processes are complicit in the systematic denial of Indian sovereignty that federal primacy entails. Although there is a strong theoretical argument that the only limits appropriate for Indian nations are those of nation-states under international law, the Article concludes that the relationship between environmental organizations and Indian nations ought to be guided by international human rights law.

Philip Bennett on Angela Riley/Stephen Osborn re: American Indian Cultural Property Rights

January 19, 2010Matthew L.M. Fletcher

Philip Bennett has posted Native Americans and Intellectual Property: The Necessity of Implementing Collective Ideals into Current United States Intellectual Property Laws on SSRN.

Here is the abstract:

Native Americans have a very distinct and historic culture. Their tribal stories, dances, etc., are often imitated in all walks of life and embody each specific tribe. While some people are merely paying homage to a different culture, others are simply appropriating this culture for their own benefit. Under the current intellectual property regime in place in the United States, Native Americans are often left without recourse against such infringers. This is mainly due to the lack of recognition of collective intellectual property rights and other features specific to Native American intellectual property. Without a change in the scope of the current intellectual property laws, Native American cultural property will continue to be appropriated in an unfair way, which would allow infringers to escape punishment. Unless a complete statutory exemption is provided for Native American cultural property that recognizes its distinct characteristics, it will continue to suffer the same results that it has throughout time.

Forthcoming Book on ICWA by Barbara Atwood

January 15, 2010Matthew L.M. Fletcher4 Comments

Barbara Atwood, a prominent commentator on the Indian Child Welfare Act, soon will be publishing her book, “Children, Tribes, and States: Adoption and Custody Conflicts over American Indian Children” with Carolina Academic Press. She has posted the first chapter of the book on SSRN.

Here is the abstract:

This Introduction to Children, Tribes, and States: Adoption and Custody Conflicts over American Indian Children (Carolina Academic Press forthcoming 2010) provides an overview of the book but begins with the story of my representation of a Northern Cheyenne woman in a child custody dispute two decades ago – a professional experience that fueled my longstanding interest in child welfare and custody law affecting American Indian and Alaska Native children. The book examines the policies driving the Indian Child Welfare Act of 1978 against the backdrop of current ICWA controversies in state courts. In addition, it explores tribal-state competition in inter-parental custody disputes involving Indian children, a contentious arena that falls outside the purview of ICWA and implicates federal, state, and tribal jurisdictional premises. The book emphasizes the emotional and political costs of jurisdictional battles in both ICWA and non-ICWA cases. I propose jurisdictional guidelines for state and tribal courts that build on respect for one another’s legitimacy and competence. At the same time, I develop analytical frameworks to address Native children’s individualized identities, perspectives, and needs.