Scholarship

UCLA Law Student Note on Oliphant Fix

Matthew L.M. Fletcher3 Comments

Samuel E. Ennis published his Comment, “Reaffirming Indian Tribal Court Criminal Jurisdiction over Non-Indians: An Argument for Statutory Abrogation of Oliphant,” (pdf) in the UCLA Law Review. The abstract:

This Comment challenges Oliphant v. Suquamish Indian Tribe, which precludes Indian tribal courts from criminally prosecuting non-Indians. Given that non-Indians often comprise the majority of reservation populations, and that the current upswing in tribal gambling enterprises brings scores of non-Indians onto reservations, it is no longer feasible for the federal or state governments to maintain the predominant criminal jurisdictional authority over Indian country. Non-Indian authorities are often situated far from reservations and do not have the manpower to thoroughly investigate and prosecute the high number of reservation crimes that fall under their jurisdiction post-Oliphant. In response, this Comment proposes a politically and constitutionally acceptable statute that would abrogate Oliphant and return criminal jurisdiction to the tribes. Continue reading →

Two Papers from Debora Threedy

Matthew L.M. Fletcher

Debora Threedy (Utah) has posted two papers on SSRN. The first is called “United States v. Hatahley: A Legal Archaeology Case Study in Law and Racial Conflict.” Here is the abstract:

In this case study, the author examines the ways in which race affects the progress and outcome of litigation under the Federal Tort Claims Act. The litigation is brought by individual Navajo plaintiffs against the federal government for the destruction of over a hundred horses and burros. The background conflict over access to public land is laid out, and then the article looks at the difficulty in assessing damages, the impact of the litigation on the underlying land claims, and the question of judicial bias.

The second is called “Claiming the Shields: Law, Anthropology, and the Role of Storytelling in a NAGPRA Repatriation Case Study,” and was published in the Journal of Land, Resources & Environmental Law. Here is the abstract:

This article is a case study of a repatriation dispute under the Native American Graves Protection and Repatriation Act (NAGPRA). The dispute arose when different tribal groups claimed a set of three leather shields held by the National Park Service. The article examines in depth the claims of the three groups, focusing on the disconnect between legal and anthropological determinations of cultural affiliation and using storytelling as a lens to evaluate the claims.

Paul Spruhan on the Canadian Indian Free Passage Right

Matthew L.M. Fletcher

Paul Spruhan (Navajo Nation AG’s Office) has published, “The Canadian Indian Free Passage Right: The Last Stronghold of Explicit Race Restriction in United States Immigration Law” in the North Dakota Law Review. Paul continues his long string of outstanding articles in legal history and Indian law. This one should be of special interest to immigration specialists as well.

Here is an excerpt:

[T]his article reviews the tangled legal history of the Canadian Indian free passage right to answer the question why such a racial restriction continues to exist today. Part II-A discusses the origins of Indians’ free passage right in treaties between the United States and Great Britain, and a congressional statute passed in 1928. Part II-B, through an analysis of cases and administrative policies, shows how officials struggled to define “Canadian Indian” under the 1928 act, conceptualizing Indian status at first as a “political” status defined by Canadian law and then as a “racial” status defined by American law. Part II-C then discusses the adoption of the blood quantum restriction as part of a comprehensive overhaul of American immigration law in 1952, and the apparent reasons for why Congress adopted a half-blood rule.
In section III, the article discusses problems arising after 1952 for Canadian Indians, like Peter Roberts, who must prove their amount of Indian blood to invoke their passage right. Section IV discusses the implications of the explicit racial restriction for federal Indian law and immigration law. It notes that both are premised on congressional “plenary power,” historically outside constitutional review by the United States Supreme Court. It discusses how the Supreme Court, since the 1970s, has reviewed the constitutionality of Indian legislation under equal protection principles, but has not done so for immigration legislation premised on race. Contrasting the current state of racial legislation under Congress’s powers to legislate in Indian affairs with its power to legislate concerning immigration, the article suggests that the blood quantum restriction for Canadian Indian free passage may present an opportunity to distinguish definitions in federal Indian law that use blood quantum and to challenge prior precedent exempting immigration legislation from judicial scrutiny.

Indian Law Scholarship in the Political and Legal Anthropology Review (PoLAR)

Matthew L.M. Fletcher

The most recent issue of the Political and Legal Anthropology Review (PoLAR) has a few articles of interest. First, Richard O. Clemmer’s paper, “Land Rights, Claims, and Western Shoshones: The Ideology of Loss and the Bureaucracy of Enforcement.” Here is the abstract:

This essay examines the shifting legal-political discourses surrounding the concepts “claim,””property,” and “rights” with regard to the Western Shoshone. It argues that an “ideology of loss” structured the Indian Claims Commission (ICC) proceedings. These proceedings parted Native Americans from their land, often despite existing treaties affirming land rights. Far from “settling” historical claims, the ICC proceedings actually produced and transformed Native and non-Native histories and added a new bureaucratic facet to the colonial encounter. The discussion suggests that the attempted conquest of Native Americans is not a single fact accomplished in the past but is rather an ongoing process that is driven by the American political economy. Reference to the works of contemporary scholars, as well as to those of ancestral scholars Henry Sumner Maine, Karl Marx, Max Weber, and Antonio Gramsci elucidates how a dominant legal philosophy was put into place. This philosophy permitted the wielding of legal power and undermined Native Americans’ contestation of that power. Nevertheless, indigenous peoples such as the Western Shoshones, and the lawyers working with them, have found ways to use law to exert agency in the face of this bureaucratic force—creating an at-times ambivalent or double-edged relationship with legal power.

Continue reading →

Scholarship Roundup: New Articles on American Indian Religious Freedom and Reservation Diminishment Case

Matthew L.M. Fletcher

David Bogen and Leslie F. Goldstein have published “Culture, Religion, and Indigenous People” in the Maryland Law Review. The abstract:

The Constitution treats culture, religion, and government as separate concepts. Different clauses of the First Amendment protect culture and religion from government. For several decades, the Supreme Court of the United States interpreted the First Amendment as offering religion greater protection against interference than was offered to culture, but the Supreme Court largely dissolved these constitutional differences when confronted with issues posed by the religious practices of Native Americans. With some indigenous Americans, the lines between culture, religion, and even government blur–challenging the Supreme Court’s assumptions about the Constitution. The uniqueness of the claims of Native Americans pushed the Supreme Court toward recognition of a common constitutional standard for religion and cultural protection, but also justified political exemptions targeted at tribal behavior that do not extend to other religions or cultures.

And the Washington Law Review published a comment by Charlene Koski called “The Legacy of Solem v. Bartlett: How Courts Have Used Demographics to Bypass Congress and Erode the Basic Principles of Indian Law.” Here is that abstract:

Continue reading →

Book Announcement: Raymond Austin’s “Navajo Courts and Navajo Common Law”

Matthew L.M. Fletcher3 Comments

Former Navajo Nation Supreme Court Justice Raymond D. Austin just published his incredible work, “Navajo Courts and Navajo Common Law: A Tradition of Tribal Self-Governance” with the University of Minnesota Press.

Here is the blurb from the Press’s website:

The only book on the world’s largest tribal court system and Navajo common law

The Navajo Nation court system is the largest and most established tribal legal system in the world. Since the landmark 1959 U.S. Supreme Court decision in Williams v. Lee that affirmed tribal court authority over reservation-based claims, the Navajo Nation has been at the vanguard of a far-reaching, transformative jurisprudential movement among Indian tribes in North America and indigenous peoples around the world to retrieve and use traditional values to address contemporary legal issues.

A justice on the Navajo Nation Supreme Court for sixteen years, Justice Raymond D. Austin has been deeply involved in the movement to develop tribal courts and tribal law as effective means of modern self-government. He has written foundational opinions that have established Navajo common law and, throughout his legal career, has recognized the benefit of tribal customs and traditions as tools of restorative justice.

In Navajo Courts and Navajo Common Law, Justice Austin considers the history and implications of how the Navajo Nation courts apply foundational Navajo doctrines to modern legal issues. He explains key Navajo foundational concepts like Hózhó (harmony), K’é (peacefulness and solidarity), and K’éí (kinship) both within the Navajo cultural context and, using the case method of legal analysis, as they are adapted and applied by Navajo judges in virtually every important area of legal life in the tribe.

In addition to detailed case studies, Justice Austin provides a broad view of tribal law, documenting the development of tribal courts as important institutions of indigenous self-governance and outlining how other indigenous peoples, both in North America and elsewhere around the world, can draw on traditional precepts to achieve self-determination and self-government, solve community problems, and control their own futures.

Continue reading →

Lorie Graham on International Trade and the UN Declaration

Matthew L.M. Fletcher

Lorie Graham has posted “Trade Trumps Basic Human Rights?: Why the United States Should Endorse the UN Declaration on the Rights of Indigenous Peoples” on SSRN.

Here is the abstract:

The recent uprising in the Peruvian Amazon highlights why the time is right for the United States to endorse the UN Declaration on the Rights of Indigenous Peoples. One might wonder how the endorsement of this Declaration by the United States could affect a crisis thousands of miles away in the Peruvian Amazon.

The latest crisis results from investment concessions made by Peru to various extractive industries without any consultation or consent from the Indigenous Peoples of the area. The Chair of the United Nations Permanent Forum on Indigenous Issues recently issued two emergency statements expressing her “deep concern” on “the reports of atrocities committed… against indigenous peoples in the Amazon region.” The Chair noted in particular the Peruvian Government’s obligations under international human rights law to consult and respect indigenous peoples’ rights to their lands and resources. As reported by the New York Times on June 12th, Peruvian officials attributed their recent concessions without consultation as a necessary step to bringing “Peru’s rules for investment… into line with the [U.S.-Peru] trade agreement.”

Continue reading →

Scott Taylor on Indian Taxation after Carcieri

Matthew L.M. Fletcher

Scott Taylor has posted “Taxation in Indian Country after Carcieri v. Salazar,” forthcoming in the William Mitchell Law Review.

Here is the abstract:

Federally recognized Indian tribes are governments within our federal legal system. Tribes have aboriginal sovereignty that provides them with inherent governmental powers, such as the power to tax. Tribal sovereignty also protects tribes from state interference, such as state taxation of tribal lands. Both the exercise of tribal governmental powers and the tribal immunity from state interference have a territorial component. This makes the status of Indian lands a critical inquiry into tribal/state relations. Because of the importance of land status in federal Indian law, especially in matters involving taxation, the decision of the United States Supreme Court in Carcieri v. Salazar deserves special attention. In the Carcieri case, the Court held that the Secretary of the Interior did not have the statutory authority to place lands into trust on behalf of Indian tribes that were recognized after the enactment of the Indian Reorganization Act of 1934. This article explores taxation in Indian Country after Carcier

Talk on Cherokee Syllabary at MSU

Kate Fort

Tuesday, November 24th at 11am.  116H Erickson Hall, MSU

Here are the details:

Prof. Cushman on Cherokee Syllabary

“Facing the Future: The Indian Child Welfare Act at 30” is OUT NOW!

Matthew L.M. Fletcher3 Comments

Michigan State University Press has published our edited collection, “Facing the Future: The Indian Child Welfare Act at 30.” The press website is here. The book is also available at amazon.