Scholarship

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

Matthew 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

Matthew 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

Matthew 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

Matthew 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

Matthew 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

Matthew 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.

Natural Resources Journal (UNM) Symposium on New Mexico Land Grants

Matthew L.M. Fletcher

Here:

Symposium on
Land Grants and the Law:
The Disputed Legal Histories
of New Mexico’s Land Grants

Introduction ix
Kristina G. Fisher

Essay
Persistence and Disintegration: New Mexico’s Community Land Grants in Historical Perspective 847
Manuel García y Griego

Articles
Righting the Record: A Response to the GAO’s 2004 Report “Treaty of Guadalupe Hidalgo: Findings and Possible Options Regarding Longstanding Community Land Grant Claims in New Mexico” 857
David Benavides & Ryan Golten

Appendix to Righting the Record: Land Grant Speculation in New Mexico During the Territorial Period 927
David Correia

Continue reading →

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.