Scholarship

Erwin Chemerinsky’s Review of the 2008 Supreme Court Term

Matthew L.M. Fletcher

Here, published in the Green Bag.

An excerpt:

CTOBER TERM 2008 LACKED the blockbuster decisions
of the prior Term, in which the Court ruled that the
Second Amendment protects a right of individuals to
possess firearms apart from militia service,1 held a key
portion of the Military Commissions Act of 2006 to be an unconstitutional
suspension of the writ of habeas corpus,2 and concluded
that the death penalty for child rape is cruel and unusual punishment.
3 But the recently completed Term contained an exceptionally
large number of decisions that changed the law in areas that affect
lawyers and judges in their daily work. Strikingly, practically all of
these rulings – in areas such as the federal-court pleading standards
in civil cases, the scope of the exclusionary rule, and the protections
from employment discrimination – moved the law in a more conservative
direction.
There is an easy explanation

OCTOBER TERM 2008 LACKED the blockbuster decisions of the prior Term, in which the Court ruled that the Second Amendment protects a right of individuals to possess firearms apart from militia service, held a key portion of the Military Commissions Act of 2006 to be an unconstitutional suspension of the writ of habeas corpus, and concluded that the death penalty for child rape is cruel and unusual punishment. But the recently completed Term contained an exceptionally large number of decisions that changed the law in areas that affect lawyers and judges in their daily work. Strikingly, practically all of these rulings – in areas such as the federal-court pleading standards in civil cases, the scope of the exclusionary rule, and the protections from employment discrimination – moved the law in a more conservative direction.

Student Note on the Arizona Snowbowl Case

Matthew L.M. Fletcher

Here is “Making Snow in the Desert: Defining a Substantial Burden under RFRA,” published in the Ecology Law Quarterly. An excerpt:

Judge Fletcher’s opinion in Navajo Nation reflected a determined effort to
reconcile the statutory provisions of RFRA with the Supreme Court’s
ethnocentric decision in Lyng. Unfortunately, as the en banc panel concluded,
RFRA was not intended to remedy the disparate treatment of sacred site claims
in free exercise doctrine and thus, it does not provide any more protection for
these claims than the Free Exercise Clause. Both of the Ninth Circuit’s
decisions, however, may ultimately lead to a more equitable framework for
analyzing free exercise challenges.

Judge Fletcher’s opinion in Navajo Nation reflected a determined effort to reconcile the statutory provisions of RFRA with the Supreme Court’s ethnocentric decision in Lyng. Unfortunately, as the en banc panel concluded, RFRA was not intended to remedy the disparate treatment of sacred site claims in free exercise doctrine and thus, it does not provide any more protection for these claims than the Free Exercise Clause. Both of the Ninth Circuit’s decisions, however, may ultimately lead to a more equitable framework for analyzing free exercise challenges.

New Papers about the Solicitor General

Matthew L.M. Fletcher

How fortuitous that my paper on the Solicitor General’s strange lack of success defending tribal interests before the Supreme Court becomes available the same day Patricia Millett’s paper on stategies for obtaining amicus help from the Solicitor General’s Office goes up on SCOTUSBlog!?!

Here’s the write-up on Ms. Millett’s paper from SCOTUSBlog:

Patricia Millett recently published this article (PDF download) in the Tenth Anniversary edition of the Journal of Appellate Practice and Process (Vol. 10, No. 1; Spring 2009).  It addresses the Supreme Court’s unique practice — not mentioned in the Court’s rules — of calling for the views of the Solicitor General at the certiorari stage, and the process of obtaining amicus support from the Solicitor General in such cases, as well as in cases in which review has been granted.

And my abstract (paper download here):

This short paper prepared for the 2009 Federal Bar Association’s Annual Meeting offers preliminary results of a study of the OSG in the Supreme Court from the 1998 through the 2008 Terms. I study the OSG’s success rates before the Court in every stage of litigation, from the certiorari process, the Court’s calls for the views of the Solicitor General, and on the merits of the cases that reach final decision after oral argument.

The paper begins with the preliminary data on the OSG’s success rate in Indian law cases. The data demonstrates that the OSG retains its success rate in both the certiorari process and on the merits when the United States is in opposition to tribal interests. But when the OSG sits as a party alongside tribal interests, and especially when the OSG acts as an amicus siding with tribal interests, the OSG’s success rate drops dramatically.

ACS Advance Publishes Tribal Domestic Violence Paper

Matthew L.M. Fletcher

My paper on domestic violence in Indian Country will appear in the American Constitution Society publication “Advance” Spring 2009 edition.

Marren Sanders on TAS Status for Indian Tribes and the Clean Water Act

Matthew L.M. Fletcher

Marren Sanders has posted “Clean Water in Indian Country: The Risks (and Rewards) of Being Treated in the Same Manner as a State” on SSRN. Here is the abstract:

This article examines the “Treatment as a State” (TAS) provision of the Clean Water Act and the requirements that Native nations must satisfy in order to exercise their sovereign right to environmental regulation within the reservation. To gain TAS status and set their own water quality standards (WQS), Native nations must prove that they have a functioning tribal government with authority and capacity to regulate. Therefore, tribes considering taking the TAS step must critically evaluate their internal capacity to do so. The establishment of tribal WQS offers significant advantages to Native nations, but also very real risks as they face legal and legislative uncertainty and jurisdictional challenges. It concludes that despite a history of colonization and assimilation, tribes can and are playing a critical role in the sustainability of clean water in Indian country. Building infrastructure is not an easy task. However, for many tribes the challenge may be worth the risks.

“American Indian Education” Reviewed in American Indian Culture and Research Journal

Matthew L.M. Fletcher

My book “American Indian Education: Counternarratives in Racism, Struggle, and the Law” received a very nice review from Cynthia Kasee of Winston-Salem State University. The review appeared in UCLA’s American Indian Culture and Research Journal.

Kasee Review

Two Papers by Angelique EagleWoman on SSRN

Matthew L.M. Fletcher

The Eagle and the Condor of the Western Hemisphere: Application of International Indigenous Principles to Halt the United States Border Wall
Idaho Law Review, Vol. 45, No. 3, pp. 1-18, 2009
Angelique EagleWoman
University of Idaho – College of Law

Tribal Nation Economics: Rebuilding Commercial Prosperity in Spite of U.S. Trade Restraints – Recommendations for Economic Revitalization in Indian Country
Tulsa Law Review, Vol. 44, No. 1, pp. 383-426, 2009
Angelique EagleWoman

New Book on Great Lakes Indians’ Resistance in the Early Reservation Years

Matthew L.M. Fletcher

Edmund Danzinger has published “Great Lakes Indian Accommodation and Resistance during the Early Reservation Years, 1850-1900” with University of Michigan Press. Here is the website.

And the description:

During the four decades following the War of 1812, Great Lakes Indians were forced to surrender most of their ancestral homelands and begin refashioning their lives on reservations. The challenges Indians faced during this period could not have been greater. By century’s end, settlers, frontier developers, and federal bureaucrats possessed not only economic and political power but also the bulk of the region’s resources. It is little wonder that policymakers in Washington and Ottawa alike anticipated the disappearance of distinctive Indian communities within a single generation. However, these predictions have proved false as Great Lakes Indian communities, though assaulted on both sides of the international border to this day, have survived. Danziger’s lively and insightful book documents the story of these Great Lakes Indians—a study not of victimization but of how Aboriginal communities and their leaders have determined their own destinies and preserved core values, lands, and identities against all odds and despite ongoing marginalization.

Utilizing eyewitness accounts from the 1800s and an innovative, cross-national approach, Danziger explores not only how Native Americans adapted to their new circumstances—including attempts at horse and plow agriculture, the impact of reservation allotment, and the response to Christian evangelists—but also the ways in which the astute and resourceful Great Lakes chiefs, councils, and clan mothers fought to protect their homeland and preserve the identity of their people. Through their efforts, dreams of economic self-sufficiency and self-determination as well as the historic right to unimpeded border crossings—from one end of the Great Lakes basin to the other—were kept alive.

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ASLCH Call for Papers

Matthew L.M. Fletcher

From Law & Humanities Blog:

Call for Participation: 13th Annual ASLCH Conference

March 19-20, 2010
Brown University, Providence, Rhode Island

The Association for the Study of Law, Culture and the Humanities is an organization of scholars engaged in interdisciplinary, humanistic legal scholarship. The Association brings together a wide range of people engaged in scholarship on legal history, legal theory, jurisprudence, law and cultural studies, law and literature, law and the performing arts, and legal hermeneutics. We want to encourage dialogue across and among these fields about issues of interpretation, identity, ideals, values, authority, obligation, justice, and about law¹s place in culture.

We will be accepting proposals for panels, roundtables, papers, and volunteers for chairs and discussants from July 15th until October 15th 2009.

PLEASE NOTE: To submit proposals, please go to the online submission site https://www.regonline.com/13thAnnual

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Legal Scholarship on the Makah Treaty Right to Whaling

Matthew L.M. Fletcher1 Comment

Emily Brand, a recent law grad, published “The Struggle to Exercise a Treaty Right: An Analysis of the Makah Tribe’s Path to Whale,” in Environs, a law journal from UC Davis. An excerpt from the intro:

At the heart of this conflict are the actors who are all trying to do what they think is right. The animal rights activists want to participate in the administrative system to ensure marine mammal protection, the Makah Tribe wants to exercise its treaty right to continue focal cultural and religious traditions, and NOAA wants to fulfill its administrative duty, including its fiduciary duty under the Neah Bay Treaty. Unfortunately, the combination of good intentions created a momentum that is no longer controllable by any one party and left the Makah with an indefinitely suspended treaty right.

The Tribe now faces a complex legal road, juggling the administrative action, the criminal case, and an imminent civil suit. The Tribe must act carefully in managing its actions and arguments so as not to foreclose any way to exercise its treaty right. The Makah have three main avenues of action: 1) follow the administrative agency MMPA waiver process defined by Anderson v. Evans; 2) re-assert issues from Anderson in criminal court; or 3) re-visit Anderson’s challenges after NOAA’s waiver determination in a civil suit. Each path involves a different strategy and risk. However, all paths lead to the Ninth Circuit and ultimately the Supreme Court, the only place where this issue could finally be put the rest.