Scholarship

Tonya Kowalski on Teaching “The Forgotten Sovereigns”

Matthew L.M. Fletcher1 Comment

Tonya Kowalski has posted her paper “The Forgotten Sovereigns” on SSRN. It is forthcoming from the Florida State University Law Review. And, it is a companion piece to Samantha Moppett’s piece on Indian law in the legal writing curriculum!

Here is the abstract:

Our federal system includes 562 federally-recognized American Indian nations, most of whom have their own sovereign lands, governments, and court systems, and who interact every day with the state and federal systems. Yet most legal thought overlooks our sovereign Native American nations and legal heritage. Although much of American law and policy intersects Tribal jurisdictions, such issues generally appear in the law school curriculum only in specialized, upper-level courses. This Article argues that the three-sovereign system should provide the fundamental framework for the United States legal system across the legal curriculum, and provides several concrete examples for how to do so. It also argues that many law courses should touch upon how their disciplines impact Tribal jurisdictions and their citizens.

By changing our fundamental orientation toward the role of Tribal sovereigns in the U.S. system, we will advance the academy’s goals of scholarship, teaching, and service. First, we will accurately represent the true structure and diversity of our tripartite federal system. Second, we can improve learning by using direct and comparative Tribal perspectives for fundamental legal principles and methods. Third, we can further the social justice mission by raising awareness of Tribal sovereignty among future advocates and lawmakers.

Bethany Berger on Equal Protection and Federal Indian Law

Matthew L.M. Fletcher

Bethany Berger has posted “Reconciling Equal Protection and Federal Indian Law” on SSRN. Here is the abstract:

In this essay for a festschrift in celebration of Philip Frickey and his work, I show how equal protection and federal Indian law can be reconciled without succumbing to what Professor Frickey has called the seduction of artificial coherence. Federal Indian policies increasingly face arguments that, in providing special treatment for individuals and groups defined in part by descent from indigenous tribes, they violate the requirement of equal protection before the law. I argue that such arguments ignore the congruence of federal Indian policy and equal protection as a matter of constitutional norms, constitutional history, and constitutional text. Federal Indian policies at their best undo the results of defining indigenous peoples as inferior racial groups rather than sovereigns entitled to political and property rights. This consistency between civil rights and protection of tribal rights was recognized by the framers of the fourteenth amendment, and is reflected in both judicial decisions and historical developments in federal Indian policy. American constitutional principles, in other words, support both equal protection and tribal rights, and militate against any false consistency that would undermine the principles of equality and respect on which both are based.

Samantha Moppett on Incorporating Tribal Justice Systems into the Legal Research and Writing Curriculum

Matthew L.M. Fletcher2 Comments

Samantha Moppett has posted “Acknowledging America’s First Sovereign: Incorporating Tribal Justice Systems into the Legal Research and Writing Curriculum” on SSRN. Haven’t read this yet, but it is a very important subject!

The abstract:

Marie Setian (“Marie”) drove to Foxwoods Resort Casino in Ledyard, Connecticut, with her husband and another couple for a day of gambling, dining, and entertainment. After gambling for a little while, the couples went to the Festival Buffet. At the buffet’s seafood station, Mary placed some shrimp on her plate. As she walked to the international station, her left foot slipped on something and she fell to the floor. As a result of the fall, Marie experienced soreness, swelling, and discomfort in her knee. Eventually, she underwent surgery and participated in extensive physical therapy. Her knee will never be the same again.

Marie contacted an attorney because she wanted to sue Foxwoods for the actual damages and pain and suffering that she sustained as a result of the slip and fall. Accordingly, the attorney filed a claim in the Connecticut trial court on behalf of Marie. Although it would appear the attorney acted competently and professionally, the state trial court dismissed Marie’s claim.

In law schools across the country, law students are introduced to federalism and the organization of the United States government. This invariably includes, among other things, a discussion of the dual systems operated by the state and federal courts, an introduction to the jurisdiction of these courts, and the sources of authority that these courts can consider. Yet, this nearly universal introduction to the American judicial system is incomplete. Continue reading →

Online Materials for Michigan State Bar American Indian Law Section Meeting

Matthew L.M. Fletcher

Here are material to supplement today’s MSB American Indian Law Section program on the Indian Child Welfare Act:

Agenda

In re J.L. opinion (Mich. S. Ct.)

American Indian Law Section amicus brief in In re J.L.

Michigan Court Improvement Program — ICWA Resource Guide

Facing the Future: The Indian Child Welfare Act at 30 (MSU Press)

ILPC Occasional Paper 2009-04 The Origins of the Indian Child Welfare Act: A Survey of the Legislative History (or here)

ILPC Occasional Paper 2009-05 The Indian Child Welfare Act: A Case Update (August 2008-August 2009) (or here)

Materials from GLIFWC’s Treaty Symposium — Minwaajimo (Telling a Good Story)

Matthew L.M. Fletcher

Great Lakes Indian Fish and Wildlife Commission hosted a major treaty rights symposium on July 28-30, 2009, featuring many of the stars of Indian law — Kathryn Tierney, Marc Slonim, Henry Buffalo, Jr., Bruce Greene, and others. The symposium website is here.

Webcasts of many of the speeches are here at IndianCountryTV.com.

Written materials are linked here:

Continue reading →

Sarah Krakoff Tribute to Phil Frickey

Matthew L.M. Fletcher

Sarah Krakoff has posted her paper, “The Last Indian Raid in Kansas: Context, Colonialism, and Philip P. Frickey’s Contributions to American Indian Law,” on SSRN. It is forthcoming in the California Law Review. Here is the abstract:

To many, American Indian law is a remote and anomalous area of the law. To others, including Professor Phil Frickey, themes in American Indian law are central to our identity as a nation, and lessons from the field inform broader understandings of the competencies and limitations of the federal judiciary. One of Professor Frickey’s recurring scholarly arguments is that the federal courts are most within their areas of institutional competence when they approach contemporary Indian law questions as structural disputes between sovereigns, rather than as individual conflicts amenable to the application of mainstream public law values. An event described as the Last Indian Raid in Kansas by some, and the Odyssey of the Northern Cheyenne by others, which touched down in the little town of Oberlin, Kansas, where Phil Frickey grew up, turns out to be all about the centrality of the structural, inter-governmental relationship between tribes and the United States, and the importance of grounded research about the contexts of American Indian law, another theme that Professor Frickey championed in his scholarship. This paper first describes the trajectory of Professor Frickey’s Indian law scholarship, tracking in particular the development of the major themes just described. Next, it delves into the story of Oberlin, Kansas and the Northern Cheyenne Odyssey, a story that cannot be fully comprehended without the contextual backdrop of the United States’ unique brand of colonialism and American Indian nation resistance to it. Finally lessons from the Last Indian Raid are applied to a contemporary Indian law issue – the boundaries of tribal control over Indians who are not members of the governing tribe. Telling a thicker story, whether about the Last Indian Raid or this particular Indian law question, may not push federal Indian law in the direction that Professor Frickey and many other scholars would like to see it go, but there is value nonetheless in peeking behind the arid formulations of Indian law that tend to issue from the judiciary in favor of the more complicated reality about the life of Indian law.

Frank Pommersheim’s New Book “Broken Landscapes” is Out Now!

Matthew L.M. Fletcher2 Comments

Just received this in the mail. Here is the website for the book from Oxford.

bookshot

Broken Landscape

Indians, Indian Tribes, and the Constitution
Frank Pommersheim

Description

Broken Landscape is a sweeping chronicle of Indian tribal sovereignty under the United States Constitution and the way that legal analysis and practice have interpreted and misinterpreted tribal sovereignty since the nation’s founding. The Constitution formalized the relationship between Indian tribes and the United States government–a relationship forged through a long history of war and land usurpation–within a federal structure not mirrored in the traditions of tribal governance. Although the Constitution recognized the sovereignty of Indian nations, it did not safeguard tribes against the tides of national expansion and exploitation

As Broken Landscape demonstrates, the federal government has repeatedly failed to respect the Constitution’s recognition of tribal sovereignty. Instead, it has favored excessive, unaccountable authority in its dealings with tribes. The Supreme Court has strayed from its Constitutional roots as well, consistently issuing decisions over two centuries that have bolstered federal power over the tribes.

Frank Pommersheim, one of America’s leading scholars in Indian tribal law, offers a novel and deeply researched synthesis of this legal history from colonial times to the present, confronting the failures of constitutional analysis in contemporary Indian law jurisprudence. Closing with a proposal for a Constitutional amendment that would reaffirm tribal sovereignty, Pommersheim challenges us to finally accord Indian tribes and Indian people the respect and dignity that are their due.


Frank Pommersheim teaches at the University of South Dakota School of Law, where he specializes in Indian law. Prior to joining the faculty in 1984, he lived and worked on the Rosebud Sioux Reservation for ten years. He has served on a number of tribal appellate courts throughout Indian country and currently serves as Chief Justice for the Cheyenne River Sioux Tribal Court of Appeals and the Rosebud Sioux Supreme Court. He is the author of Braid of Feathers: American Indian Law and Contemporary Life and East of the River: Poems Ancient and New .

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.