Scholarship

Courtney Jung on Transitional Justice and Canada’s Indian Residential Schools

Matthew L.M. Fletcher

Courtney Jung has posted “Canada and the Legacy of the Indian Residential Schools: Transitional Justice for Indigenous Peoples in a Non-Transitional Society” on SSRN. Here is the abstract:

The framework of transitional justice, originally devised to facilitate reconciliation in countries undergoing transitions from authoritarianism to democracy, is used with increasing frequency to respond to certain types of human rights violations against indigenous peoples. In some cases, transitional justice measures are employed in societies not undergoing regime transition. This paper outlines some of the potential complexities involved in processing indigenous demands for justice through a transitional justice framework. First, governments and indigenous peoples may differ over the scope of injustices that transitional justice measures can address. Second, governments may try to use transitional justice to draw a line through history and legitimate present policy, whereas indigenous peoples may try to use the past to critique present policy and conditions. Third, governments may try to use transitional justice to reassert their sovereign and legal authority, whereas indigenous peoples may try to resist this strategy, and even make competing claims to sovereignty and legal authority.

Paul Spruhan on Blood Quantum at Navajo

Matthew L.M. Fletcher

Paul Spruhan has published “The Origins, Current Status, and Future Prospects of Blood Quantum as the Definition of Membership in The Navajo Nation” in the Tribal Law Journal. Here is the abstract:

In this article, the author discusses the origin of the Navajo Nation’s blood requirement. Mr. Spruhan examines the intended purpose of the quarter-blood quantum definition and the role of the Bureau of Indian Affairs. He reviews the current status, regulation, and recent attempts to change the quarter-blood quantum requirement. He discusses the future of the quarter-blood quantum requirement with respect to the Navajo Nation Council’s 2002 resolution known as the “Fundamental Laws of the Diné,” a resolution mandating the application of traditional law, customary law, natural law, and common law to the Navajo Nation Government and its entities. In this regard, Mr. Spruhan inquires as to the impact the “Fundamental Laws of the Diné” will have on the quarter-blood quantum requirement and future membership requirements.

Ezra Rosser on Tribal Customary Law

Matthew L.M. Fletcher

Ezra Rosser has posted “Customary Law: The Way Things Were, Codified” on SSRN. The Tribal Law Journal published the paper. Here is the abstract:

Frequently referred to as “customary law,” the unique traditions and customs of different Native American tribes are cited by their tribal courts as authoritative and binding law. The recent use of customary law as a mechanism for deciding individual cases is not uniform among tribal court systems as it differs depending upon which tribe’s judges are working to place custom into contemporary judicial analysis. Understanding the present role of customary law in tribal law requires first understanding the nature of customary law and then understanding how it is being used. The effect of customary law is dependent upon the place it has in relation to other sources of law from tribal statutes to state common-law. Furthermore, the differing treatment afforded customary law by separate tribal court systems in many ways is a reflection of the degrees of proof required by different courts to establish what is or is not a tribal custom.

University of Montana School of Law Dean Search

Kate Fort

One of the five finalists for the Montana Law School dean position practices Indian law. Greg Murphy is admitted to three tribal bars in Montana. He lists Indian law as one of his main practice areas.

h/t The Faculty Lounge

Indigenous Law and Policy Center Occasional Papers — Updated

Matthew L.M. Fletcher

We’ve posted several recent papers. Here is the website for all of our papers dating back to 2006.

2009-01
Advising – and Suing – Tribal Officials: On the Scope of Tribal Official Immunity by Matthew L.M. Fletcher and Kathryn E. Fort
2009-02
The Ethics of Pushing the Envelope in Indian Law Cases by Matthew L.M. Fletcher
2009-03
Supreme Court Reversal of Carcieri: Implications for Reaffirmed Michigan Indian Tribes by Novaline D. Wilson
2009-04
The Origins of the Indian Child Welfare Act: A Survey of the Legislative History by Matthew L.M Fletcher

Ann Tweedy on Conceptions of Sex-Based Equality under Tribal Law

Matthew L.M. Fletcher

Ann Tweedy has posted the abstract of her fine paper “Conceptions of Sex-Based Equal Protection under Tribal Law: Broad-Based Prohibitions Against Discrimination, Context-Specific Protections, and Sex-Based Distinctions” on SSRN. Here is the abstract:

This article undertakes a broad-based survey of tribal laws that pertain to sex-based classifications, focusing primarily on laws that prohibit sex discrimination. The sources relied on include the tribal codes, constitutions, and cases available online from the National Tribal Justice Resource Center; cases included in the Indian Law Reporter; the University of Washington’s 1988 microfiche compilation of tribal codes and constitutions; the decisions of the Northwest Intertribal Courts; the limited tribal law resources available on Westlaw; and occasionally legal resources downloaded from the websites of individual tribes and from other miscellaneous websites.

Continue reading →

James McClurken’s “Our People, Our Journey: The Little River Band of Ottawa Indians”

Matthew L.M. Fletcher1 Comment

Michigan State Press just published this fantastic book. Here are the details from the Press:

Our People, Our Journey
The Little River Ottawa Band of Indians

James M. McClurken

Our People, Our Journey is a landmark history of the Little River Band of Ottawa Indians, a Michigan tribe that has survived to the present day despite the expansionist and assimilationist policies that nearly robbed it of an identity in the late nineteenth century.

In his thoroughly researched chronicle, McClurken documents in words and images every major lineage and family of the Little River Ottawas. He describes the Band’s struggles to find land to call its own over several centuries, including the hardships that began with European exploration of what is now the upper Midwest. Although the Little River Ottawas were successful at integrating their economic and cultural practices with those of Europeans, they were forced to cede land in the face of American settlements.

Continue reading →

ACS Issue Brief — Domestic Violence in Indian Country & Tribal Sovereignty

Matthew L.M. Fletcher

From the American Constitution Society:

ACS is pleased to distribute an Issue Brief by Matthew L.M. Fletcher, Director of the Indigenous Law and Policy Center and Associate Professor at the Michigan State University College of Law, entitled, “Addressing the Epidemic of Domestic Violence in Indian Country by Restoring Tribal Sovereignty.” In this Issue Brief, Professor Fletcher argues that American Indian women residing on Indian reservations suffer from domestic violence and physical assaults at rates that far exceed those faced by other women, and that the perpetrators of these crimes often go unpunished. Professor Fletcher contends that the current state of federal Indian law has contributed to this epidemic of domestic violence in Indian Country. The author first notes that the Supreme Court has held that tribal governments do not have jurisdiction over domestic violence misdemeanors committed by non-Indians in Indian Country, and second that although federal and state authorities may prosecute these crimes, they often do not do so because of a lack of resources and other factors.

Continue reading →

Stuart Banner Talk Tuesday, March 24

Matthew L.M. Fletcher

The Indigenous Law and Policy Center is pleased to host Stuart Banner, a UCLA law professor and author of “Possessing the Pacific” and “How the Indians Lost Their Land” Tuesday, March 24, at 11 AM.

Prof. Banner will be talking about these two books. Michigan State Prof. Charles Ten Brink and U-M History VAP/ post-doctoral fellow at the Michigan Society of Fellows Miranda Johnson will be serving as commentators after Prof. Banner speaks.

Prof. Banner’s talk is part of the Center’s spring speaker series, in which we bring in authors of recent books relating in some way to Federal Indian Law.

The talk is at 11 AM in the Castle Board Room, and a light lunch will be provided. Hope to see you there!

Connecticut Law Review Note Profiles GTB and Criminal Jurisdiction

Matthew L.M. Fletcher

Benjamin J. Cordiano published “Unspoken Assumptions: Examing Tribal Jurisdiction over Nonmembers Nearly Two Decades after Duro v. Reina” in the Connecticut Law Review. Here is an excerpt from the abstract:

This Note examines the Supreme Court’s reasoning in Duro and uses nearly twenty years of anecdotal evidence, case law, and congressional findings to show that the Court relied on flawed assumptions about the nature of nonmember criminal jurisdiction in the modern tribal context. By examining the modern realities of two tribes, the Grand Traverse Band of Ottawa and Chippewa Indians and the Confederated Tribes of the Colville Reservation, this Note concludes that the Supreme Court’s reasoning in Duro is flawed and that criminal jurisdiction over nonmember Indians is crucial to tribal self-governance and maintenance of reservation life.