Scholarship

Review of African Cherokees in Indian Territory

Kate Fort1 Comment

Angela Hudson reviews Celia E. Naylor’s new book African Cherokees in Indian Territory: From Chattel to Citizens on H-Net Reviews.  The reviewer compares it favorably with Prof. Tiya Miles’ book, The Ties That Bind, which is certainly a strong recommendation:

Dislodging Comfortable Fictions

Debates about the citizenship status of Cherokee freedmen and their descendents have filled newspapers, Web sites, conference rooms, and e-mail inboxes over the past two years and have ranged from the thoughtful to the downright vicious, leaving nearly no aspect of the controversy untouched. But as Celia E. Naylor’s recent book makes clear, there is still a great deal more we can learn about the lives, loves, fates, and desires of people of African descent who lived among the Cherokees from the 1830s through the first decade of the twentieth century. In African Cherokees in Indian Territory, Naylor aims to “lift the veil” that still covers the world of “enslaved and free African-descended people in the 19th-century Cherokee Nation, Indian Territory” (p. 3).

Continue reading →

Munzer & Raustiala on IP and Indigenous Traditional Knowledge

Matthew L.M. Fletcher

Stephen Munzer and Kal Raustiala have posted “The Uneasy Case for Intellectual Property Rights in Traditional Knowledge” on SSRN. The paper appears in the Cardozo Arts & Entertainment Law Journal, Vol. 27, pp. 37-97, 2009. Here is the abstract:

Should traditional knowledge – -the understanding or skill possessed by indigenous peoples pertaining to their culture and folklore and their use of native plants for medicinal purposes – receive protection as intellectual property? This Article examines nine major arguments from the moral, political and legal philosophy of property for intellectual property rights and contends that, as applied to traditional knowledge (TK), they justify at most a modest package of rights under domestic and international law. The arguments involve desert based on labor; firstness; stewardship; stability; moral right of the community; incentives to innovate; incentives to commercialize; unjust enrichment, misappropriation and restitution; and infringement and dilution. These arguments do, however, support “defensive” protection for TK: that is, halting the use of TK by nonindigenous actors in obtaining patents and copyrights. These arguments also support the dissemination of TK on the internet and via other digital media and the selective use of trademarks. The force of these conclusions resides in the importance of a vibrant public domain, and the absence of any plausible limiting principle that would allow more robust rights in TK for indigenous groups without permitting equally robust rights for nonindigenous groups.

Drake Law Review Gaming Law Symposium

Matthew L.M. Fletcher

THE DRAKE LAW REVIEW AND THE INTERNATIONAL MASTERS OF GAMING LAW:  GAMING LAW SYMPOSIUM — Sadly, full text is not available for these articles on the Drake Law Review site….

Preface
Keith C. Miller

The Three Billion Dollar Question
Heidi McNeil Staudenmaier & Anne W. Bishop

Gambling with Bankruptcy:  Navigating a Casino through Chapter 11 Bankruptcy Proceedings
Robert W. Stocker II & Peter J. Kulick

Alex Rodriguez, a Monkey, and the Game of Scrabble:  The Hazards of Using Illogic to Define Legality of Games of Mixed Skill and Chance
Anthony N. Cabot, Glenn J. Light & Karl F. Rutledge

The Hand that’s Been Dealt:  The Indian Gaming Regulatory Act at 20
Steven Andrew Light & Kathryn R.L. Rand

The “Business of Betting or Wagering”:  A Unifying View of Federal Gaming Law
Ben J. Hayes & Matthew J. Conigliaro

Cards and Dice in Smoky Rooms:  Tobacco Bans and Modern Casinos
Ronald J. Rychlak

Douglas Harris on the Boldt Decision in Canada

Matthew L.M. Fletcher

Douglas C. Harris posted his paper,The Boldt Decision in Canada: Aboriginal Treaty Rights to Fish on the Pacific, part of THE POWER OF PROMISES: RETHINKING INDIAN TREATIES IN THE PACIFIC NORTHWEST, Alexandra Harmon, ed., University of Washington Press, 2008. Here is the abstract:

The Oregon Boundary Treaty of 1846 established the forty-ninth parallel as the boundary between British and American interests in western North America. After 1846, Aboriginal peoples to the north of the border negotiated with the British Crown the terms of their coexistence with incoming settlers, those to its south with the United States. As a result, while some of the Coast Salish and Kwak’waka’wakw peoples in what would become British Columbia concluded treaties between 1850 and 1854 with the Crown’s representative, James Douglas, the tribes in the United States settled with the governor of the Washington territory, Isaac I. Stevens, in 1854 and 1855.

Continue reading →

Fort and Fletcher on the Indian Child Welfare Act

Matthew L.M. Fletcher1 Comment

Kathryn E. Fort has posted her paper, “The Cherokee Conundrum: California Courts and the Indian Child Welfare Act,” on SSRN. Here is the abstract:

This article was prepared for presentation at the American Indian Identity Conference held at Michigan State University, October 16-17, 2008. After classifying a year of Indian Child Welfare Act (ICWA) cases in state courts, it became apparent that California had both the highest number of ICWA cases and that most of these cases were because of noncompliance with the notice provision of ICWA. In addition, it became clear that the majority of California cases involved parents claiming Cherokee affiliation. This article concludes there could be many reasons for this, including an informal exercise of the Existing Indian Family doctrine at the social worker level.

And Matthew Fletcher posted “The Indian Child Welfare Act: A Survey of the Legislative History” on SSRN. Here is the abstract:

This paper is prepared for the University of Michigan Law School Native American Law Students Association’s annual Indian Law Day, April 10, 2009. The materials in this paper derive from an early draft of an amicus brief filed by the American Indian Law Section of the State Bar of Michigan in the Michigan Supreme Court case, In re Lee. The paper focuses on the legislative history of the Indian Child Welfare Act, with particular emphasis on Michigan.

Article on Adding Indian Law to the Arizona State Bar Exam

Matthew L.M. Fletcher

Here is an excellent paper by Ray Campbell and Brian Lewis, ASU law students, arguing in favor of adding Indian law to the Arizona bar exam. It’s published by Arizona Attorney, the state bar journal, and is titled “Indian Law: A Needed Addition to the Arizona Bar Exam.”

az-atty-article

Our earlier post on this question is here.

Call for Papers: Tribal Nation Economics and Legal Infrastructure

Matthew L.M. Fletcher

CALL FOR PAPERS

Tribal Nation Economics and Legal Infrastructure

This call for papers seeks submissions for the AALS Indian Nations and Indigenous Peoples Section’s 2010 publication of selected papers.  The Section will meet during the American Association of Law School’s Annual Conference on January 8th, 2010.  The Indian Nations and Indigenous Peoples Section Meeting will focus on “Tribal Nation Economics and Legal Infrastructure.”  The Washburn Law Journal will be publishing the papers on this topic accepted for publication.

Continue reading →

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.