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.
Scholarship
Indigenous Law and Policy Center Occasional Papers — Updated
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
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.
James McClurken’s “Our People, Our Journey: The Little River Band of Ottawa Indians”
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
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.
ACS Issue Brief — Domestic Violence in Indian Country & Tribal Sovereignty
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.
Stuart Banner Talk Tuesday, March 24
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
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.
Two Recent ICWA Articles
Here are two relatively recent law review articles on the Indian Child Welfare Act. First, Prof. Solangel Madonado published “Race, Culture, and Adoption: Lessons from Mississippi Band of Choctaw Indians v. Holyfield” in the Columbia Journal of Gender & Law. Prof. Maldonado is also the author of a chapter on Holyfield in Family Law Stories, from West. Here is an excerpt:
While the idea of allowing individuals to choose their racial, ethnic, or cultural identity based on their activities rather than biology has a certain appeal, it is difficult to imagine a court telling a person of African American descent that she is not really African American simply because she does not live in an African American neighborhood, have African American friends, or show interest in political issues that concern the African American community. Although political pundits and private citizens have suggested that Justice Clarence Thomas is “not really Black,” it is quite another thing for lawmakers to imply the same. Instead, we allow individuals to self-identify regarding race and ethnicity, regardless of their contact with the relevant community.
And another:
The willingness of Congress in enacting ICWA and the Court in Holyfield to consider social prejudices might also signal that antidiscrimination norms are much weaker in cases involving tribal Indians. The Supreme Court has held that, while societal biases might cause children emotional harm, the law cannot consider these biases when determining children’s best interests. However, ICWA’s drafters and the Holyfield court might have unwittingly given effect to such biases when they considered white communities’ rejection of Native American children and the potential psychological harm as a reason to keep them in Indian communities.
Another paper, by Daniel Albanil Adlong, called “The Terminator Terminates Terminators: Governor Schwarzeneggar’s Signature, SB 678, and How California Attempts to Abolish the Existing Indian Family Exception and Why Other States Should Follow“, published in the Appalachian Journal of Law, also discusses ICWA. Here is an excerpt:
Blumm and Steadman on the Judge Martinez Treaty Fishing Decision
Michael Blumm and Jane Steadman have posted “Indian Treaty Fishing Rights and Habitat Protection: The Martinez Decision Supplies a Resounding Judicial Reaffirmation” on SSRN. Here is the abstract:
In the mid-nineteenth century, as the pace of American westward expansion accelerated and tension between white settlers and indigenous tribes mounted, the federal government convinced many Pacific Northwest tribes to enter into treaties that would facilitate white settlement. In exchange for cession of millions of acres of their homeland, the tribes retained the right of taking fish at all usual and accustomed places in common with white settlers. In the 1905 case United States v. Winans, the United States Supreme Court explained that the treaty fishing right constitutes a “servitude upon every piece of land.” We have described this servitude as a “piscary profit,” a familiar property right at common law that must be exercised free from unreasonable interference. While the universally shared assumption at the time the treaties were signed was that the salmon resource was inexhaustible, in fact the salmon have been in precipitous decline since the late-1800s. This scarcity bred conflicts, which have forced the tribes to enforce their treaty fishing right in the courts for over a century.
Student Comment on Adam Walsh Act and Tribal Sovereignty
Brian Dimmer published “How Tribe and State Cooperative Agreements Can Save the Adam Walsh Act from Encroaching upon Tribal Sovereignty” in the Marquette Law Review. Here is an excerpt:
This Comment proposes that because the AWA threatens the tribal sovereignty of both non-Public Law 280 and Public Law 280 tribes, Congress should amend the AWA to require tribe and state cooperative agreements to carry out AWA sex offender registration and notification functions.
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