Scholarship

Brian Sawers on Tribal Land Corporations

Matthew L.M. Fletcher

Brian Sawers (Harvard Econ) has posted “Tribal Land Corporations: Using Incorporation to Combat Fractionalism” on SSRN. Here is the abstract:

Allotment has not provided individual Indians with economic opportunity; instead it has weakened tribal structures and shrunk the tribal land base. The administrative burden is significant, absorbing Federal monies that could be used elsewhere in Indian Country. In addition, transaction costs inhibit economic development and depress the returns to individual Indians. Congress has attempted to reduce fractionation through regulating devise and descent. Unfortunately, the Supreme Court has set off-limits the quickest mechanism for consolidating land ownership. However, any consolidation program that relies solely on inheritance will take decades to reduce fractionation.

Instead, tribes should rely on the incorporation and eminent domain to consolidate ownership and control of allotted lands in a tribal enterprise. Interests in allotted lands can be exchanged for shares in the TLC, limited the cost of formation. Eminent domain should be used to prevent uneven tender and quickly expand to an efficient scale. Since funds are limited, compensation for the taking of allotted interests should be interest of equivalent value in other parcels. The Rosebud TLE is just such a TLC, although with several structural defects imposed by the OIA. Even with weak shareholder control, the incentives facing the TLC are closer to the individual Indians than the BIA. Economic theory suggests that the TLC should provide better management of trust land.

Very interesting. My recollection is that one of the purposes of an IRA Section 17 corporation was to do exactly this.

Student Note on U.S. v. Washington Culverts Opinion

Matthew L.M. Fletcher

William Fisher has published “The Culverts Opinion and the Need for a Broader Property-Based Construct” in the Journal of Environmental Law and Litigation (Oregon). Here is a copy of the Culverts Opinion. Here is an excerpt:

The question becomes: Do treaties involve an affirmative duty for states to protect fish habitat and ensure quality fish runs? As discussed herein, a federal court has answered this question narrowly, yet affirmatively, failing to employ a property-based construct that encompasses all the rights reserved under the tribal treaties. Therefore, although the courts have recognized the existence of a duty, they have not yet recognized its entire scope.

Many theories have been advanced for how courts should interpret a state’s duties to protect fish habitat. Generally, treaty-invoked duties are analyzed under a contract-law paradigm. This is not erroneous, as treaties are said to be “contract[s] between sovereign nations.” However, when courts look at treaties only as contracts, they are missing one major aspect of tribal treaties: property rights. Not only are tribal treaties contracts between sovereigns, they are also deeds of property. Therefore, the bodies of law that are invoked by the formation of a tribal treaty include both contract law and property law. However, despite the promising answers property law provides for treaty interpretation, many judges have shown discomfort at the idea of applying property-based constructs to interpret states’ and tribes’ duties and rights under such treaties. Some feel that the formalistic rules of property law do not contain enough elasticity to be molded within the Indian law context. For example, when the Ninth Circuit used a property-law analogy to enforce tribes’ rights to take fish from the Columbia River, Judge Kennedy concurred in the holding but objected to the court’s use of this analogy, arguing that it was not an exact fit. What Judge Kennedy failed to recognize was that courts can and should apply the basic models of a property-based construct to analyze treaty rights, even where every jot and tittle may not line up. Refusing to do so is to turn a blind eye to the fact that treaties are deeds of property, and as such, invoke the rules of property law.

TOMORROW: ILPC February Spring Speakers Event

Kate Fort

Justin Richland will be talking about his book, “Arguing with Tradition: The Language of Law in Hopi Tribal Court” with Hon. JoAnne Gasco responding and commenting. The event is tomorrow, February 17th, in the Castle Board Room (third floor of the Law College Building) starting at 11am. Lunch will be served.

Kate Fort on “The New Laches” in the George Mason Law Review

Matthew L.M. Fletcher1 Comment

Kathryn E. Fort (MSU) has published “The New Laches: Creating Title Where None Existed” in the George Mason Law Review.  From the introduction:

Recent legal decisions dealing with Indian land claims have been cre-ating title for private property owners where no title previously existed. As has been explored by others, various areas of property law have been turned upside down in order to defeat tribes in court. However, one area, equity, has received special attention from the courts. Specifically, the equitable defenses of laches, acquiescence, and impossibility were used by the United States Supreme Court in City of Sherrill v. Oneida Indian Nation to hand defeat to the Oneida Indian Nation on a tax issue. Since then, lower courts in the Second Circuit have used this precedent to deny Indian land claims altogether. But is the use of these three defenses based on precedent them-selves? A careful examination of City of Sherrill and its progeny reveals that these defenses have in fact been combined to create a new defense, what I will call the “new laches” defense.

Stubbs & Tolmie, “Battered Women Charged with Homicide: Advancing the Interests of Indigenous Women

Kate Fort

Published in Australian & New Zealand Journal of Criminology, Vol. 41, No. 1, pp. 138-161, 2008

h/t Feminist Law Blog

Abstract:
This article examines legal responses to women charged with a homicide offence arising from killing an abusive partner and reviews Australian cases over the period 1991-2007. We focus on cases involving Indigenous women due to their very substantial over-representation as victims and offenders in intimate homicides in Australia. We find that the Australian case law to date has not developed principles adequate to reflect battered women’s interests. Our analysis of cases involving Indigenous battered women indicates that the battering they had experienced and their disadvantaged circumstances were commonly read as indicators of personal deficits and any evidence of structural disadvantage was muted. This research suggests that the limited impact of battered women’s litigation in Australia is in part attributable to the psychological individualism of the criminal law identified by Norrie (2001, 2005), which is not confined to the trial stage but also shapes prosecutorial discretion and sentencing. We urge future research to shift the focus beyond Battered Women Syndrome and the trial process to examine plea bargaining and sentencing, and we suggest that advocates on behalf of battered women cannot rely on case law developments to deliver change but need to pursue multiple strategies.

Download at SSRN

Kevin Washburn on Felix Cohen, Anti-Semitism, and American Indian Law

Matthew L.M. Fletcher

Kevin Washburn (Arizona) has posted “Felix Cohen, Anti-Semitism, and American Indian Law,” forthcoming in the American Indian Law Review, on SSRN. Here is the abstract:

Felix Cohen and his work is discussed in several new books, including an important intellectual biography of Cohen by Dalia Tsuk Mitchell. Using the Mitchell biography as a starting point, this essay discusses an important episode in Cohen’s life, involving apparent anti-Semitism at the Department of Justice, which is not adequately explored in the otherwise excellent biography by Mitchell. As a result, Cohen remains a mystery in some respects. The essay also discusses some of the paradoxes of Cohen’s key involvement in federal Indian policy and the contemporary importance of some of his legacies in American Indian law.

How Appealing Profiles “Factbound and Splitless”

Matthew L.M. Fletcher

From How Appealing:

“MSU scholar says Indians face Supreme Court bias”: The Michigan Messenger yesterday posted online this item about a paper titled “Factbound and Splitless: Certiorari and Indian Law” by law professor Matthew L.M. Fletcher.

“Factbound and Splitless” Profiled on SCOTUSBlog

Matthew L.M. Fletcher

From SCOTUSBlog:

Matthew L.M. Fletcher (Michigan State University College of Law) has posted “Factbound and Splitless: Certiorari and Indian Law” on SSRN, see here.  This article engages in an empirical study of 162 certiorari petitions that were filed in Indian Law cases between 1986 and 1994.  To my knowledge, this is the first attempt to systematically analyze certiorari petitions in tribal cases.  Professor Fletcher concludes that petitions brought by tribes during the period studied were often denied by the Court as factbound and splitless, while state and local governments received much more favorable treatment at the certiorari stage in tribal cases.  Although I must confess that I do not agree with some of the conclusions reached in this paper, Fletcher’s article is thought-provoking and interesting. [David Stras]

Georgetown Law Journal Article on IGRA and Sovereign Immunity

Matthew L.M. Fletcher

Courtney J.A. DaCosta has published “When ‘Turnabout’ is Not ‘Fair Play’: Tribal Immunity under the Indian Gaming Regulatory Act” in the Georgetown Law Journal. An excerpt:

This Note argues that federal courts have interpreted tribal immunity broadly under IGRA; that this approach, while doctrinally sound, produces several normatively undesirable consequences; and that Congress should stem these consequences by amending IGRA to restore the statute’s tribal-state power balance through abrogation of tribal immunity in certain cases.

Columbia Law Review Note on State Discrimination against Indians

Matthew L.M. Fletcher

Shira Kieval has published “Discerning Discrimination in State Treatment of American Indians Going Beyond Reservation Boundaries” in the Columbia Law Review. Here is the abstract:

Generally, federal Indian law cases focus on jurisdiction inside of Indian Country. Occasionally, however, challenges arise about the application of state law to American Indians outside of Indian Country. In 1973, and again in 2005, the Supreme Court announced that “[a]bsent express federal law to the contrary, Indians going beyond reservation boundaries have generally been held subject to nondiscriminatory state law otherwise applicable to all citizens of the State.” While this statement is fairly accurate historically, it provides practically no direction for states, tribes, or lower courts to apply the rule in specific instances. Since American Indians are members of three distinct American political groups—Indian tribes, the states within which they reside, and the United States—how is discrimination to be discerned? How explicit must federal law be, and how much flexibility do states have in interpreting Congress’s directives? How is the Supreme Court maxim to be applied in the context of state-tribe negotiations, which have become a practical necessity for coexistence but are only occasionally addressed by federal legislation? This Note looks to the roots and rationale of the Supreme Court pronouncement, situating it inside of a larger picture of how states may, must, and cannot treat American Indian state citizens. Ultimately, it provides a framework and four specific rules for applying the Supreme Court pronouncement in disputes regarding the power of states over American Indians beyond the borders of Indian Country, and the rights of those American Indians vis-` a-vis the states.