Scholarship

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.

Christian McMillen Talk

Matthew L.M. Fletcher

From Legal History Blog:

On Friday, January 23, Professor Christian McMillen, Department of History, University of Virginia, will be discussing two papers. First, he will talk about the Historians’ Brief in Carcieri v Kempthorne, an Indian law case from the Supreme Court’s current term which considers whether the Narrangansett Tribe may receive benefits under the Indian Reorganization Act of 1934, if the Tribe was not federally recognized on the date of enactment, and whether the Rhode Island Indian Claims Settlement Act foreclosed the Tribe’s right to exercise sovereignty over land in the state. Next, McMillen will discuss “Proof, Evidence and History in Indigenous Land Claims,” a paper blending history with the law in the early years of Indian claims.

Professor McMillen is Assistant Professor of Native American Studies and the U.S. West in the Corcoran Department of History at U.Va. He received his BA in history from Earlham College, his MA in history from the University of Montana, and his PhD in history from Yale University. McMillen’s book, Making Indian Law: The Hualapai Land Case and the Birth of Ethnohistory (Yale University Press, 2007) won the 2008 William Nelson Cromwell Book Award, the 2008 John Phillip Reid Book Award, and the 2008 Erminie Wheeler-Voegelin Prize, and garnered a nomination for the Bancroft Prize. The book examines a watershed Indian property rights case that continues to impact the outcome of indigenous land claim cases throughout the world.
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John Cross on Indigenous Property Rights

Matthew L.M. Fletcher

John Cross has posted “Justifying Property Rights in Native American Traditional Knowledge” on SSRN, a paper coming out of the Texas Wesleyan symposium on Intellectual Property and Indigenous Peoples. Here is the abstract:

This paper explores various reasons why Congress might elect to protect the traditional knowledge and traditional cultural expression of Indian tribes. It also addresses whether Congress would have the constitutional authority to enact such legislation.

American Indian Law Review to Publish Papers from MSU Conference “American Indian Law and Literature”

Matthew L.M. Fletcher

Here is a listing of the articles to be published in volume 33, no. 1:

  • From Hatuey to Che: Indigenous Cuba Without Indians and the U.N. Declaration on the Rights of Indigenous Peoples – Larry Catá Backer
  • “Channeling Thought”: The Legacy of Legal Fictions from 1823 – Jen Camden & Kathryn E. Fort
  • Interpretive Sovereignty: A Research Agenda – Kristen A. Carpenter
  • Crossover – Richard Delgado & Jean Stefancic
  • Red Leaves and the Dirty Ground: The Cannibalism of Law and Economics – Matthew L.M. Fletcher
  • Genealogy as Continuity: Explaining the Growing Tribal Preference for Descent Rules in Membership Governance in the United States – Kirsty Gover
  • Writing the Living Law: American Indian Literature as Legal Narrative – Amelia V. Katanski
  • How Lawyers Resolve Ethical Dilemmas: An Essay on James Welch’s The Indian Lawyer – Renee Newman Knake
  • Narrative Braids: Performing Racial Literacy – Margaret Montoya & Christine Zuni Cruz, interviewed by Gene Grant
  • At the Edge of Indian Law Scholarship: A Poem Instead of a Footnote – Frank Pommersheim