Scholarship

Marren Sanders on Ecosystem Co-Management Agreements and Nation Building

Matthew L.M. Fletcher

Marren Sanders has posted her paper, “Ecosystem Co-Management Agreements: A Study of Nation-Building or a Lesson on the Erosion of Tribal Sovereignty?“, forthcoming in the Buffalo Environmental Law Journal. Here is the abstract:

This article examines tribal sovereignty and resource management in the era of environmental self-determination through the lens of the Cornell/Kalt model of nation building in Indian Country. The nation building model holds that tribes can achieve self-determination by acting, thinking, being, and relating as independent, self-governing nations, regardless of whether they are recognized as such by outsiders. After setting the stage, the article looks at ecosystem management and species co-management agreements that have been initiated between tribes and federal and state agencies. In the framework of case studies, it focuses on the elements of de facto sovereignty and analyzes the success of various tribes’ approaches to ecosystem co-management. It concludes that co-management agreements can offer significant benefits to Indian nations, but they can pose extraordinary challenges to tribes and are not without risks. However, if crafted correctly, these agreements can also motivate tribes to build nations.

Kevin Washburn — First Canby Lecture at ASU

Matthew L.M. Fletcher

Kevin Washburn posted his lecture, “American Indians, Crime, and the Law: Five Years of Scholarship in Criminal Justice in Indian Country,” on SSRN. Here is the abstract:

This essay is a lightly-edited and footnoted draft of the inaugural Canby lecture presented by Professor Washburn as the inaugural William C. Canby, Jr., Scholar in Residence at the Sandra Day O’Connor College of Law at Arizona State University in 2008. It briefly praises Judge Canby and his influences on the author and then presents some of the highlights of Professor Washburn’s critical commentary on Indian country criminal justice, which reflected Professor Washburn’s most important work in the first five years of his career. It also briefly summarizes legislation recently introduced in the United States Congress that is intended to respond to several of Professor Washburn’s concerns.

Barbara Atwood on Permanency for Indian Children under ICWA

Matthew L.M. Fletcher

Barbara Atwood has posted “Permanency for American Indian and Alaska Native Foster Children: Taking Lessons fromTribes” on SSRN. This paper is forthcoming from the Capital University Law Review. The abstract:

This paper, presented at Capital University’s 4th Annual Wells Conference on Adoption Law, addresses the implications of the child welfare goal of permanency for children who qualify as “Indian children” under federal law. The federal Adoption and Safe Families Act of 1997 currently promotes permanency for foster children through severance and adoption, despite the policies of the Indian Child Welfare Act of 1978 and the traditions of many North American tribes in which more fluid approaches to parenting and child-rearing are common. With tribal practices as a model, the paper advocates that state courts make greater use of customary adoption, extended family care, and guardianship as a culturally appropriate path to permanency.

Amber Halldin on Tribal Civil Responses to Non-Indian Violence Against Women

Matthew L.M. Fletcher

Amber Halldin (my former student at UND!) has published “Restoring the Victim and the Community: A Look at the Tribal Response to Sexual Violence Committed by Non-Indians in Indian Country through Non-Criminal Approaches” in the North Dakota Law Review. An excerpt:

This article will examine how tribes respond to non-Indians that commit sexual violence against Native people in Indian country. Jurisdictional issues create particular problems for tribes to remedy the violence committed in their communities, because tribes are often forced to rely on non-criminal prosecution remedies. Through the use of traditional tribal punishments and newly developed tactics, Indian tribes are working towards better protecting their members despite federal law barriers.

Fletcher on “Laughing Whitefish” and Tribal Customary Law

Matthew L.M. Fletcher1 Comment

Matthew Fletcher posted “Laughing Whitefish: A Tale of Justice and Anishinaabe Custom” on SSRN. Here is the abstract:

Laughing Whitefish, a novel by Robert Traver, the pen name of former Michigan Supreme Court Justice John Voelker, is the fictionalized story of a case that reached the Michigan Supreme Court three times, culminating in Kobogum v. Jackson Iron Co., 43 N.W. 602 (Mich. 1889). The petitioner, Charlotte Kobogum, an Ojibwe Indian from the Upper Peninsula of Michigan, brought suit to recover under a note issued to her father, Marji Gesick, by the mining company in the 1840s. The company had promised a share in the company because he had led them to one of the largest iron ore deposits in the country, the famed Jackson Mine. Despite the company’s defense that Mr. Gesick was a polygamist and therefore Ms. Kobogum could not be his legitimate heir, the Michigan Supreme Court held that state courts had no right to interfere with internal, domestic relations of reservation Indians, and upheld the claim. Justice Voelker’s tale is a powerful defense of the decision, and offers insights into why state courts should recognize the judgments of tribal courts even today.

book cover of Laughing Whitefish by Robert Traver

Bethany Berger on Racism

Matthew L.M. Fletcher

Bethany Berger has posted her paper “Red: Racism and American Indians” on SSRN. It is forthcoming in the UCLA Law Review. Here is the abstract:

How does racism work in American Indian law and policy? Scholarship on the subject has too often assumed that racism works for Indians in the same way that it does for African Americans, and has therefore either emphasized the presence of hallmarks of White-Black racism, such as uses of blood quantum, as evidence of racism, or has emphasized the lack of such hallmarks, such as prohibitions on interracial marriage, to argue that racism is not a significant factor. This Article surveys the different eras of Indian-White interaction to argue that racism has been important in those interactions, but has worked in a distinctive way. North Americans were not primarily concerned with using Indian people as a source of labor, and therefore did not have to theorize Indians as inferior individuals to control that labor. Rather, the primary concern was to obtain tribal resources and use tribes as a flattering foil for American governments. Therefore it was necessary to theorize tribal societies as fatally and racially inferior, while emphasizing the ability of Indian individuals to leave their societies and join non-Indian ones. This theory addresses the odd paradox that the most unquestionably racist eras in Indian-White interaction emphasized and encouraged assimilation of Indian individuals. It contributes to the ongoing effort to understand the varying manifestations of racism in a multi-racial America. Most important, it provides a new perspective on efforts to curtail tribal sovereignty in the name of racial equality, revealing their connection to historic efforts to maintain the inferiority of Indian tribes by treating them as racial groups rather than political entities with governmental rights.

Paul Spruhan on the Canadian Indian Free Passage Right

Matthew L.M. Fletcher

Paul Spruhan, a law clerk for the Navajo Nation Supreme Court, has posed “The Canadian Indian Free Passage Right: The Last Stronghold of Explicit Race Restriction in United States Immigration Law,” forthcoming in the North Dakota Law Review. Here is the abstract:

The paper discusses the little-known provision of the Immigration and Nationality Act that allows Canadian Indians to cross the United States-Canada border free of visa and other immigration requirements. Noting that the provision restricts the right to persons of 50% or more “blood of the American Indian race,” the paper traces its origin in a 1928 statute that did not include the blood quantum requirement, the interpretation of the term “Indian” as used in the 1928 statute by the Immigration and Naturalization Service, and the reasons for the 1952 amendment that added blood quantum. The paper then discusses the constitutionality of the provision in light of the current approach of the United States Supreme Court to racial provisions in federal Indian law and immigration law.

2009 Speaker Series

Kate Fort

We’ve added our 2009 Speaker Series page to the blog.  Speakers this year include Justin Richland, Stuart Banner and Robert Dale Parker.  Click here for more information abou the speakers, their books and the tentative dates of the events.

Ann Tweedy on the Constitution, the Marshall Trilogy, and U.S. v. Lara

Matthew L.M. Fletcher

Ann Tweedy has posted “Connecting the Dots Between the Constitution, the Marshall Trilogy, and United States v. Lara: Notes Toward a Blueprint for the Next Legislative Restoration of Tribal Sovereignty” on SSRN. This paper is forthcoming in one my favorite journals, the University of Michigan Journal of Law Reform. Here is the abstract:

This law review article examines: (1) the underpinnings of tribal sovereignty within the American system; (2) the need for restoration based on the Court’s drastic incursions on tribal sovereignty over the past four decades and the grave circumstances, particularly tribal governments’ inability to protect tribal interests on the reservation and unchecked violence in Indian Country, that result from the divestment of tribal sovereignty; (3) the concept of restoration as illuminated by United States v. Lara, and finally (4) some possible approaches to partial restoration.

The article first evaluates the constitutional provisions relating to Indians and the earliest federal Indian law decisions written by Chief Justice Marshall on the premise that these two sources shed light on the upper limits of a potential legislative restoration of tribal sovereignty. Next, the article examines the judicial trend of divestment of tribal sovereignty, focusing particularly on the latest decisions that evidence this trend. The article further examines the negative effects of this divestment in Indian Country, from impeding tribes’ ability to provide governmental services and to protect their unique institutions, to problems of widespread on-reservation violence, particularly against Indian women. The article concludes that the judicial trend of divesting tribal sovereignty combined with these dire effects clearly demonstrate a need for restoration. Finally, the article examines the Lara holding and its implications for the types of restoration that will be upheld by Court, concluding with an examination of options for potential legislative restorations.

This looks like a very interesting paper, and may be the first paper that digests the recent scholarship on the scope of the Indian Commerce Clause from Pommersheim, Natelson, and others.

Law Journal Symposium on Climate Change and the Polar Regions

Matthew L.M. Fletcher

Sustainable Development and Policy, a law journal published at American University’s law school, has published an entire symposium issue on climate change and the polar regions (here).

At least two of the articles involve discussion of Indigenous peoples:

Ford, Supporting Adaptation: A Priority for Action on Climate Change for Canadian Inuit (p. 25)

Kazarian, The Forgotten North: Peoples and Lands in Peril (p. 46)