Scholarship

Patrick Macklem on Minority Rights in International Law

Matthew L.M. Fletcher1 Comment

Patrick Macklem has posted “Minority Rights in International Law” on SSRN. Here is the abstract:

Why should international human rights law vest members of a minority community – either individually or collectively – with rights that secure a measure of autonomy from the state in which they are located? To the extent that the field offers answers to this question, it does so from its deep commitment to the protection of certain universal attributes of human identity from the exercise of sovereign power. It protects minority rights on the assumption that religious, cultural and linguistic affiliations are essential features of what it means to be human. There exists an alternative account of why minority rights possess international significance, one that trades less on the currency of religion, culture and language and more on the value of international distributive justice. On this account, international minority rights speak to wrongs that that international law itself produces by organizing international political reality into a legal order. This account avoids the normative instabilities of attaching universal value to religious, cultural and linguistic affiliation and instead challenges the international legal order to remedy pathologies of its own making.

Benjamin Richardson on Indigenous Peoples and Environmental Governance

Matthew L.M. Fletcher

Benjamin Richardson has posted “Ties That Bind: Indigenous Peoples on Environmental Governance” on SSRN. This paper is forthcoming in the book, “Indigenous Peoples and the Law: Comparative and Critical Perspectives.” Here is the abstract:

Canvassing practices in many countries, this chapter analyses the relationships between Indigenous peoples and environmental governance. It examines the environmental values and practices of Indigenous peoples, primarily in order to assess their implications for the Indigenous stake in environmental governance. It identifies at least six major theories or perspectives concerning Indigenous environmental values and practices. Secondly, the chapter reviews the legal norms and governance tools that structure Indigenous involvement in environmental management, in order to assess their relative value for Indigenous stakeholders and implications for sustainable utilisation of natural resources.

“American Indian Education” Profiled by ICT

Matthew L.M. Fletcher

From ICT:

TEMPE, Ariz. – Matthew L.M. Fletcher is an associate professor at Michigan State University College of Law and he is the director of the Indigenous Law and Policy Center. He recently published, ”American Indian Education: Counternarrative in Racism, Struggle, and the Law” through Routledge. He graduated from University of Michigan Law School.

Indian Country Today: Why did you choose to pursue a career in law?

Matthew L.M. Fletcher: I just want to be able to contribute something to the community and I also was thinking in different ways, even before I started college, what I could do. I had talks with people who are from my community and elders from Michigan who talked a lot about how in the ’70s and ’80s, the big treaty fishing cases were going on and people were really happy with the outcomes with those cases but they were sad to see all the litigation conducted and organized and control by people that were not from the community.

ICT: Do you feel like you have helped your tribe?

Fletcher: I feel like I’ve contributed something and I continue to contribute something. My whole life will be a process of contributing. I think it has been real good.

ICT: What is the future of Indian law?

Fletcher: It’s interesting. The ’70s and ’80s were about litigating treaty rights. The key for Indian lawyers is not so much about going to court but it’s about developing governmental structures within the tribe which is what lawyers do. It’s actually a folly to go to federal courts now. All you have to do is ask anyone who does any kind of litigation in federal court if you’re representing a tribe or tribal interest you can’t expect to win. It’s going to be that way for a long time. The thing that you see is institution building within Indian country. There are some incredible things going on that are not getting a lot of attention. There is a lot of creativity with people bringing back indigenous culture and tradition.

ICT: How would you define sovereignty?

Fletcher: My view of sovereignty is that it is the right to make your own mistakes and to decide things for yourselves. That is really what it is about. Tribes have the wherewithal, the ability and the legal authority to pursue different avenues of governance. They are going to do something where everyone shakes their heads, and then they are going to do other things where people are going to just say, ”Wow.” There is an incredible amount of diversity and creativity going on right now.

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Jackie Hand on Climate Change Threat to American Indians

Matthew L.M. Fletcher

Jacqueline Hand has published “Global Climate Change: A Serious Threat to Native American Lands and Culture” in the Environmental Law Reporter. Here is the abstract:

During the past decade, public perception of global climate change has transformed from a gloom and doom scenario not to be taken seriously to a nearly universally recognized peril to the planet. Native Americans, especially those in the Arctic region, experience changes in climate with greater immediacy than the general population, and this disproportionate result is expected to become more severe as the effects of climate change escalate. This Article will explore the nature of the impact of climate change on Native Americans, the importance of including traditional tribal knowledge and expertise in understanding the crisis and developing adaptive mechanisms, and the responses by individual tribes as well as by indigenous people as a whole.

Ronald Krotoszynski on Employment Division v. Smith II

Matthew L.M. Fletcher

Ronald Krotoszynski has published “If Judges Were Angels: Religious Equality, Free Exercise, and the (Underappreciated) Merits of Smith” in the Northwestern University Law Review. Here is an excerpt from the introduction:

Thus, the standard approach is to link the importance of religious autonomy with a strict form of judicial scrutiny for governmental actions that have the incidental effect of denying religionists, including but not limited to members of minority religions, the ability to engage in religiously motivated conduct. Viewed from this vantage point, Smith is highly objectionable because it makes successful free exercise challenges to general laws virtually impossible to win. Even if the federal courts have not applied strict scrutiny in an exacting fashion, lowering the standard of review to mere rationality virtually ensures that most free exercise claims will fail. Thus, the Justices who support strict scrutiny of neutral laws of general applicability that burden religiously motivated practices, such as Justice Brennan and Justice O’Connor, object strenuously to Smith’s change in the governing standard of review from earlier cases, such as Sherbert and Wisconsin v. Yoder, the latter a case that upheld a free exercise claim brought by Amish parents who wished to remove their children from the public schools after the eighth grade. If the Free Exercise Clause exists to facilitate absolute religious autonomy, the Sherbert approach advocated by Justices Brennan and O’Connor would better honor free exercise values. At the very least, it certainly seems reasonable to frame the Free Exercise Clause in terms of religious autonomy.

Rather than as advancing religious liberty or autonomy values, one could alternatively conceive of the Free Exercise Clause as primarily promoting religious equality. If equality among sects is the primary purpose of the Free Exercise Clause, the Smith test (or something like it) might offer a better reading of the Clause than Sherbert and Yoder.

Bob Anderson on Treaty Substitutes in the Modern Era

Matthew L.M. Fletcher

Bob Anderson has posted “Treaty Substitutes in the Modern Era” on SSRN. This paper is a book chapter in the forthcoming book “The Power of Promises: Rethinking Indian Treaties in the Pacific Northwest,” edited by Alexandra Harmon.

Here is the abstract:

This chapter compares two modern Indian property settlements processes – the Alaska Native Claims Settlement Act and the Snake River Basin Water Rights Settlement – with the mode of agreements in the Pacific Northwest in the mid-19th Century.

Bob Miller on Intertribal and International Treaties for Economic Development

Matthew L.M. Fletcher

Bob Miller has posted “Inter-Tribal and International Treaties for American Indian Economic Development,” forthcoming in the Lewis & Clark Law Review. Here is the abstract:

American Indian Tribes and Indigenous peoples around the world are among the poorest groups in their countries. Economic development is an absolutely crucial issue for these governments and their people. Recently, two different efforts have been undertaken to create beneficial development based on treaties between Indigenous groups.

In August 2007, eleven American Indian Nations, Canadian First Nations, New Zealand Maori Iwis, and Australian Aborigine groups signed a treaty to engage in international economic activities. Dozens of other American Tribes and New Zealand Iwis have also signed this treaty or will do so in the next few months. In addition, Pacific Northwest Indian Tribes have drafted an inter-tribal treaty to facilitate the conduct of business on reservations.

This Article dissects these two treaties and addresses some of the unique legal issues that these treaties raise.

Lincoln Davies on Federal Trust, Tribal Sovereignty, and Environmental Policy

Matthew L.M. Fletcher

Lincoln Davies has posted “Skull Valley Crossroads: Reconciling Native Sovereignty and the Federal Trust,” forthcoming in the Maryland Law Review. Here is the abstract:

It has been long-recognized that a deep tension pervades federal American Indian law. The foundational principles of the field – on the one hand, the notion that tribes keep their inherent right of sovereignty and, on the other, that the federal government has a power and duty to protect them – clash on their face. Despite years of criticism of this conflict, the two principles continue to coexist, albeit uncomfortably. Using the example of the Skull Valley Band of Goshute Indians’ controversial proposal to store high-level nuclear waste on their land, this Article revisits the tension in these doctrines, weighs prior proposals attempting to reconcile them, and concludes that, ultimately, sovereignty and the federal trust are not reconcilable. Finding sovereignty superior -morally, historically, and politically – the Article thus offers a new model for promoting native sovereignty: allowing tribes to be treated similarly to states.

Alex Skibine on Formalism and Judicial Supremacy in Federal Indian Common Law

Matthew L.M. Fletcher

Alex Skibine has posted “Formalism and Judicial Supremacy in Federal Indian Common Law,” forthcoming in the American Indian Law Review. Here is the abstract:

In this article, Professor Skibine shows how in the last thirty years or so, the United States Supreme court has taken legal principles based on functionalism and transformed them into inflexible rules based on formalism. This has allowed the Court not only to rule against Indian tribal interests in 80% of its cases but also to achieve judicial supremacy in the field of Federal Indian law.

Davis and Washburn on Sex Offender Registration in Indian Country

Matthew L.M. Fletcher

Virginia Davis (NCAI) and Kevin Washburn (Arizona) have posted “Sex Offender Registration in Indian Country,” forthcoming in the Ohio State Journal of Criminal Law. Here is the abstract:

Congress was first confronted with the issue of sex offender registration following an incident at a BIA Indian school on the Hopi reservation after a BIA school teacher was convicted of molesting 142 Indian boys during a six-year period in the 1980s. The case, which resulted in a criminal conviction and a $50 million civil settlement, left a scar on the national consciousness. Despite this history, Congress all but ignored the needs of Indian victims and Indian tribes when it enacted the Sex Offender Registration and Notification Act as part of the Adam Walsh Act, mandating sex offender registration nationally. This essay criticizes this legislation and the undeliberative and unconsultative process that produced it. It concludes that the legislation might have been far more effective in dealing with sex crimes victimization on Indian reservations if Congress had embraced tribes as equal partners with states in implementing the law’s provisions. In the end, the law is likely to help least the very people who suffer from sex crimes the most. This tragedy could have been averted with a more thoughtful approach and greater recognition of the nuances of jurisdiction and insititutional capacity in Indian country.