Scholarship

“In Defense of Property” from Kristen Carpenter, Sonia Katyal & Angela Riley

Matthew L.M. Fletcher

Kristen Carpenter, Sonia Katyal, and Angela Riley have posted “In Defense of Property” on SSRN. Here is the abstract:

This Article advances a comprehensive theory to explain and defend the emergence of indigenous cultural property claims. In doing so, it offers a vigorous response to an emerging view, in scholarship and popular society, that it is normatively undesirable to employ property law as a means of protecting indigenous culture and ideas. In our view, cultural property critiques arise largely because of the absence of a comprehensive and countervailing theory of indigenous cultural property. To remedy this absence, this Article articulates a robust theory of indigenous property that challenges the individual rights paradigm animating current property law. Specifically, this piece makes two broad contributions to existing property theory. First, it draws on but departs significantly from Margaret Jane Radin’s groundbreaking work linking property and ‘personhood,’ and defends cultural property claims, in contrast, within a paradigm of ‘peoplehood.’ Second, this piece posits that, whereas individual rights are overwhelmingly advanced by property law’s dominant ownership model, the interests of peoples, particularly indigenous peoples, are more appropriately and powerfully effectuated through a theory of property characterized most aptly by stewardship.

As this Article demonstrates, our stewardship paradigm suggests a theory of property that goes far beyond the cultural property context, with implications for property law generally. By introducing a fundamental paradigm shift that locates the metaphorical bundle of rights within non-owners as well as owners, we highlight non-owners’ duties and rights to tangible and intangible goods, even in the absence of title or possession. This Article draws on a wealth of literature from the corporate, environmental, and indigenous contexts to introduce an innovative framework for rethinking ownership altogether. Ultimately, our stewardship theory of property makes a significant contribution to the field, filling an existing void in property theory and adding a much-needed perspective to the ongoing debate over cultural property protections.

Carrie Garrow on Haudenosaunee Land Claims

Matthew L.M. Fletcher

Carrie Garrow has published “Following Deskaheh’s Legacy: Reclaiming the Cayuga Indian Nation’s Land Rights at the Inter-American Commission on Human Rights” in the Syracuse Journal of International Law and Commerce. Here is the intro:

Deskaheh, Chief of the Younger Bear Clan of the Cayuga Nation in the 1920s, prepared the path for international recognition of Haudenosaunee (People of the Longhouse) sovereignty and human rights. An eloquent orator and resolute leader, he spent many years advocating for international recognition of Haudenosaunee sovereignty and treaty violations by Canada. In 1921, as Speaker of the Six Nations Council, he traveled on a passport issued by his nation to seek British aid to halt Canada’s attempt to overthrow the traditional form of government and impose an elected band council. Despite failing to convince the British to intervene and protect the treaty they had signed with the Six Nations living in Grand River, Deskaheh returned to Europe in 1923. He traveled to Geneva to “bring his peoples’ case before the League of Nations.” While he fought to receive permission to appear before the League, the Canadian government, in violation of Haudenosaunee sovereignty and treaties, announced a “free election” under armed guard of twenty Canadian police at Grand River to determine whether or not the Six Nations Government of Grand River Land should be dissolved. Meanwhile back in Geneva, Deskaheh was denied permission to appear before the League’s plenary session, despite the Netherlands and Albania’s support of his petition. Determined to educate the world about the violation of his people’s rights, Deskaheh presented his nation’s case at a press conference attended by many nations and “[w]hen he finished, there was a moment of silence–then the roar of a tremendous ovation. Thousands rose to their feet to cheer him and the great hall echoed and re-echoed with their applause.” At the end of 1924, Deskaheh returned to the United States, an exile from Canada unable to cross the border. Although Deskaheh thought himself a failure, “he found that the people for whom he had fought did not think him a failure. From their northern homes in Grand River Land, they journeyed here to see him and assure him of their loyalty.”

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Kate Fort on The New Laches

Matthew L.M. Fletcher

Kate Fort of MSU College of Law has posted “The New Laches” on SSRN. This is the first comprehensive and historical study of the application of laches doctrine to sovereigns, federal, state, and tribal. Here is the abstract:

Tribal land claims are facing a new challenge from an old area of law. Courts have been paying special attention to the law of equity and how it can defeat tribal land claims. Specifically, the equitable defenses of laches, acquiescence, and impossibility were used by the Supreme Court 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. But are these three defenses based on precedent themselves? Rarely. Instead, they have been combined to create a new defense, what I will call the “new laches.” This new defense, so far used successfully in Indian land cases in New York state and unsuccessfully elsewhere, has been so broadly construed by the Second Circuit that, if this view is adopted nationwide, it could apply to any treaty-based claim brought by Indians or Indian tribes.

Indian Tribal Businesses and the Off-Reservation Market

Matthew L.M. Fletcher

My submission to the Lewis & Clark Law Review’s symposium issue on tribal economic development, “Indian Tribal Businesses and the Off-Reservation Market” is on SSRN. If it’s not available yet, it will be in a few days. Here’s the abstract:

The pre-American trading centers of the Great Lakes – Sault Ste. Marie, Michilimackinac, and Detroit – developed as natural manifestations of economic activity involving the Indigenous peoples of the region, as well as the French, the British, and lastly the Americans. In many ways, during that period, the Indian people controlled these markets. As history turned against the Indians, the Europeans acquired control of these markets. The federal Indian law and policy manifestation of this control can be explained in the phrase “measured separatism.” While measured separatism had value for Indian and American communities for a time, as well as serious disadvantages, the need Indian law controls over the market has receded to a significant extent. The recent limitations on off-reservation gaming are manifestations of this measured separatism. These controls should be a call for tribal business interests to drop some of their reliance on federal Indian law, which creates some economic advantages, and re-enter the larger economic world.

Gary Simson on Native American Religious Freedom & State Law

Matthew L.M. Fletcher

Gary Stimson has posted “Reflections on Religious Freedom: Revisiting ‘Rourke v. Department of Correctional Services,'” published in the Albany Law Review. Here is the abstract:

This contribution to a symposium on religious liberty looks closely at a New York case that illustrates both the inadequacy of federal free exercise law and the importance of state constitutional law. The claimant in the case, a Native American prison guard, had been fired for refusing on religious grounds to abide by a state-wide directive governing prison guards’ hair length. Contrasting the serious burden that the directive placed on the claimant’s religious liberty with the weak justifications that the state offered for requiring the claimant’s adherence to the directive, the article argues the implausibility of the narrow interpretation of the federal Free Exercise Clause that the Supreme Court adopted in 1990 in Employment Division v. Smith. The article then uses the New York case to demonstrate the potential for circumventing the shortcomings of Smith by attention to, and development of, state constitutional law.

Sarah Krakoff on American Indians and Climate Change

Matthew L.M. Fletcher

Sarah Krakoff has published “American Indians, Climate Change, and Ethics for a Warming World” in the Denver University Law Review.

From the introduction:

American Indian tribes and people have contributed very little to the causes of global warming, yet for geographic, cultural, and demographic reasons, they stand to suffer disproportionately from global warming’s negative effects. A recent study, Native Communities and Climate Change, prepared by the Natural Resources Law Center at the University of Colorado Law School, documents that these effects include, among others, threats to traditional hunting and gathering, destruction of tribal villages in Alaska, increased pressure on tribal reserved rights to water in the arid Southwest, and inundation of reservation lands in Florida. The disproportion between tribal contributions to global warming and the negative impacts on tribes qualifies this as an environmental justice issue. As the Native Communities and Climate Change Report suggests, a complex of legal rights, in conjunction with Congress’s moral obligation to tribes, provides the foundation and incentive for the federal government to take action to address these impacts.

Judith Younger on Teaching Indian Law and Marital Property

Matthew L.M. Fletcher

Judith Younger has published her talk “Across Curricular Boundaries: Searching for a Confluence between Marital Agreements and Indian Land Transactions” in the Journal of Law & Inequality. Here is an excerpt:

Students view Johnson v. McIntosh with a jaundiced eye. To them, it is a case of Indians against Europeans. I point out that there were no Indian parties to the litigation, just two groups of European land speculators. I also point out that the Indians did well in this particular trade; they sold and got paid for the same land twice. The students are unmoved. “The Indians were here first,” they say. “Justice thus demands a decision for plaintiffs who claim through them.” “What about the fact that the land purchases were clearly illegal?” I ask. The students reject that too. They say the Europeans “owned” the legal system; it was skewed against the Indians. They tell me–as if I did not know it–that now the Indians have lost all but a tiny fraction of their original lands and that their efforts to regain those lands are a continual source of tension in our society.

Tribal Judge Korey Wahwassuck on Tribal Court Jurisdiction

Matthew L.M. Fletcher1 Comment

Leech Lake Band of Chippewa Indians Chief Judge Korey Wahwassuck has published “The New Face of Justice: Joint Tribal-State Jurisdiction” in the Washburn Law Journal.

This piece covers the watershed agreement between the Leech Lake Band and the Cass County District Court.

Jacob Levy — “Three Perversities of Indian Law”

Matthew L.M. Fletcher

Jacob Levy has published his “Three Perversities of Indian Law” in the Texas Review of Law and Politics.

Congrats to Stacy Leeds

Matthew L.M. Fletcher

From Indianz:

Stacy Leeds, a professor at the University of Kansas School of Law, will develop a comprehensive history of the Freedmen of the Cherokee Nation for a fellowship she was awarded by the Fletcher Foundation.

Leeds, a tribal member, was a former justice for the Cherokee Nation’s highest court. She wrote the decision that said the Freedmen were entitled to citizenship. Leeds subsequently ran for chief but lost to incumbent Chad Smith. Smith believes the tribe has a right to deny citizenship to the Freedmen. Leeds was awarded $50,000 fellowship and must complete her project within a year.

Get the Story:
Kansas Law Professor Named Fletcher Fellow (DIVERSE 7/10)
Friend of CAHC awarded Fletcher Fellowship (The Muskogee Phoenix 7/10)

Cherokee Nation Judicial Appeals Tribunal Decision in Freedmen Case:
Allen v. Cherokee Nation (March 7, 2006)