Scholarship

Kristen Carpenter: “Real Property and Peoplehood”

Matthew L.M. Fletcher

Kristen Carpenter has published her excellent paper “Real Property and Peoplehood” in the Stanford Environmental Law Journal. Here is the abstract:

This Article proposes a theory of “real property and peoplehood” in which lands essential to the identity and survival of collective groups are entitled to heightened legal protection. Although many Americans are sympathetic to American Indian tribes and their quest for cultural survival, we remain unwilling to confront the uncomfortable truth that the very thing Indian peoples need is their land, the same land that the United States took from them. This is especially true with regard to Indian “sacred sites.” These are features of the natural landscape holding religious and cultural significance for American Indian tribes. The Supreme Court has held that destruction of sacred sites located on the public lands does not impinge on individual religious belief and falls within the government’s powers as a landowner. This is true even if the sacred site is unique and essential to a particular religious practice. Although recent federal policy has evolved in favor of accommodating Indian sacred sites practices, land management agencies use their considerable discretion to permit competing uses of the public lands–such as natural resource development and tourism–that threaten the physical integrity of sacred sites. Such decisions devastate Indian people and undermine our shared expectation of free exercise rights for all Americans. Thus, federal law needs to prioritize Indian interests in sacred sites over competing uses of the public lands. Unfortunately, we do not yet have a legal theory justifying such a position.
My theory of real property and peoplehood furthers the work of scholars who have recognized the relationship between human beings and property, albeit in other contexts. Most influentially, Professor Margaret Jane Radin *314 has long argued for special legal protection of property that expresses an individual’s sense of self and therefore cannot be translated into a monetary value. But whereas Radin focuses on property that expresses individual personhood, I am interested in property that expresses collective “peoplehood.” As a descriptive matter, this concept of peoplehood reflects that, even in the United States where the individual rights paradigm dominates, individuals affiliate themselves along sub-national political, religious, ethnic, and cultural lines and their exercise of fundamental liberties occurs in those contexts. As a normative concept, John Rawls has argued that as a matter of “reasonable pluralism,” liberal states like the United States should recognize peoples and treat them fairly. To do otherwise is to fall short of our best democratic principles, such as the idea that all Americans are entitled to religious freedom. Working at the confluence of Radin and Rawls, the Article argues that Indian tribes are peoples whose legitimate interests in sacred sites deserve special legal protection as a testament to American liberty for both individuals and groups.

Rob Porter: “American Indians and the New Termination Era”

Matthew L.M. Fletcher

Rob Porter has a new article in the Cornell Journal of Law & Public Policy, “American Indians and the New Termination Era.” From the article:

I will first examine some of the legal and policy trends in America’s treatment of Indians that are currently taking place. For several years now, I have thought that the study of America’s so-called Indian law is completely predictable and intellectually moribund. Recently, however, there have been competing developments emanating from the Supreme Court and the Congress–for example the recent decision in United States v. Lara and the development of the Self-Governance Program–that offset my concerns that a neo-termination policy has fully emerged. Examining the current policy trends and predicting where things are headed presents an interesting forensic examination.
Secondly, because I am generally an optimist and believe that there must be a silver lining somewhere within these antagonistic developments, I will examine what I perceive to be the opportunities that lie in the current policy landscape. These may not be intuitive assessments for anyone who genuinely believes that the Self-Determination Policy is really working. But opportunities do exist, and they should be better understood in order to seize upon them.
Lastly, I will examine this whole policy quandary from a normative perspective. For the entirety of American history, the United States has basically approached policy questions involving the Indians from one simple perspective –” what do we do with them?” Well, the other side of that policy question is rarely asked, which is, “what do we Indians want for ourselves?”
This is an important question to answer as Native peoples take more control over our own lives. But the question is more difficult than one might think. There is very real tension for Indians in this day and age between choosing the easy path towards living the good life as a member of American society, or choosing the traditional and more difficult path of struggling to preserve life as free and distinct peoples and nations. Compounding the difficulty of this choice is the fact that, because of our inherent differences and generations of colonization-induced social and cultural change, Indians today see the world through very different lenses. Understanding what exactly is happening to us, much less being able to respond coherently, makes the goal of formulating Indigenous survival strategies especially challenging.

andre douglas pond cummings on American Indian Sports Mascots

Matthew L.M. Fletcher

andre douglas pond cummings has posted “Progress Realized?: The Continuing American Indian Mascot Quandary,” published in the Marquette Sports Law Journal, on SSRN. Here is the abstract:

To some, American Indian mascots represent strength, power, reverence, and dignity. For others, Native American mascots are deeply offensive and mock tradition and sacred culture. Historically, professional and collegiate athletic teams have unabashedly sported American Indian mascots and monikers, and it has not been until recent decades that this issue has arisen as offensive or insensitive. In the past thirty or so years, there have been many high school and university administrations that have voluntarily switched their team mascot and moniker from an American Indian to a race-neutral one. Still, some university administrations and many professional sports franchises strenuously eschew calls to remove these racially insensitive mascots, believing that their moniker represents tradition and honor and as such remains a vital part of school or team tradition. These proponents argue that the elimination of their Native American mascot at their sporting events would destroy the cultural fabric of their respective institutions. Therefore, the use of these mascots is justified in the minds of these proponents.

Still, some identifiers indicate that as a society, we have entered into a period where more Americans are aware that American Indian mascots offend Native Americans and other non-native U.S. citizens alike. This enlightenment has resulted in the increasing number of sporting teams that have voluntarily changed their offensive mascot and moniker. That said, some institutions, such as the University of North Dakota (Fighting Sioux) and Florida State University (Seminoles) and the University of Utah (Utes) continue to field mascots and monikers that many view as hostile and abusive.

The law and popular opinion continues to evolve while some cling desperately and unapologetically to derogatory traditions.

Eric Davis (Mich. Law Student) on ICWA

Matthew L.M. Fletcher

Eric Davis, an Indian law student at Michigan, published “In Defense of the Indian Child Welfare Act in Aggravated Circumstances” in the Michigan Journal of Race & Law (13 Mich. J. Race & L 433). From the abstract:

The Indian Child Welfare Act (ICWA) affords various protections to Indian families throughout child welfare proceedings. Among them is the duty imposed upon the state to provide rehabilitative services to families prior to the outplacement of an Indian child, or termination of parental rights. An analogous provision for non-Indians in the Adoption and Safe Families Act (ASFA) excuses rehabilitative services in “aggravated circumstances” of child abuse. The ICWA contains no such exception, and that absence has been controversial.
In 2002, the Alaska Supreme Court applied ASFA’s aggravated circumstances exception to the ICWA, thereby excusing services when a father severely abused his three Native children. In 2005, the South Dakota Supreme Court addressed the same issue, but expressly refused to engraft such an exception into the ICWA. This Note defends South Dakota’s position on policy grounds. It chiefly argues that an aggravated circumstances exception would do violence to the ICWA and its family preservation goals, and further that such an exception is unnecessary to protect Native children from dangerous parents.

“American Indian Education” Published TODAY

Matthew L.M. Fletcher2 Comments

My book, “American Indian Education: Counternarratives in Racism, Struggle, and the Law,” is being published today by Routledge (if the website is to be believed). You can download the introduction and table of contents on SSRN (here).

Patrick Garry et al. on Tribal Incorporation of First Amendment Norms

Matthew L.M. Fletcher

Patrick M. Garry (South Dakota), Candice Spurling (South Dakota), Jennifer Keating (South Dakota), and Derek Nelson (South Dakota) have posted “Tribal Incorporation of First Amendment Norms: A Case Study of the Indian Tribes of South Dakota” on SSRN, recently published in the South Dakota Law Review.

From the abstract:

This article analyzes how Indian tribal courts have incorporated First Amendment norms within tribal legal systems. Given the more traditionally communal nature of tribal societies, Indian tribal courts have taken a slightly different approach to the kind of individual rights articulated in the First Amendment. As this article demonstrates, tribal courts have elevated community interest and values when considering individual rights issues. The ways in which those interests and values have been elevated may prove instructive to those who advocate a more balanced approach to First Amendment freedoms within the U.S. judicial system.

The article examines the legal obligation imposed on Indian tribes to protect certain individual rights, and whether the First Amendment applies to Indian tribes, and finally how the Indian Civil Rights Act applies. The article analyzes how federal courts have interpreted the Indian Civil Rights Act and surveys Indian tribal court decisions concerning individual rights issues such as free speech, free press, and free exercise of religion.

The final part of the article analysis turns away from reported tribal court decisions and focuses on tribal political, social, and cultural issues relating to First Amendment-type rights. In this respect, the article focuses exclusively on the nine tribes of South Dakota, exploring how First Amendment-type issues have arisen within those tribes and how they have been resolved outside of the judicial system.

Indian Law Professor Newsletter

Matthew L.M. Fletcher

Thanks to Judy Royster for putting this together!

newsletter-2008-may

Jacob Levy on Constitutions without Social Contracts

Matthew L.M. Fletcher

Jacob Levy has posted “Not so Novus an Ordo: Constitutions without Social Contracts,” forthcoming in Political Theory, on SSRN (H/t Legal Theory Blog). It has an interesting discussion of U.S. v. Lara. Here is the abstract:

Social contract theory imagines political societies as resting on a fundamental agreement, adopted at a discrete moment in hypothetical time, that both bound individual persons together into a single polity and set fundamental rules regarding that polity‘s structure and powers. Written constitutions, adopted at real moments in historical time, dictating governmental structures, bounding governmental powers, and entrenching individual rights, look temptingly like social contracts reified.

I argue in this article, however, that something essential is lost in the casual slippage between social contract theory and the practice of constitutionalism. Enacted constitutions do not come into being against the background of a state of nature of isolated individuals; and by this I do not mean to invoke the too-familiar critique of the supposedly decontextualized liberal person, but rather to critique the aspiration to decontextualize the legal and political order. Constitutions are enacted in ongoing societies (whether newly politically sovereign or otherwise) with pre-existing laws and legal systems, political organizations, cultural and linguistic and religious divisions, and norms and mores. Moreover, the practice of constitutionalism is usually, at least in part, a practice of reconciling those legacies to a new political order, of making use of those legacies to build loyalties to or counterbalances against the state (or both). Most constitutions cannot be well-understood by retrospectively characterizing them as the kind of complete and radical break with the past envisioned by social contract theory.

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Kannan on the Constitutionality of the 1871 Act re: Treaty-Making with Indian Tribes

Matthew L.M. Fletcher

Phillip M. Kannan has published “Reinstating Treaty-Making with Native American Tribes” in the William and Mary Bill of Rights Journal. An excerpt:

This Article proceeds as follows. The legal history of treaties and treaty-making with Indian tribes and the significance of these treaties to United States law are explored in Part I. The dissatisfaction of the House of Representatives with the practice of Indian policy being established by the President with the advice and consent of *813 the Senate is outlined in Part II. Part III then recounts major legislation that followed the enactment of section 71 and the harm these laws caused Indian tribes. In Part III, I also analyze the mischaracterizations of that law by the Supreme Court and the harm this has caused. Building on this background, Part IV develops the argument that section 71 violates the express provisions of the Constitution and the political theory on which it was based; Part V analyzes applicable Supreme Court precedent and concludes that section 71 violates the principles established by these cases; and Part VI argues that it is inconsistent with a theory developed by Justice Kennedy, namely, the guarantee of political liberty provided to each citizen by the federal structure of the Constitution. Part VII then explores the constitutional consequences that would follow from upholding section 71. I conclude with some suggestions of how section 71 could be repealed or overturned.

Lewis & Clark Indigenous Economic Development Conference Podcast Now Available

Matthew L.M. Fletcher

Here.

May 1st, 2008

Business Law Symposium 2008
Indigenous Economic Development: Sustainability, Culture and Business Agenda
April 4, 2008
Spring Symposium 2008

This conference brings together scholars from around the country, most of whom are tribal citizens and experienced in economic development, to discuss the practical and the theoretical issues facing American Indian governments in their task to bring economic development to their reservations that is both profitable, sustainable, and culturally appropriate.

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