Scholarship

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)

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.