Scholarship

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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Research Note on Barriers to Indian Land Claims

Matthew L.M. Fletcher1 Comment

I’ve posted a short paper called “‘Now What the Hell You Gonna Do in Those Days?’ A Research Note on Practical Barriers to Indian Land Claims” on SSRN. Here is the abstract:

There are extra-legal barriers that American Indian people faced when confronted with the illegal theft of their lands, or with any dispossession of their lands. Indian tribes and Indian people faced numerous practical barriers to bringing land and treaty claims prior to the modern era, including without limitation: (1) lack of financial resources; (2) lack of knowledge and sophistication about the American legal system; (3) demoralization; (4) lack of a clear and authorized tribal governmental plaintiff; and (5) government interference and control over tribal affairs.

For Indian tribes pursuing a remedy for these claims, there is a significant defense raised – why didn’t the tribes or the Indians bring these claims before? Since the Supreme Court decided Sherrill v. Oneida Indian Tribe, the equitable defense of laches has been raised by states, local units of government, and property owners against the tribal claims with frightening success rates. The defense is superficially compelling in large part because the practical reasons for failing to bring suit decades sooner might not be considered excusable.

In a pending case, Oneida Indian Nation v. County of Oneida, the National Congress of American Indians attempted to flesh out the practical barriers to tribal land claims in an amicus brief. This short Essay attempts to add to that research. But the ultimate purpose of this Essay is to call for serious empirical research on this difficult question – why didn’t Indians and tribes file suit to vindicate their rights to land?

Rose Villazor on Indian Blood Quantum and Equal Protection

Matthew L.M. Fletcher

Rose Cuison Villazr (SMU) has posted her wonderful paper, “Blood Quantum Land Laws and the Race Versus Political Dilemma,” forthcoming in the California Law Review, on SSRN. Here is the abstract:

Modern equal protection doctrine treats laws that make distinctions on the basis of indigeneity defined on blood quantum terms along a racial versus political paradigm. This dichotomy may be traced to Morton v. Mancari and, more recently, to Rice v. Cayetano. In Mancari, the Supreme Court held that laws that privilege members of American Indian tribes do not constitute racial discrimination because the preferences have a political purpose – to further the right of self-government of federally recognized American Indian tribes. Rice crystallized the juxtaposition of the racial from the political nature of indigeneity by invalidating a law that privileged Native Hawaiians. That law, according to the Court, used an ancestral blood requirement to construct a racial category and a racial purpose as opposed to the legally permissible political purpose of promoting the right of self-government of American Indian tribes.

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Student Author on Tribal Courts

Matthew L.M. Fletcher

R. Stephen McNeil, a law student at Washington & Lee, has posted “In a Class by Themselves: a Proposal to Incorporate Tribal Courts into the Federal Court System Without Compromising Their Unique Status as “Domestic Dependent Nations” on SSRN. Here is the abstract:

This Note proposes a solution to the longstanding problem of how to fit tribal courts into the existing federal court system. After setting forth the well-established problems with the current system, the Note discusses the various practical and constitutional problems with classifying Indian tribes as states, foreign nations, administrative agencies, or federal territories. Ultimately, the Note proposes a statutory scheme that is tailored to the unique situation of the Indian tribes by focusing on the competing goals of protecting tribal culture, maximizing tribal sovereignty, and protecting the rights of non-Indians from abuses in tribal courts.

Aside from the hanging modifier in the title, looks like a decent paper. I’m glad to see students from schools that aren’t known for teaching Indian law taking a stab at this field.