Scholarship – Page 157

Reminder: Felix Cohen’s Indian Law Legacy — Friday, March 28, 2008

March 27, 2008Matthew L.M. Fletcher

Tomorrow, we host “Felix Cohen’s Indian Law Legacy.” Speakers include Bethany Berger, Sam Deloria, Sam Hirsch, Riyaz Kanji, and Christian McMillen.

Here’s the poster.

Angelique Eaglewoman: The Philosophy of Colonization Underlying Taxation Imposed Upon Tribal Nations within the United States

March 26, 2008Matthew L.M. Fletcher

Angelique Eagelwoman (soon to be at Idaho Law) has posted “The Philosophy of Colonization Underlying Taxation Imposed Upon Tribal Nations within the United States” on SSRN. Here is the abstract:

Tribal Nations are inherently sovereign by internal definition as well as by classic European political science theory. Voluntary wealth distribution was the basis for the functioning of tribal government rather than externally imposed demands for pro rata shares of individual tribal member income. Through treaty-making with Tribal Nations, the United States expanded and asserted its ability to govern the influx of European immigrants and captive Africans by recognizing tribal territorial boundaries and seeking peaceful relations. Within the United States Constitution, Tribal Nations are mentioned in terms of not being taxed and as engaged with Congress in terms of commerce. Despite this history, U.S. relations shifted on one of military dominance over Tribal Nations skewing the sovereign-to-sovereign relationship set forth in treaty agreements.

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Philips: “Indigenous Rights, Traditional Knowledge, and Access to Genetic Resources”

March 25, 2008Matthew L.M. Fletcher

Valerie Philips (Tulsa) posted “Indigenous Rights, Traditional Knowledge, and Access to Genetic Resources: New Participants in International Law Making” on SSRN. Here’s the abstract:

Being able at least to imagine the demise of the nation-state is critical to understanding how the contemporary nation-state relates to indigenous peoples. Neither Third World Approaches to International Law (TWAIL) nor Critical Race Theory (CRT) has effectively analyzed the impact of indigenous peoples concerns on international law, although both have tried to incorporate indigenous peoples into their respective modes of thinking. This is because TWAIL and CRT continue to focus fundamentally on the goals and advocacy of nationalist elites formed during the so-called post-colonial era. Indigenous peoples are lumped into social movements as if their interests cannot be distinguished from those of the mass of civil society. Scholars who take a grassroots, decolonizing approach, such as Maori professor Linda Tuhiwai-Smith, are much better suited to the task of analyzing the relationships among the nation-state, international laws surrounding traditional knowledge, and the rights of indigenous peoples.

Clarkson: “Accredited Indians”

March 25, 2008Matthew L.M. Fletcher

Gavin Clarkson posted “Accredited Indians: Increasing the Flow of Private Equity into Indian Country as a Domestic Emerging Market” on SSRN (and BEPRESS). Here’s the abstract:

Indian Country is America’s domestic emerging market, and as in a number of emerging markets, many successful businesses in Indian Country are starving for expansion capital. The US Treasury estimates that the private equity deficit in Indian Country is $44 billion. While the handful of wealthier tribes might be logical investors in private equity funds deploying capital in Indian Country, the existing securities laws present a significant impediment. In particular, Regulation D of the Securities Act of 1933 does not treat tribes as “accredited investors,” thus denying those tribes the ability to participate in the private equity market. Since there is no principled reason to exclude tribes from the list of accredited investors, this article makes the case for extending accredited investor status to tribes.

New Book: “Buffalo Inc.” by Sebastian Braun (UND)

March 17, 2008Matthew L.M. Fletcher1 Comment

From the University of Oklahoma Press:

Buffalo Inc.
American Indians and Economic Development
By Sebastian Felix Braun
<!–By Sebastian Felix Braun
–>
Buffalo as a business on the Cheyenne River Sioux Reservation

Some American Indian tribes on the Great Plains have turned to bison ranching in recent years as a culturally and ecologically sustainable economic development program. This book focuses on one enterprise on the Cheyenne River Sioux Reservation to determine whether such projects have fulfilled expectations and how they fit with traditional and contemporary Lakota values.

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Rebecca Tsosie on Environmental Justice

March 13, 2008Matthew L.M. Fletcher

Rebecca Tsosie has published “Indigenous People and Environmental Justice: The Impact of Climate Change” with the University of Colorado Law Review. Here is the abstract:

The international dialogue on climate change is currently focused on a strategy of adaptation that includes the projected removal of entire communities, if necessary. Not surprisingly, many of the geographical regions that are most vulnerable to the effects of climate change are also the traditional lands of indigenous communities. This article takes the position that the adaptation strategy will prove genocidal for many groups of indigenous people, and instead argues for recognition of an indigenous right to environmental self-determination, which would allow indigenous peoples to maintain their cultural and political status upon their traditional lands. In the context of climate change policy, such a right would impose affirmative requirements on nation-states to engage in a mitigation strategy in order to avoid catastrophic harm to indigenous peoples. This article argues for a new conception of rights to address the unique harms of climate change. An indigenous right to environmental self-determination would be based on human rights norms in recognition that ‘sovereignty claims‘ by indigenous groups are not a sufficient basis to protect traditional ways of life and the rich and unique cultural norms of such groups. Similarly, tort-based theories of compensation for the harms of climate change have only limited capacity to address the concerns of indigenous peoples.

Erwin Chemerinsky on Michigan’s Prop 2

March 10, 2008Matthew L.M. Fletcher

Erwin Chemerinsky’s talk about direct democracy and Prop 2 (with the Orwellian name “Civil Rights Initiative”) has been published in our own Michigan State Law Review. The talk is called “Challenging Direct Democracy.”

Here’s the introduction:

The Civil Rights Initiative in Michigan was adopted the day before this symposium on direct democracy was held at Michigan State University College of Law.

Let there be no doubt of its effects: it’s going to be a devastating event for individuals of color throughout Michigan. I can back this up by the experience of California, after a similar initiative, also championed by Ward Connerly, was passed there in 1996. Statistics are available about the effect on admissions at the University of California Law Schools in the five years immediately after the passage of what was called their Proposition 209. The percentage of minority students at state law schools, like UCLA and Boalt, is a fraction of what it was at comparable private schools like Stanford and U.S.C. The same effects have been seen in government contracting and employment.

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Ellen Kohler on Water Management in Michigan

March 10, 2008Matthew L.M. Fletcher

Ellen Kohler has published “Ripples in the water: judicial, executive, and legislative developments impacting water management in Michigan” as the lead article in Volume 53 of the Wayne Law Review.

Here is the introduction to this interesting paper:

Michigan is defined by water. The two peninsulas touch four of the five Great Lakes, creating 3,300 miles of Great Lakes shoreline. We enjoy 35,000 inland lakes and ponds, and 34,000 miles of rivers. Michiganders are very aware of our surface waters-we swim, fish, and boat in them. We see them on our maps of the state.

The water underground is more of an afterthought. Most of us don’t know how far underground the water is, where it is, or how it moves. Yet, groundwater is essential for our public health, safety, and welfare.

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Empirical Research on Tribal Courts and Customary Law Posted on SSRN

March 6, 2008Matthew L.M. Fletcher

My working paper, “Tribal Courts, the Indian Civil Rights Act, and Customary Law: Preliminary Data,” has been posted on SSRN. Chi-miigwetch to Alicia Ivory for all her hard work in helping with the research (you can see her contributions in the lengthy appendices at the end of the paper).

Here’s the abstract:

This study is an attempt to assess the validity of my theory that tribal courts do not apply “unusually difficult” laws in cases involving nonmembers. I theorized that in most cases (if not the vast, overwhelming majority), tribal courts apply a kind of “intertribal common law,” which consists of the application of tribal statutes that mirror federal and state statutes and the federal and state cases that interpret them.

Of the 120 cases involving an ICRA issue, tribal court judges applied federal and state case law as persuasive (and often controlling law) in 114 cases (95 percent). And, of the six cases in which the tribal court explicitly refused to apply federal or state case law, either the parties involved tribal members in a domestic dispute or else the tribal court held that its interpretation of the substantive provisions of ICRA were stronger or more protective of individual rights than would otherwise be available in parallel federal or state cases.