“A Review of the Indian Child Welfare Act, M.C.R. 2.615, and Tribal Court Jurisdiction in Michigan Family Law Cases,” by Kathyrn Fort.
From the Michigan Child Welfare Law Journal [scroll to page 11].
Scholarship
“Preconstitutional Federal Power” Article
My paper on “Preconstitutional Federal Power” has been published by the Tulane Law Review. You can download it here.
Here’s the abstract:
In two fields of constitutional law, the Supreme Court has acknowledged that the federal government may possess preconstitutional power, or national authority derived not from the Constitution but from the very fact of sovereignty. This Article analyzes the two areas of law – the Foreign Affairs Power and the Indian Affairs Power – and assesses their viability in future cases. The case recognizing a preconstitutional Foreign Affairs Power resting with the Executive branch, United States v. Curtiss-Wright Export Corp., suffers from poor historical reasoning and has little precedential weight in modern foreign affairs cases, but has never been overruled. The Indian Affairs Power case, United States v. Lara, decided in 2004, included no historical reasoning and only offered the theory as dicta. However, the Court raised the theory, perhaps, as a means of placating the textualists on the Court who do not view the Indian Commerce Clause as a viable source of Congressional power in Indian Affairs. This Article offers a best defense for the proposition that Congressional plenary power in Indian Affairs might derive from a preconstitutional source, a defense that includes the original understanding of the Indian Affairs Power and that, unlike the Foreign Affairs Power, did survive the ratification of the Constitution.
Cooter and Fikentscher on Tribal Codes
Robert Cooter and Wolfgang Fikentscher have just published “American Indian Law Codes: Pragmatic Law and Tribal Identity” in the American Journal of Comparative Law. Here is the abstract:
The United States has recognized the power of American Indian tribes to make laws at least since 1934. Most tribes, however, did not write down many of their laws until the 1960s. Written laws have subsequently accumulated in well-organized codes, but scholars have not previously researched them. Using written materials and interviews with tribal officials, we describe the scope, motivation, and interpretation of tribal codes. With respect to scope, we found nine main types of codes that cover almost all fields of law over which tribes have jurisdiction. Few tribes have all nine types of codes. Tribes have internal and external motivations for codifying. Internal motivations include preserving culture, maintaining social order, and encouraging economic development. Financial incentives and demands for transparency supply outside motivation. Tribal officials interpret codes pragmatically, which resembles interpretation of codes in continental Europe. Finally, we note that law and justice sometimes require state or federal courts to use a tribal code to decide a case, but they seldom do so, which undermines tribal power and identity.
Indigenous Law Journal Call for Submission
The Indigenous Law Journal at the University of Toronto Faculty of Law
is accepting submissions for Volume VII (Fall 2008). Please circulate
and post widely (Poster).
The submissions deadline is: January 21, 2008.
Political Status of Indian Tribes Article in St. John’s Law Review
My new article, “The Original Understanding of the Political Status of Indian Tribes,” published in the St. John’s Law Review is here.
Here’s the introduction:
Stuart Banner’s New Book on Indigenous Land Dispossession
It’s called “Possessing the Pacific: Land, Settlers, and Indigenous People from Australia to Alaska.” Harvard University Press published it.
You can read all about it at the Legal History Blog.
Paul Spruhan on Indian Blood Quantum under the IRA
Paul Spruhan, a clerk for the Navajo Nation Supreme Court, has posted “Indian as Race/Indian as Political Status: Implementation of the Half-Blood Requirement under the Indian Reorganization Act, 1934-1945” on SSRN. This paper was published in the Rutgers Race and the Law Review.
Here’s the abstract:
“Transnational Corporations and Indigenous Rights” Article
Sarah Joseph has posted “Transnational Corporations and Indigenous Rights” on SSRN. The paper was published by BALAYI: Culture, Law, and Colonialism.
From the abstract:
Lost “Indian Law” Article by Justice Scalia
Kate Fort dug this up — it’s a Michigan Law Review article from then-Professor Scalia on federal sovereign immunity in the context of public lands cases, pre-APA. Most of the cases he discusses involving Indian lands. His aversion to federal common law is apparent at the end of the article.
Forthcoming Federal Lawyer Article: “The Supreme Court and the Rule of Law: Indian Law Case Studies”
It looks like I’ll have a short paper in the Federal Lawyer in the March/April 2008 issue they publish in conjunction with the FBA Indian Law Conference. This one is called “The Supreme Court and the Rule of Law: Indian Law Case Studies” and is based in part on my forthcoming Hastings Law Journal article, “The Supreme Court’s Indian Problem” (well, it’s sort of like outtakes from that article).
Here’s the abstract:
Turtle Talk 
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