Scholarship

Maillard: “The Pocahontas Exception”

Matthew L.M. Fletcher

Kevin Noble Maillard (Syracuse Law) has posted an abstract to his wonderful paper, “The Pocahontas Exception: American Indians and Exceptionalism in Anti-miscegenation Law,” published in the Michigan Journal of Race & Law.

Kevin’s commentary in Indian Country Today, “Black and White,” can be accessed here. And his blog entry on blackprof.com is here.

From the abstract:

This article addresses the treatment of Native American ancestry as a curious exception to the threat of racial impurity. Virginia’s Racial Integrity Act of 1924 aimed to prevent all interracial marriages in the state between white and nonwhite persons. This anti-miscegenation statute sought to eradicate stealth intrusions of tainted blood into the white race, which proponents believed to be threatened by the quagmire of mongrelization. Exempted from this racial policing regime were those influential whites, the First Families of Virginia, who proudly claimed Native American ancestry from Pocahontas. For a statue with racial purity as its obsession and mantra, how does this exceptionalism hold? Why would Native American ancestry, as opposed to others, pass as acceptable nonwhite blood and good law? Even in our contemporary era, why do claims of the Cherokee Princess Grandmother not invoke multi-raciality? This disparity calls for a critical inquiry of the miscegenistic exceptionalism accorded to American Indians. With increasing numbers of Americans freely and lately claiming Native ancestry, we may ask why such affirmations do not meet the triumvirate of resistance, shame, and secrecy that regularly accompanies findings of partial African ancestry. This paper contends that anti-miscegenation laws relegate Indians to existence only in a distant past, creating a temporal dis-juncture to free Indians from a contemporary discourse of racial politics. I argue that such exemptions assess Indians as abstractions rather than practicalities. These practices bifurcate treatments of Indian blood, either essentializing a pre-modern and a historical culture, or trivializing this ancestry as inconsequential ethnicity.

American Indian Law & Literature — Speaker Bios & Abstracts

Matthew L.M. Fletcher

Please visit the Indigenous Law Conference website for links to the speakers’ bios, abstracts, and papers.

Formatting is a bit messy on this page — sorry.

MSU Student Paper: “Conducting Embryonic Stem Cell Research on Tribal Lands in Michigan” by Dr. Jake Allen

Matthew L.M. Fletcher

An MSU 3L, Jake Allen, a member of the Nez Perce Tribe and a surgeon, has recently published this paper in the Michigan State Journal of Medicine & Law. From the paper:

A unique relationship has developed between the Native peoples and the United States government, which in some ways resembles the relationship between the States and the federal government.Historically, however, the term “domestic dependent nation” has been applied to the sovereignty status of a tribe. Exclusive federal authority and tribal sovereignty trump many laws of the particular state in which the tribal lands are located. Gaming is a well known example, but to what extent are other state laws inapplicable to Indian land located within the boundaries of a particular state? Michigan has civil and criminal statutes prohibiting the use of live or dead embryos and human somatic cell nuclear transfer technology to produce a human embryo. In the opinion of Michigan State Representative Andy Meisner, these statutes severely limit stem cell research, negating the potential medical benefits that may be derived from such research, and are among the most restrictive in the nation. There is enough concern in promoting stem cell research in Michigan, that a newly formed group called Michigan Citizens for Stem Cell Research & Cures, has launched a stem cell public education project. On the other end of the spectrum, some states are actively promoting and funding stem cell research. Despite the laws in Michigan inhibiting stem cell research, could research that is prohibited by state law be conducted on Indian land should the Indian governing bodies so desire? The answer depends on many factors, but none more important than Indian tribal sovereignty.

For example, state laws restricting gaming are unenforceable on Indian land, at the discretion of the tribal government. Michigan has some of the most restrictive laws concerning stem cell research, when compared to most other states. The question of whether this type of research could be done on Indian lands is compelling because there are medical diseases which affect the native populations disproportionately compared to Caucasian populations, and for which stem cell research shows great promise to cure or improve the treatment. One of the most devastating diseases that has disproportionate affects on Native Americans is diabetes, a disease that has been hailed as having great potential to be cured with stem cell research. Additionally, the economic benefit from a large research center on Indian lands would greatly aid the Native population financially. Third, there is the consideration of keeping top Michigan scientists in the field from moving (along with their research dollars, prestige, and programs for budding Michigan scientists) to other states, such as California, that allow, encourage, and fund embryonic stem cell research.

This article provides a background for the legal considerations that play a part in debates concerning embryonic stem cell research and therapeutic cloning as it affects this research being performed on Indian lands. This article first examines the importance of stem cell research (Part I), Indian sovereignty (Part II), the Michigan statutes prohibiting such research (Part III), the status of international, federal, and other state laws (Part IV), the legal status of an embryo (Part V), and discusses the ethics of embryonic stem cell (Part VI). In Part VII, the issue of whether embryonic stem cell research and cloning can be done in Indian lands is discussed. This article argues that under most scenarios, embryonic stem cell research, and probably therapeutic cloning, could be performed on Indian reservations in Michigan despite the state statutes prohibiting such research.

Occasional Paper on Economic Development

Kate Fort

In conjunction with the upcoming 2nd Annual Great Lakes Economic Development Symposium, which Matthew posted about here, I’ve written an introduction to eight articles we’ve submitted for the conference materials. The piece, From Economic Development to Nation Building: Observations on Eight Articles about Tribes, Sovereignty and Economic Development, will also be available on the Center’s Occasional Papers website.



“The Supreme Court’s Indian Problem”

Matthew L.M. Fletcher

I just accepted an offer from the Hastings Law Journal to publish my new paper, “The Supreme Court’s Indian Problem.” Here’s the abstract:

This year, while accepting the “Rule of Law” award from the American Bar Association, Justice Breyer proclaimed that our constitutional system “floats on a sea of public acceptance.” At that time, Breyer’s statements were meant to highlight his expectation that the Court will decide its cases following the “rule of law.”

However, Breyer’s statement, while demonstrative of his faith in the rule of law, does not always ring true. In fact, as I argue, the Supreme Court often decides its cases by ignoring, rather than following, the rule of law. This problem is particularly acute in the body of federal Indian law – which has cast a disastrous shadow on tribal interests. Tribes have lost about three-quarters of their cases before the Supreme Court since 1988. Yet, curiously, prior to 1988, tribal interests won slightly more than half of their cases. What changed?

In this Article, I attempt to answer this question. I will show that the Court identifies important, unrelated constitutional concerns that arise often in Indian law cases – issues with which they and their clerks are familiar – and then decides those matters. Only afterward, and mostly as an afterthought, does the Court then turn to the federal Indian law questions. The Court’s federal Indian law analysis takes a secondary and often inferior role.

The result of this obfuscation is an unrelenting assault on tribal interests before the Court – and the rule of law more generally. In this Article, I offer the first in-depth empirical assessment of the Supreme Court’s recent Indian law decisions and argue in favor of a sweeping change in the means of analyzing Indian law. Instead of focusing on the Indian law questions, this Article shows how major Indian law cases were decided on other grounds to significant tribal disadvantage. Analyzing federal Indian law in this manner makes transparent the Court’s frightening disrespect for the rule of law.

Resources on Diversity on University Faculties

Matthew L.M. Fletcher

From Nick Reo–

Here are a couple of resources I thought you would appreciate that I became aware of at a recent conference.  The resources come from two keynote speakers, scholars we should all be aware of. 

Donna Nelson (http://cheminfo.ou.edu/~djn/djn.html) is an American Indian Chemistry Professor at the University of Oklahoma who has surveyed gender and racial composition of faculties at the top 50 U.S. research institutions. She presented the results of this study and has made the final report and their data available on her website.

National Analysis on Science & Engineering Faculties at Research Institutions- Final Report

http://cheminfo.ou.edu/~djn/diversity/briefings/Diversity%20Report%20Final.pdf

Summary Tables and Information from the study:

http://cheminfo.ou.edu/~djn/diversity/top50.html


Dorceta Taylor, Environmental Justice scholar from the University of Michigan, recently completed a related study that focuses on environmental and natural resource departments. Her results are reported in a recent issue of BioScience (February 2007- Vol. 57 No. 2). Also, see the Minority Environmental Leadership Development Institute website for some outstanding resources.

http://www.umich.edu/~meldi/

MSU American Indian Law & Lit Speaker Profile: Kirsten Matoy Carlson

Matthew L.M. Fletcher

In the coming weeks, we will be profiling the work of the speakers scheduled to present at the 4th Annual Indigenous Law Conference, “American Indian Law and Literature.”

The first profiled speaker, Kirsten Matoy Carlson, will be presenting a paper called, “Unresolved Disputes:Narratives in the Transformation and Processing of Persistent Claims.”

Kirsten’s abstract (from SSRN):

In 1980, the Supreme Court decided the largest land claim ever lodged against the United States government in favor of the Lakota people. The decision should have ended Lakota claims to the Black Hills, but it did not. This law review article seeks to understand why these claims persist despite their formal adjudication. It brings two traditions of legal scholarship together for the first time by considering the role of narrative in the sociolegal processes of dispute creation and re-creation. It argues that grievances persist through narratives, which facilitate the naming, blaming, and claiming stages of dispute creation. These narratives present a separate historical and legal perspective, and argue for the righting of historical injustices. As these narratives are repeated, the dispute is created and re-created intergenerationally, often evolving along the way. The article concludes that these narratives, which diverge from traditional legal narratives about the claims, explain the persistence of the unresolved dispute.

A Judicial Framework for Applying Supreme Court Jurisprudence to the State Income Taxation of Indian Traders by Scott Taylor (St. Thomas)

Matthew L.M. Fletcher

Scott Taylor: A Judicial Framework for Applying Supreme Court Jurisprudence to the State Income Taxation of Indian Trader

From the abstract:

State income taxation of Indian traders is a legal issue that the United States Supreme Court is likely to address within the next five years. This article provides a theoretical framework for resolution of the issue by considering the political framework of the United States Constitution and the historical role that federally recognized Indian tribes have played within the American legal system. As the cases work their way through the state judicial systems, this article will provide an important theoretical starting point for the lawyers and judges dealing with the question. And when the United States Supreme Court finally addresses the issue, the Court will be able to consider the usefulness of my framework.

Virtually everyone who sells goods and services to one of the more than 560 federally recognized Indian tribes (or to their on-reservation members) is an Indian trader. Most Indian traders are in states that have an income tax. Although the United States Supreme Court has held that these sales are exempt from states sales taxes, no federal case has yet answered the income tax question. Tribes are interested in the issue because the outcome will affect their ability to tax Indian traders. States are interested because it will affect their tax revenue. Indian traders are interested because it will affect the state income taxes they pay.

The theoretical framework that I propose builds on some of the Supreme Court jurisprudence on federal Indian law. My framework looks at the structure of Congress, the inclusion of states, and the exclusion of tribes. Given Congress’ power over Indian affairs, the Supreme Court should decide cases in favor of the tribal interest whenever Congress has spoken with less than clarity. If states do not like the judicial answer, they can go to Congress and seek a legislative remedy, as they did with the Indian Gaming Regulatory Act in the 1980s.

Congress has regulated Indian traders for over 200 years but has never stated whether states can tax them. Given the presence of this federal regulation, the United States Supreme Court in the 1960s decided that states could not impose their sales taxes on Indian traders. In a line of subsequent Supreme Court cases, the federal preemption logic has remained largely unchanged. This same logic, when viewed in light of Congress’ role in Indian affairs and the political exclusion of tribes from Congress, leads to the conclusion that Indian traders should be exempt from state income taxes.

Real Property and Personhood by Kristen Carpenter (Denver)

Matthew L.M. Fletcher

Real Property and Peoplehood by Kristen Carpenter (Denver)

From 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 unable to confront the uncomfortable truth that the very thing Indian peoples need is their land, the same land that the U.S. took from them. This is especially the case with regard to the sacred sites of Indian peoples, whose religions and cultures are inextricably linked to those sites. Federal law permits the United States to destroy sacred sites essential to Indian ceremonial practices. The Supreme Court has held that destruction of sacred sites does not impinge on individual religious belief and falls within the government’s powers as an owner of the public lands. 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 don’t 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 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.

Michigan Affirmative Action Symposium

Matthew L.M. Fletcher1 Comment

The Michigan Journal of Race & Law is hosting a symposium on affirmative action in Michigan after Prop. 2.

The symposium announcement is here.

For materials on Prop. 2 and its potential impact on American Indian students, please go here and here. For a pdf copy of the Michigan Civil Rights Commission report on Prop. 2, go here. Attachment no. 4 of the report concerns the impact of Prop. 2 on American Indian tuition waiver and is here.

From the symposium announcement….

From Proposition 209 to Proposal 2:
Examining the Effects of Anti-Affirmative Action Voter Initiatives

The diversity of perspectives that is cherished and celebrated by the Michigan Journal of Race & Law and the University of Michigan community is threatened with the passage of ballot initiatives like Michigan’s Proposal 2, which bans the use of race and gender in school admissions. These issues are both timely and critically important in a society that is becoming increasingly segregated by race and ethnicity, both residentially and socially. With the recent passing of Proposal 2 as well as the recent U.S. Supreme Court ruling regarding the use of race in public schools, we believe it is crucial to maintain an open and positive dialogue regarding race and education. To that end, our Symposium endeavors to address the variety of policy and legal questions arising out of the anti-affirmative action movement. Our Symposium will explore a broad range of issues including: the current effects of Proposition 209 in California and the potential effects of Proposal 2 on public university education and leadership within the state of Michigan, potential legal alternatives to affirmative action, and existing and emerging efforts to remedy K-12 educational disparities. Most notably, we present this symposium with the hope of preserving the University of Michigan’s longstanding commitment to diversity and as an answer to University of Michigan President Coleman’s request to “Show others what a U-M education looks like”.