Scholarship – Page 25

Kristen Carpenter on Human Rights and Cultural Property

February 15, 2023Matthew L.M. Fletcher

Kristen A. Carpenter has posted “A Human Rights Approach to Cultural Property: Repatriating the Yaqui Maaso Kova,” forthcoming in the Cardozo Arts & Entertainment Law Journal, on SSRN. Here is the abstract:

Claims for repatriation of cultural property are emerging across the international community, with increasing attention to the inequities of acquisitions made during colonial periods. Yet the State-centric nature of legal instruments, such as the Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property of 1970, remains a stumbling block to advancing meaningful remedies for past harms, especially in the Indigenous Peoples’ context. States often pursue repatriation to advance national identity or replenish museum collections, but for Indigenous Peoples, repatriation often has to do with restoring dignity to ancestors through reburial, returning ceremonial objects to religious use, and healing the community from cultural assimilation and oppression. Against this backdrop, the essay reviews the recent case of the Yaqui People, an Indigenous nation spanning the U.S.-Mexico border, who negotiated a pathbreaking agreement to repatriate a sacred deer head, the Maaso Kova, from the national museums of Sweden. Working with the United Nations Expert Mechanism on the Rights of Indigenous Peoples, the parties expressly invoked the United Nations Declaration on the Rights of Indigenous Peoples, along with Yaqui and Swedish law, as bases for repatriation. The Yaqui-Sweden matter advances a human rights approach to repatriation that begins to transcend the hegemony of States in cultural property claims, while recognizing Indigenous Peoples’ equality and self-determination, along with religious and cultural freedoms.

Greg Ablavsky and Tanner Allread on How Indigenous Peoples Debated the U.S. Constitution

February 13, 2023Matthew L.M. Fletcher

Gregory Ablavsky and W. Tanner Allread have posted “We the (Native) People?: How Indigenous Peoples Debated the U.S. Constitution,” forthcoming in the Columbia Law Review, on SSRN.

Here is the abstract:

The Constitution was written in the name of the “People of the United States.” And yet, many of the nation’s actual people were excluded from the document’s drafting and ratification based on race, gender, and class. But these groups were far from silent. A more inclusive constitutional history might capture marginalized communities’ roles as actors, not just subjects, in constitutional debates.

This Article uses the tools of legal and Native history to examine how one such group, Indigenous peoples, argued about and with the U.S. Constitution. It analogizes Native engagement to some of the foundational frames of the “Founding” to underscore its significance for current constitutional discourse. Like their Anglo-American neighbors, Native peoples, too, had a prerevolutionary constitutional order—what we here dub the “diplomatic constitution”—that experienced a crisis during and after the Revolution. After the Constitution’s drafting, Native peoples engaged in their own version of the ratification debates. And then, in the early republic, Native peoples both invoked and critiqued the document as they faced Removal.

This Article’s most important contribution is proof of concept, illustrating what a more inclusive constitutional history might look like. Still, some of the payoffs are doctrinal: broadening the “public” in original public meaning, for instance. But the more significant stakes are theoretical. As this Article contends, by recognizing Indigenous law and constitutional interpretations as part of “our law”—in other words, the pre- and post-constitutional legal heritage of the United States—Native peoples can claim their role as co-creators of constitutional law.

Student Note on Native Voting Rights

February 9, 2023Matthew L.M. Fletcher

Noelle N. Wyman has published “Native Voting Power: Enhancing Tribal Sovereignty in Federal Elections” (PDF) in the Yale Law Journal. Here is the abstract:

Members of tribal nations are disproportionately burdened by barriers to voting, from strict voter identification and registration requirements to inadequate language assistance and inaccessible polling locations. Restrictive voting laws are on the rise, while the avenues for challenging them under the prevailing model of voting rights are narrowing. This Note advocates for a different approach to conceptualizing and combatting Native American voter suppression.

First, it advances a new jurisprudential theory centered on tribal sovereignty: suppressing the Native vote not only denies rights to individual citizens but also denies sovereign power to tribes. Historically, states required Native American people to renounce tribal membership, culture, and lands to vote. Today, states and localities continue to denigrate tribal sovereignty in the administration of elections, such as by rejecting tribal-issued IDs and interfering with tribes’ organization of their own political communities. Apart from securing the fundamental rights of individual Native citizens, Congress has a substantive duty to secure tribal sovereignty in federal election administration that is rooted in its trust obligation to tribes.

Second, this Note proposes a new legal framework for enhancing Native voting power: Congress should require states and local election officials to negotiate with federally recognized tribes toward the formation of tribal-state compacts governing federal election administration in Indian Country. This framework would relieve tribes of the burdens that they currently carry to initiate collaboration with local election officials, fill gaps in voter assistance, and challenge unlawful voting restrictions in court. Meanwhile, it would involve tribes in the process of lawmaking and regulation, enabling them to exert a measure of sovereign power over federal elections in Indian Country.

Fletcher on Due Process and Equal Protection in Michigan Anishinaabe Courts

January 31, 2023Matthew L.M. Fletcher

The Michigan State Law Review Forum has published my short article, “Due Process and Equal Protection in Michigan Anishinaabe Courts.” Check it out.

Angela Riley & Sarah Glenn Thompson on Dual Sovereignty and Indian Country Crimes

January 23, 2023January 23, 2023Matthew L.M. Fletcher

Angela Riley & Sarah Glenn Thompson have posted “Mapping Dual Sovereignty and Double Jeopardy in Indian Country Crimes,” recently published in the Columbia Law Review, on SSRN.

Here is the abstract:

The Double Jeopardy Clause guarantees no individual will be put in jeopardy twice for the same offense. But, pursuant to the dualsovereignty doctrine, multiple prosecutions for offenses stemming from the same conduct do not violate the Clause if the offenses charged arise under the laws of separate sovereigns, even if the laws are otherwise identical. The doctrine applies to tribal prosecutions, but its impact in Indian country is rarely studied. Such an inquiry is overdue, particularly as the scope of crimes potentially subject to dual tribal and federal prosecutions has broadened in recent years. This Article is the first to undertake a preliminary examination of the dual-sovereignty doctrine in the tribal–federal context and describe the complex interplay between the doctrine and the rest of the criminal law fabric in Indian country. Perhaps most significantly, it includes an original typology highlighting when a defendant may be subject to the doctrine, which sovereigns have the authority to prosecute, pursuant to what source of power each sovereign operates, and when and how the sequence of prosecutions matters, if at all. This leads to the Article’s central thesis: Indian tribes are separate sovereigns with inherent sovereignty, and, under current conditions, the dual-sovereignty doctrine plays a central role in ensuring safety in Indian country. The doctrine’s application in Indian country, however, creates unique complexities that may threaten tribal sovereignty and raise issues of unfairness for defendants. This Article offers numerous reforms—some highly ambitious and others more modest—to address these issues.

*two police officers staring at each other in the style of miro*

Jack Fiander on the Constitutional Foundation of Federal-Tribal Relations

January 17, 2023Matthew L.M. Fletcher

Jack Fiander has posted “The Melding of International Law and the Customary Law of Tribal Nations; The Constitutional Origin of Federal-Tribal Relations” on SSRN.

Here is the abstract:

To seek understanding of the basis for the relationship of the government of the United States with tribal nations it is necessary to examine not only the intent of the “Founding Fathers” but also that of the tribal nations with whom those framers of the United States Constitution dealt at the time of America’s founding. To do otherwise is ethnocentric, at best, and omits half the equation. Establishing a Constitutional relationship requires the perspective of both sides, not only that of those acting on behalf of the fledgling United States. At the time this nation’s founding, tribal nations were mighty in number and therefor treated by Colonists as sovereign nations to be dealt with in conformity with respect for their respective forms of customary and international law. Recognizing tribal sovereignty required adherence to what might be described as tribal laws of nations to manage their own internal affairs, as is evident in the framers’ deferential dealings with Tribal Nations in the founding era and thereafter. Because Colonists understood the need to gain alliances with the powerful tribal nations to secure protection against foreign powers, the Framers appropriated concepts from Tribal nations, which paralleled those in the international Law of Nations, to which much Constitutional authority for the relationship of the United States with tribal nations is traceable.

Dyani White Hawk, Detroit Institute of Arts

American Indian Law Top Downloads for 2022 on SSRN

January 4, 2023January 4, 2023Matthew L.M. Fletcher

There was a lot of great American Indian law scholarship this past year. Here is a list of the papers focusing on American Indians and Indian tribes that were law-review length. Some really interesting things were excluded, like Greg Ablavsky’s posts defending his scholarship that had TONS of downloads but were not really law review articles, and lots of international material, etc. Here you go:

Tribal Nations and Abortion Access: A Path Forward [371]

Harvard Journal of Law and Gender, Forthcoming

Number of pages: 79 Posted: 18 Aug 2022

Working Paper Series

Lauren van Schilfgaarde, Aila Hoss, Ann E. Tweedy, Sarah Deer and Stacy Leeds

UCLA School of Law, Indiana University McKinney School of Law, University of South Dakota School of Law, University of Kansas and Arizona State University (ASU) – Sandra Day O’Connor College of Law

Restoring Indian Reservation Status: An Empirical Analysis [278]

Yale Journal on Regulation, Vol. 41, No. 1, Forthcoming, Law & Economics Center at George Mason University Scalia Law School Research Paper Series No. 22-047

Number of pages: 68 Posted: 13 Apr 2022 Last Revised: 01 Dec 2022

Working Paper Series

Michael Velchik and Jeffery Zhang

Harvard University and University of Michigan Law School

Five Linguistic Methods for Revitalizing Indigenous Laws [257]

McGill Law Journal, Forthcoming

Number of pages: 33 Posted: 17 May 2022 Last Revised: 23 May 2022

Accepted Paper Series

Naiomi Metallic

Dalhousie University – Schulich School of Law

The Indian Child Welfare Act as Reproductive Justice [202]

Boston University Law Review, Vol. 103, Forthcoming 2023

Number of pages: 62 Posted: 01 Sep 2022

Working Paper Series

Neoshia Roemer

University of Idaho – College of Law

The Ascension of Indigenous Cultural Property Law [184]

Michigan Law Review, Vol. 121, No. 1, 2022

Number of pages: 70 Posted: 29 Nov 2022

Accepted Paper Series

Angela Riley

University of California, Los Angeles (UCLA)

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Paul Mooney on Cannabis in Indian Country

December 23, 2022Matthew L.M. Fletcher

Paul Mooney has published “Making Marijuana Less Illegal: Challenges for Native American Tribes Entering the Marijuana Market” in the South Dakota Law Review.

Mooney Digital Copy.pdf Download