Scholarship

On Becoming an American Indian Law Professor: 2021 Update

Matthew L.M. Fletcher

Here.

Abstract:

There are less than three dozen American Indians who are enrolled tribal members who are tenure system law professors in American law schools. We study this group, as well as a few known tribal members who have either retired or left the academy for loftier pursuits, for purposes of identifying the profiles of tribally enrolled American Indians on the tenure track in American law schools. The object of this short paper is to advise American Indian law students and others on how to become an American Indian law professor. This paper is an update from a 2012 paper: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2058557.

Prepared in anticipation of the “Transforming the Legal Academy” conference.

Trevor Reed on Whether Copyright Should Apply on Tribal Lands

Matthew L.M. Fletcher

Trevor Reed has posted “Creative Sovereignties: Should Copyright Apply on Tribal Lands?,” forthcoming in the Journal of the Copyright Society, on SSRN.

Here is the abstract:

The federal Copyright Act grants authors the exclusive right to use their original creative expressions in certain ways. At the same time, the Act pre-empts most equivalent rights to creative expressions established by States. However, the Copyright Act is silent as to its applicability on the lands of Native American Tribes and its preemptive effect on rights sovereign Tribal governments accord to creativity. With Tribes and Tribal members increasingly engaged in the global creative economy and in litigation to defend their intellectual properties, the status of the Copyright Act on Tribal lands has become a critical issue that Congress or the courts must now address.

The stakes of applying the Copyright Act on Tribal lands may be quite high for Tribes. Drawing on doctrinal research coupled with community-partnered ethnographic research conducted with the Hopi Tribe, I explain how federal copyright law impacts contemporary tribal sovereignty. Copyright clearly supports certain forms of Tribal creativity intended for off-reservation markets. But for locally circulating creativity — including forms of cultural or ceremonial creativity that help maintain Tribal identity, social relations, and traditional sources of authority — applying Copyright may very well disrupt the exercise of Tribal sovereignty and cause substantial harm to Tribal creative economies.

Based on this research, I argue that the Copyright Act should apply on Tribal lands, but only to the extent permitted by each Tribe. Where Tribal intellectual property laws, protocols, or customary laws occupy the same field as the Copyright Act, Tribal entitlements and remedies, not federal ones, should govern creativity occurring on Tribal lands, with federal copyright law providing enforcement of Tribal intellectual property rights beyond a Tribe’s borders. Otherwise, the unilateral imposition of the Copyright Act on tribal creativity, to the exclusion of Tribal laws, impermissibly invades Tribal sovereignty as articulated in both current federal policy and the international norms enshrined in the United Nations Declaration on the Rights of Indigenous Peoples.

New Student Scholarship on Applying the Culverts Decision to Anishinaabewaki

Matthew L.M. Fletcher

Nathan Frischkorn has posted “Treaty Rights and Water Habitat: Applying the United States v. Washington Culverts Decision to Anishinaabe Akiing,” forthcoming in the Arizona Journal of Environmental Law & Policy, on SSRN.

Here is the abstract:

In 2017, the Ninth Circuit Court of Appeals held that culverts installed by the state of Washington which reduce the habitat of treaty-protected salmon violate the treaty rights of Tribes in western Washington. That decision—part of the long-running United States v. Washington litigation—has since become known as the “Culverts Case.” Broadly, that decision essentially holds that habitat protection is a component of treaty-protected rights to hunt, fish, and gather. This Article analyzes what habitat protection as a treaty right would mean for the water-based, treaty-protected resources—such as fish and manoomin (wild rice)—of the Anishinaabe Tribes in Minnesota, Wisconsin, and Michigan. This Article describes relevant treaties to determine what water-based resources those Tribes have treaty rights to, and analyzes relevant precedent that defines or limits the exercise or scope of those rights in state and federal courts. Through interviews with individuals who work with Tribes on issues pertaining to usufructuary rights, this Article identifies specific environmental threats to water-based treaty resources throughout the Great Lakes region. By analogizing those identified threats to the culverts at issue in United States v. Washington, this Article examines what habitat protection as a treaty right would mean in Anishinaabe Akiing.

Dylan Hedden & Stacy Leeds on McGirt’s Impact on the Indian Law Canon

Matthew L.M. Fletcher

Dylan R. Hedden-Nicely and Stacy L. Leeds have published “A Familiar Crossroads: McGirt v. Oklahoma and the Future of Federal Indian Law Canon” in the New Mexico Law Review.

Highly recommended!

Tulsa Law Review Symposium on McGirt

Matthew L.M. Fletcher

Here:

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Introduction
Mary Kathryn Nagle

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The Past May Be Prologue, But It Does Not Dictate Our Future: This Is the Muscogee (Creek) Nation’s Table
Jonodev Chaudhuri

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Reflections on McGirt v. Oklahoma: A Case Team Perspective
Riyaz Kanji, David Giampetroni, and Philip Tinker

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The Indian Treaty Canon and McGirt v. Oklahoma: Righting the Ship
Lauren King

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A Wealth of Sovereign Choices: Tax Implications of McGirt v. Oklahoma and the Promise of Tribal Economic Development
Stacy Leeds and Lonnie Beard

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The Sky Will Not Fall in Oklahoma
Clint Summers

Casenote/Comment

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A Coherent Ethic of Lawyering in Post-McGirt Oklahoma
Julie Combs

Other

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Reclaiming Our Reservation: Mvskoke Tvstvnvke Hoktvke Tuccenet (Etem) Opunayakes
Sarah Deer

William Starna on the Tax Implications of the 1794 Treaty of Canadaigua

Matthew L.M. Fletcher

William A. Starna has published “The 1794 Treaty of Canandaigua and The Taxation of Native Americans” in Tax Notes Federal:

Tax Notes Federal 6-2021

New Scholarship by Mary Bilder on Native Nations’ Diplomacy and the Framing of the Constitution

Matthew L.M. Fletcher

Mary Sarah Bilder has posted “Without Doors: Native Nations and the Convention,” just published in the Fordham Law Review.

Here is the abstract:

The Constitution’s apparent textual near silence with respect to Native Nations is misleading. As this Article reveals, four representatives of Native Nations visited Philadelphia in the summer of 1787. Their visit ensured that the Constitution secured the general government’s treaty authority with Native Nations and decisively barred state claims of authority. But, the visits also threatened to disrupt Congress’s passage of the Northwest Ordinance and the vision of nationally sanctioned white settlement. In the process of successfully preventing the representatives from reaching Congress, Secretary at War Henry Knox developed the central tenets of what would become the George Washington administration’s early Indian policy: an acceptance of Native Nation sovereignty, disapproval of unauthorized white encroachment, and an attempt to discourage Native Nations from sending additional representatives. In addition to emphasizing the strong national federal government role and Native Nation sovereignty, this history provides evidence that the Framers’ generation without doors—outside the Convention—critically affected the creation of the Constitution as an instrument and a system of government. Recovering the visits of the deputies to Philadelphia in 1787 and the promises they received, including Washington’s handshake, suggests that the United States today should reaffirm the right and the importance of Native Nations sending deputies to Congress.

Washington Law Review Student Comments on Indigenous Issues

Matthew L.M. Fletcher

Here:

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Kū Kia‘I Mauna: Protecting Indigenous Religious Rights
Joshua Rosenberg

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Let Indians Decide: How Restricting Border Passage by Blood Quantum Infringes on Tribal Sovereignty
Rebekah Ross

American Indian Law Review Vol. 45, Issue 1

Matthew L.M. Fletcher

Here:

Vol. 45, No. 1 (2020-2021)

Front Pages   PDF

Article

ICWA’s Irony – Marcia Zug   PDF

Comments

The Secretary of the Interior Has the Authority to Take Land into Trust for Federally Recognized Alaska Tribes – Meghan O’Connor   PDF

“The Desert Is Our Home” – Kayla Molina   PDF

Notes

Coeur D’alene Tribe v. Hawks: Why Federal Courts Have the Power to Recognize and Enforce Tribal Court Judgments Against Nonmembers “Because of the Federal Government’s Unique Relationship with Indian Tribes” – Heath Albert   PDF

The Disproportionate Effect on Native American Women of Extending the Federal Involuntary Manslaughter Act to Include a Woman’s Conduct Against Her Child in Utero: United States v. Flute – Andie B. Netherland   PDF

Special Feature

Mirrored Harms: Unintended Consequences in the Grant of Tribal Court Jurisdiction over Non-Indian Abusers – Jonathan Riedel   PDF

Kristen Carpenter’s Book Review of McNally’s “Defending the Sacred” in the Harvard Law Review

Matthew L.M. Fletcher

Kristen A. Carpenter has published “Living The Sacred: Indigenous Peoples and Religious Freedom” in the Harvard Law Review, reviewing Michael McNally’s “Defend the Sacred: Native American Religious Freedom Beyond the First Amendment.”