Scholarship – Page 37

In 1981, the Supreme Court issued its decision in Montana v. United States, severely restricting the ability of Indian Tribes to assume civil regulatory and adjudicatory jurisdiction over non-tribal members for activities taking place on non-Indian lands within Indian reservations. The Court in Montana stated that “it could readily agree” with the Court of Appeals’ holding that the tribe could regulate the conduct of non-member on tribal lands. Yet, twenty years later, the Court issued its opinion in Nevada v. Hicks holding that in certain circumstances, the jurisdiction of Indian tribes could also be limited even if the activities of the non-members took place on Indian-owned lands.

It has been almost twenty years since Hicks and because of the cryptic and fractured nature of that decision, the federal circuits are divided and still trying to figure out under what circumstances tribal civil jurisdiction over non-members should be restricted when these activities take place on Indian-owned lands.

In this Article, I argue that among all the possible interpretations of Hicks, the one adopted by the Ninth Circuit makes the most sense. Under that interpretation, the so-called Montana framework used to divest tribes of jurisdiction is not applicable to cases where a tribe has retained the right to exclude. I argue that Hicks can be reasonably conceptualized as endorsing the 9th Circuit methodology. However, I also argue that Hicks should have been decided as a state jurisdiction cases and not a tribal divestiture of inherent sovereignty case. Re-imagining Hicks as a state jurisdiction case would not have changed the outcome but would have avoided the last twenty years of confusion surrounding how Hicks should be interpreted.

Highly recommended!

Stanford Law Review Online Student Essay Competition

September 22, 2020Matthew L.M. Fletcher

The Stanford Law Review Online is excited to announce our student essay competition!

Two winners will each receive a $500 prize and publication of their up to 5,000 word essay. We encourage submissions from all current students (including LLMs) and recent graduates of any ABA-accredited American law school. We especially encourage submissions from those who have not yet published academic works.

Prompt:

Our theme this year is the ulterior or unintended effects of legal decisions. The law and those who practice it wield considerable power over the lives of the average person. It would be comforting to believe that those who make and interpret laws act with deliberate and benevolent purpose. But that is not always the case. Occasionally, perhaps even often, legal decisions have unintended or ulterior consequences. Sometimes those consequences can be humorous, such as a resident flaunting a Homeowner’s Association rule about paint color by plastering gaudy wallpaper on the outside of her home. Other times, those consequences can be much more tragic, as with exclusionary zoning laws that ensure an absence of affordable housing in affluent areas, exacerbating existing inequities and contributing to evictions and homelessness.

The Stanford Law Review invites current law students and recent alumni of any law school to discuss a legal instrument–including a contract clause, a court judgment, or a federal regulation–that had an unexpected or ulterior effect. We welcome submissions that apply this prompt to policing, the topic of SLR’s forthcoming symposium in coordination with Stanford BLSA.

Rules:

Our competition is open to current law students, LLMs, and graduates of the classes of 2020, 2019, and 2018 from ABA-accredited American law schools. Submissions are limited to one essay of up to 5,000 words (inclusive of footnotes) per person.

Submissions must be unpublished and exclusively submitted to this competition during the competition window, lasting from date of submission to date of final publication decision.

We will begin accepting pieces immediately and will close the submission window on January 4, 2021 at 11:59 PM. We aim to notify all applicants of publication decisions by January 18, 2021.

Please submit your essay as a Word document attachment in an email to Carly Grimes at cgrimes1@stanford.edu. This word document must be blinded. Your name must not appear in the document and you must follow instructions for removing identifying metadata available here: https://tinyurl.com/blindingessay

Direct any questions about the competition to Carly Grimes, cgrimes1@stanford.edu

Katherine Florey on Regulatory Sovereignty in the Pandemic

September 19, 2020September 18, 2020Matthew L.M. Fletcher

Katherine Florey has posted “Toward Tribal Regulatory Sovereignty in the Wake of the COVID-19 Pandemic,” forthcoming in the Arizona Law Review. Here is the abstract:

The media has often highlighted the devastating toll COVID-19 has taken in many parts of Indian country – and that, to be sure, is part of the story. But there are other aspects of the picture as well. On the one hand, tribes have taken resourceful and creative measures to combat COVID-19. On the other, a troublesome doctrinal landscape has complicated their efforts to do so. The judicially crafted Montana framework severely restricts tribal civil regulatory power over nonmembers – a particular problem during the COVID-19 pandemic, when nonmembers have defied tribal curfews, camped in prohibited areas, and opened businesses on reservations despite closure orders. While Montana nominally contains a “health and welfare” exception allowing tribes to exercise power over nonmembers in emergencies, its contours are too ambiguous and fact-specific to allow tribes to act with the certainty and speed they require. The pandemic thus provides a vivid illustration of the way in which Montana hinders effective tribal governance. Further, the pandemic has occurred at a moment when the Court may be more receptive than it has been in the past to arguments favoring tribal sovereignty – and at a time when many of the concerns about tribal regulation that motivated the Court four decades ago in Montana seem increasingly distant both from current doctrine and contemporary tribal realities. As a result, it is time, at a minimum, for the Court to expand Montana’s “health and welfare” exception to resemble something closer to the powers states possess to safeguard public health.

Wisconsin Journal of Law, Gender & Society Call for Papers: “Confronting Violence against Indigenous Women, Children, and Peoples”

September 18, 2020Matthew L.M. Fletcher

Here:

WJLGS_Call_for_Papers_2021_FINAL

Proposals should be submitted to Lorenzo Gudino at gudino@wisc.edu and Jennifer Acevedo at acevedo3@wisc.edu no later than October 23, 2020. Submissions may be published and unpublished works. The Wisconsin Journal of Law, Gender & Society will likely publish accepted unpublished submissions. Authors of accepted submissions must virtually attend and present their work at the symposium on February 6, 2021. The organizers will communicate their decisions no later than November 15, 2020.

“The Ghost Road” Promotional Materials

September 16, 2020September 16, 2020Matthew L.M. Fletcher

My new book, “The Ghost Road: Anishinaabe Responses to Indian-Hating,” will be published in October 2020 by Fulcrum Publishing. You can pre-order. Here is a Media Kit PDF.

Warigia Bowman on COVID, Coal, and the Navajo Nation

September 13, 2020September 11, 2020Matthew L.M. Fletcher

Warigia M. Bowman has posted “Dikos Nitsaa’igii-19 (The Big Cough): Coal, COVID, and the Navajo Nation” on SSRN.

Here is the abstract:

This essay makes the following arguments. First, the US federal government knows how to electrify remote rural areas, and has in fact electrified rural areas as remote and inaccessible as the Appalachian Mountains. Yet, the US government has failed to electrify Navajo. Second, Navajo Nation is surrounded by power plants which send electricity to Phoenix, Los Angeles, and parts distant, yet transmission lines and infrastructure have not been properly extended from those power plants to inside of Navajo Nation. Third, the health risks of residential coal burning are well known, and given the health risks of COVID-19 and the fact that underlying respiratory conditions make the Navajo quite susceptible to this disease, the need to address this infrastructure gap is urgent.

Ann Tweedy on the Impact of the McGirt Decision

September 11, 2020Matthew L.M. Fletcher

Ann Tweedy has posted “Has Federal Indian Law Finally Arrived at ‘The Far End of the Trail of Tears’?”, forthcoming in the Georgia State University Law Review, on SSRN.

Here is the abstract:

This essay examines the United States Supreme Court’s July 9, 2020 decision in McGirt v. Oklahoma, which held that the historic boundaries of the Creek reservation remain intact, and argues that the decision likely signals a sea change in the course of federal Indian law of the magnitude of Obergefell v. Hodges in the LGBT rights arena. The essay shows how the opinion lays a very strong foundation for a much-needed return to traditional federal Indian law principles, respectful treatment of tribal governments as a third sovereign in the American system, and an understanding of fairness from the perspective of tribes and Native individuals. The essay concludes with the hope that Justice Gorsuch’s majority opinion will foster predictability in the wildly unstable area of disestablishment and diminishment jurisprudence, as well as in other facets of federal Indian law.

Stephanie Barclay & Michalyn Steele on Indian Sacred Sites

September 9, 2020September 10, 2020Matthew L.M. Fletcher

Stephanie H. Barclay & Michalyn Steele have posted “Rethinking Protections for Indigenous Sacred Sites,” forthcoming in the Harvard Law Review.

Here is the abstract:

Meaningful access to sacred sites is among the most important principles to the religious exercise of indigenous peoples, yet tribes have been repeatedly thwarted by the federal government in their efforts to vindicate this practice of their religion. The colonial, state, and federal governments of this Nation have been desecrating and destroying Native American sacred sites since before the Republic was formed. Unfortunately, the callous destruction of indigenous sacred sites is not just a troubling relic of the past. Rather, the threat to sacred sites and cultural resources continues today in the form of spoliation from development, as well as in the significant barriers to meaningful access indigenous peoples face.

Scholars concerned about government failure to protect indigenous sacred sites have generally agreed that the problem stems from the unique nature of indigenous spiritual traditions as being too distinct from non-indigenous religious traditions familiar to courts and legislators and therefore eluding protection afforded to other traditions. By contrast, this Article approaches the problem from an entirely different angle: we focus instead on the similarities between government coercion with respect to indigenous religious exercise and other non-indigenous religious practices. We illustrate how the debate about sacred sites unwittingly partakes of longstanding philosophical debates about the nature of coercion itself—a phenomenon that has previously gone unnoticed by scholars. This Article argues that whether or not one formally labels the government’s actions as “coercive,” the important question is whether the government is bringing to bear its sovereign power in a way that inhibits the important ideal of religious voluntarism—the ability of individuals to voluntarily practice their religious exercise consistent with their own free self-development. Indeed, this is precisely the sort of question courts ask when evaluating government burdens on non-indigenous religious exercise. The failure to ask this same question about voluntarism for indigenous religious practices has created a double standard, wherein the law recognizes a much more expansive notion of coercion for contexts impacting non-indigenous religious practices, and a much narrower conception of coercion, in the tradition of Robert Nozick, when it comes to indigenous sacred sites.

This egregious double standard in the law ought to be revisited. Doing so would have two important implications. First, when coercion is viewed clearly, tribal members and indigenous practitioners should be able to prove a prima facie case under statutes like the Religious Freedom Restoration Act (RFRA) much more easily. Second, this Article makes the novel claim that clearer understanding of the coercive control government exercises over sacred sites should animate a strong obligation under the government’s trust responsibility and plenary power doctrine to provide more—rather than less—robust protection of indigenous sacred sites.

Highly recommended!!!

Elizabeth Reese on the Exclusion of Tribal Law from “American Law”

September 9, 2020Matthew L.M. Fletcher

Elizabeth Reese has posted “The Other American Law,” forthcoming from the Stanford Law Review, on SSRN.

Here is the abstract:

American legal scholarship focuses, almost exclusively, on state and federal law. However, there are an additional 574 federally recognized tribal governments within the United States whose laws are largely ignored. This article brings to the fore the exclusion of tribal governments and their laws from our mainstream conception of “American law” and identifies this exclusion as both an inconsistent omission and a missed opportunity. Tribal law should be no less “American law” than federal and state law. Tribal law is also made, enforced, and followed by American citizens, and tribal governments have a distinct place as a sub-sovereign within the American system of overlapping sovereigns. Nor is it clearly less important, as tribes govern millions of Americans and as much land as California. And yet, tribal law is excluded from our shared conception of “American law”—and thereby our research projects, classrooms, and even conversations. This exclusion perpetuates the “othering” of tribal law and governments and harmful present day misunderstandings or invisibilities for both Indian people and their governments. Tribal governments were previously delegitimized and described as “lawless” in order to legitimize legal theories of conquest. But tribal law is real, and it is time to end its marginalization. Moreover, tribal law is vast, varied, and can be innovative. As demonstrated by the three examples in this piece, tribal governments struggle with the same kinds of problems that the other American sovereigns face, and their similarities, differences, successes, failures, innovations, etc. can inform other American sovereign’s work or public law questions more broadly. Omitting tribal law from American legal scholarship is not only a troubling inconsistency, it is a missed opportunity to tap a potentially valuable resource—a disservice to the search for good government ideas. Tribal law belongs in the mainstream study of American law and legal systems. This article places it there.

Highly recommended!