Reviews of Nick Estes’ “Our History Is the Future: Standing Rock Versus the Dakota Access Pipeline, and the Long Tradition of Indigenous Resistance”

UCLA Journal of International Law and Foreign Affairs, Vol. 15, No. 239, 2012, St. Thomas University School of Law (Florida) Research Paper No. 2018-01

Number of pages: 50 Posted: 31 Jan 2019

Accepted Paper Series

Siegfried Wiessner

St. Thomas University School of Law

Virginia’s First Slaves: American Indians

Number of pages: 24 Posted: 14 Jan 2019

Working Paper Series

Robert J. Miller

Arizona State University (ASU) – Sandra Day O’Connor College of Law

Fletcher: “Law, Politics, and the Constitution”

February 14, 2019February 14, 2019Matthew L.M. Fletcher

Here, on SSRN.

The abstract:

The question whether Congress may create legal classifications based on Indian status under the Fifth Amendment’s Due Process Clause is now reaching a critical point. Critics claim the Constitution allows no room to create race or ancestry based legal classifications. The critics are wrong.

When it comes to Indian affairs, the Constitution is not colorblind. Textually, I argue, the Indian Commerce Clause and Indians Not Taxed Clause serve as express authorization for Congress to create legal classifications based on Indian race and ancestry, so long as those classifications are not arbitrary, as the Supreme Court stated a century ago in United States v. Sandoval and more recently in Morton v. Mancari.

Should the Supreme Court reconsider those holdings, I suggest there are significant structural reasons why the judiciary should refrain from applying strict scrutiny review of Congressional legal classifications. The reasons are rooted in the political question doctrine and the institutional incapacity of the judiciary. Who is an Indian is a deeply fraught question to which judges have no special institutional capacity to assess.

Neoshia Roemer on the Conflict between ICWA and the Interstate Compact on the Placement of Children

February 6, 2019Matthew L.M. Fletcher

MSU ILPC’s own Neoshia R. Roemer has published Finding Harmony or Swimming in the Void: The Unavoidable Conflict Between the Interstate Compact on the Placement of Children and the Indian Child Welfare Act. [PDF]

Here is the abstract:

The Indian Child Welfare Act is a federal statute that applies to Indian children who are at the center of child welfare proceedings. While the Indian Child Welfare Act provides numerous protections to Indian children, parents, and tribes, many of these cases play out in state courts which are also required to apply their own requisite, relevant state laws. However, sometimes friction between the Indian Child Welfare Act and state-law provisions arise where state law provisions may seem in accord with the statute but actually contradict it, such as in the case of the Interstate Compact on the Placement of Children. This Article surveys the Interstate Compact on the Placement of Children’s provisions and discusses the friction that exists between it and the Indian Child Welfare Act. Ultimately, this Article argues that because the Interstate Compact on the Placement of Children is a state administrative procedure that may alter that status of child welfare proceedings, the Indian Child Welfare Act should preempt the Compact where it is applicable.

New Issue of International Human Rights journal

January 28, 2019Matthew L.M. Fletcher

Here:

iur_254

Features articles about Canadian Indian labor issues and a paper by Kaighn Smith and Joel Williams: “Native Americans, Tribal Sovereignty and Unions.”

Kevin Washburn on Federal “Deemed Approved” Gaming Compacts

January 18, 2019Matthew L.M. Fletcher

Dean Kevin K. Washburn has posted “Agency Pragmatism in Addressing Law’s Failure: The Curious Case of Federal ‘Deemed Approvals’ of Tribal-State Gaming Compacts,” forthcoming in the Michigan Journal of Law Reform.

Here is the abstract:

In the Indian Gaming Regulatory Act of 1988 (IGRA), Congress imposed a decision-forcing mechanism on the Secretary of the Interior related to tribal-state compacts for Indian gaming. Congress authorized the Secretary to review such compacts and approve or disapprove each compact within forty-five days of submission. Under an unusual provision of law, however, if the Secretary fails to act within forty-five days, the compact is “deemed approved” by operation of law but only to the extent that it is lawful. In a curious development, this regime has been used in a different manner than Congress intended. Since the United States Supreme Court held part of IGRA unconstitutional in 1996, the Secretary declined to issue an affirmative approval or disapproval on more than seventy-five occasions—thus, allowing a compact to become approved by operation of law—but has simultaneously issued a letter setting forth legal objections to aspects of the compact. The Secretary’s creative response to a broken regulatory scheme appears to be unique, and it raises interesting questions about how the executive branch should behave in the face of legal uncertainty. It raises questions of administrative law, such as whether the Secretary’s non-action is reviewable as agency action under the Administrative Procedure Act (APA), whether the Secretary’s letter is entitled to deference, and if so, what level of deference. It also raises important questions about whether such action constitutes good policy. This Article examines some of those questions.