Scholarship

Student Note on ICWA as a Political Classification Statute

Matthew L.M. Fletcher

Allison Krause Elder has published “Indian” as a Political Classification: Reading the Tribe Back into the Indian Child Welfare Act in the Northwestern Journal of Law & Social Policy. Here is the abstract:

In the summer of 2018, the Ninth Circuit will consider an appeal from the dismissal of a constitutional challenge to the Indian Child Welfare Act (ICWA). Brought by a conservative think-tank, this case frames the ICWA as race-based legislation, violating equal protection by depriving Indian children of the same procedures as non-Indian children in child custody cases. In reality, the ICWA seeks to protect the interests of tribes, Indian families, and Indian children by establishing special procedures and obligations in Indian child custody cases. On its face, the ICWA is concerned not with the race of children, but with the special status of tribes and their political membership. As discussed in this Paper, a racial understanding of the ICWA is inconsistent with both the statute itself and the historically mixed political-racial status of tribes in the United States. While the Supreme Court created an opening for a race-based view of the ICWA in Baby Veronica, prior precedents embraced a political understanding of “Indian” where Congress intended to support tribal sovereignty. This Paper argues that any fair reading of the ICWA must treat “Indian” as a political rather than racial classification, and that the ICWA cannot be subject to strict scrutiny under equal protection. To do otherwise is to read the tribe out of the Act, which is not just inconsistent with the statute, but dismissive of the unique history of tribes in our nation.

Ezra Rosser on Medicaid Waivers and Political Preferences for Indians

Matthew L.M. Fletcher

Ezra Rosser has published “Medicaid Waivers and Political Preferences for Indians” in the Harvard Law Review Blog.

Kirsten Carlson on the Rise of Lobbying by Tribal Interests from 1978 to 2012

Matthew L.M. Fletcher

Kirsten Matoy Carlson has posted “Lobbying Against the Odds,” forthcoming in the Harvard Journal on Legislation. Here is the abstract:

Conventional narratives maintain that groups that lack political power litigate because they cannot attain their goals politically. Yet lobbying by American Indians has increased over 600 percent since the late 1970s. And they are not alone. Other politically marginalized groups have also intensified their lobbying efforts over the past five decades. This raises an important question that scholars have yet to adequately answer: Why do some groups use legislative strategies to achieve their goals? This Article challenges the prevailing wisdom and demonstrates that groups sometimes lobby even when the odds are stacked against them. It considers the existing sociolegal framework for understanding why groups litigate, and suggests modifications based on insights from interest group studies, to provide a more complete explanation of when and why groups engage in various advocacy strategies. This modified sociolegal approach produces significant insights into how legal and political actors influence and are influenced by the institutions they turn to, but also enables us to see similar—and divergent—patterns across contexts. The Article presents original quantitative data to document the dramatic rise in American Indian lobbying from 1978 to 2012. Then it uses the modified sociolegal approach to explain how the relationships among courts, the political process, and groups facilitated American Indian legislative advocacy. It concludes by discussing the implications of the approach for studies of legal mobilization, interest groups, and federal Indian law.

Recommended!

New Volume of American Indian Law Journal (Vol. 6, Issue 2)

Matthew L.M. Fletcher

Here:

Volume 6, Issue 2 (2018)

Articles

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I See You – A Story from the Haudenosaunee
Simone Anter J.D.

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Indian Child Welfare Act Annual Case Law Update and Commentary
Kathryn Fort and Adrian T. Smith

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August 2016 – August 2017 Case Law on American Indians
Thomas P. Schlosser

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CDIB: The Role of the Certificate of Degree of Indian Blood in Defining Native American Legal Identity
Paul Spruhan

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Tribal Exclusion Authority: Its Sovereign Basis with Recommendations for Federal Support
Jeremy Wood

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Native American Rights & Adoption by Non-Indian Families: The Manipulation and Distortion of Public Opinion to Overthrow ICWA
Harman Bual

Grant Christensen on ICRA and Banishment

Matthew L.M. Fletcher

Grant Christensen has posted “Civil Rights Notes: American Indians and Banishment, Jury Trials, and the Doctrine of Lenity,” forthcoming in the William & Mary Bill of Rights Journal.

The syllabus:

Indian defendants appearing before tribal courts are not protected by the Bill of Rights. Instead, Congress enacted the Indian Civil Rights Act in 1968 to extend some, but not all, constitutional protections unto Indian reservations. Fifty years later and there continues to be extensive litigation surrounding ICRA.

This paper looks at all of the ICRA cases decided in 2017 to attempt to evaluate the merits of ICRA’s protections of tribal rights. The picture is decidedly mixed. From these cases the paper calls for three changes that directly respond to trends in civil rights litigation. 1) The paper suggests that courts expand the understanding of habeas jurisdiction to extend when an individual has been banished. It argues that banishment is a form of confinement and a restriction of liberty – albeit one where the jail cell is large, essentially the world minus the reservation. 2) Tribes must adopt codes that provide for a trial by jury and rules for determining who constitutes the jury and how it may be empaneled. While ICRA provides for a trial by jury, tribal courts have an affirmative duty to inform defendants of their right to request a jury trial. It is a violation of ICRA if the tribe does not make provisions for a jury when requested. 3) Finally tribal court judgments, when used in other forums, may be ambiguous because tribal law and tribal procedures are distinct from those followed by states or the federal system. Accordingly, any ambiguity that arises in response to a tribal court judgment should be resolved with a reference to the doctrine of lenity.

Kristen Carpenter & Angela Riley: “Privatizing the Reservation?”

Matthew L.M. Fletcher

Kristen A. Carpenter and Angela R. Riley have posted their fascinating article, “Privatizing the Reservation?“, on SSRN. The article is forthcoming in the Stanford Law Review. Here is the abstract:

The problems of American Indian poverty and reservation living conditions have inspired various explanations. One account advanced by certain economists and commentators is now animating the Trump administration’s apparent desire to ‘privatize’ Indian lands, namely that reservation poverty is rooted in the federal Indian trust arrangement, which preserves the tribal land base by limiting the marketability of lands within reservations. Policy makers are advocating for measures that would promote the individuation and alienability of tribal lands, while diminishing federal and tribal oversight, toward wealth maximization. Taking a different view, this Article complicates and challenges the narrative of Indian poverty and land tenure advanced by advocates for privatization. We focus on real estate and housing in Indian Country to make three points. First, we argue the salience of American Indian homelands as places of collective religious significance, socio-economic sustenance, and territorial governance has been lost in the privatization debate, which also largely disregards issues of remedial justice associated with conquest and colonization. Second, we introduce to the legal literature new empirical data and economic analysis demonstrating that the current system of land tenure in Indian Country is much more varied, and recent innovations in federal-tribal housing and finance programs are more promising, than some of the calls for privatization would suggest. Finally, using specific examples from Indian Country, we highlight a model of indigenous self-determination and sustainability, rooted in the international human rights movement, that deserves attention in ongoing domestic policy debates with the potential to advance the well-being of humanity more broadly.

New Scholarship on Tribal-State Cannabis Compacting

Matthew L.M. Fletcher

Matthew Ramirez has published “New Mexico Tribal Cannabis: Policy, Politics, &
Guidance for Government-to-Government Cooperation in State-Tribal Cannabis Compacting” in the Natural Resources Journal. Here is the abstract:

The purpose of this article is three-fold. First, it aims to provide a systematic review of international, United States, state, and federal Indian law and policy surrounding cannabis cultivation, possession, and use in Indian Country. Second, it argues that the 2017 New Mexico tribal medical cannabis bills (SB 345 & HB 348), which were introduced in the first regular session of the New Mexico State Legislature and would have permitted the state to enter into intergovernmental agreements (or compacts) with tribes who choose to implement the state’s medical cannabis program on tribal lands, contained legal vulnerabilities likely to hinder their effectiveness if passed into law. Third, and as a result of this legal and political environment, this article serves as a tribal cannabis policy resource for New Mexico legislators and as a proposal of model legislation and compact terms for the drafting of effective tribal medical cannabis legislation and state-tribal cannabis compacts. Part I provides a historical and legal overview of international and United States federal controlled substances law and policy. Part II explores the issues arising in federal Indian cannabis law and regulation, including: state criminal jurisdiction over non-Public Law 280 tribal lands, state taxation in Indian Country, tribal sovereign immunity, and state-tribal dispute resolution. Part III covers New Mexico cannabis law, including a discussion of the state medical cannabis regulatory apparatus and policy analysis of the 2017 New Mexico tribal medical cannabis bills. Part IV closely analyzes the pros and cons of the 2017 New Mexico tribal medical cannabis bills and provides recommendations for future effective tribal medical cannabis legislation and compact drafting. Finally, Part V puts forward a model tribal medical cannabis bill and state-tribal cannabis compact terms reflecting the legal conclusions drawn herein, which may serve as constructive guidance in a future legislative session or compact negotiations between New Mexico and the Indian nations, tribes, and pueblos within the state.

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New Kevin Washburn Paper: “Everybody Does Better in Indian Country When Tribes are Empowered”

Matthew L.M. Fletcher

Posted in SSRN, here.

The abstract:

Fifty years ago, President Lyndon Johnson appointed a blue ribbon panel called the National Advisory Commission on Civil Disorders to examine the causes of urban riots that happened during the summer of 1967. The Kerner Commission, as the group came to be known, produced a report on March 1, 1968, that identified some of the causes of the unrest. The Kerner Commission report found the riots to be rooted in crushing urban poverty and recommended solutions that would address those deep issues, such as job training, living wages, and funding for public schools. To commemorate the 50th Anniversary of this work and to refocus attention on these important issues, the last living member of the Kerner Commission, former U.S. Senator Fred Harris, compiled a book “Healing our Divided Society: Investing in America Fifty Years After the Kerner Report” that revisits some of these issues. Harris invited several scholars to contribute to the book, including Professor Joseph Stiglitz, Professor Washburn. Professor Washburn contributed the attached essay which highlights the changes that have occurred in federal Indian policy in the last 50 years and makes recommendations about continuing efforts to address poverty there.

Fletcher Review of David Grann’s “Killers of the Flower Moon”

Matthew L.M. Fletcher

Here is “Failed Protectors: The Indian Trust and Killers of the Flower Moon,” forthcoming in the Michigan Law Review.

Abstract:

This Review uses Killers of the Flower Moon as a jumping off point for highlighting for readers how so many Indian people in Indian country can be so easily victimized by criminals. And yet, for however horrible the Osage Reign of Terror, the reality for too many Indian people today is much much worse. The federal government is absolutely to blame for these conditions. This Review shows how policy choices made by all three branches of the federal government have failed Indian people. Part I establishes the federal-tribal trust relationship that originated with a duty of protection. Part II establishes how the United States failure to fulfill its duties to the Osage Nation and its citizens allowed and even indirectly encouraged the Osage Reign of Terror. Part III offers thoughts on the future of the trust relationship in light of the rise of tribal self-determination. Part IV concludes the Review with a warning about how modern crime rates against Indian women and children are outrageously high in large part because of the continuing failures of the United States.

 

New Scholarship from Grant Christensen: “A View from American Courts: The Year in Indian Law 2017”

Matthew L.M. Fletcher

On SSRN, here.

Abstract:

This paper summarizes the topics and trends in Indian law confronted by courts in 2017. Designed as an update that will be useful to practitioners as well as scholars, the paper breaks the discussion down into more than forty topics and subtopics. For this paper I tracked and read all 646 judicial opinions issued by state and federal courts that squarely decided questions of federal Indian law. From those cases I have distilled this update. Ideally the first in an annual collection. 

The paper includes an empirical discussion of Indian law looking at which circuits and districts are presented with the most Indian law questions. It also examines what topics receive the most coverage providing a summary of more than 200 ICWA opinions as well as capturing obscure topics like the 4 cases decided on the Navajo-Hopi Rehabilitation Act. It captures important moments in Indian law like Justice Thomas dissenting from denial of cert. in a land into trust case but also highlights the return of Leonard Peltier to federal court. 

I hope the user finds this comprehensive update a useful survey of Indian law in 2017.