Scholarship

Bob Anderson on Indigenous Rights to Water and Environmental Protection

Matthew L.M. Fletcher

Robert T. Anderson has published Indigenous Rights to Water & Environmental Protection in the Harvard Civil rights-Civil Liberties Law Journal.

an excerpt:

This article examines the rights of Indian nations in the United States to adequate water supplies and environmental protection for their land and associated resources. Part I of this article provides a brief background on the history of federal-tribal relations and the source and scope of federal obligations to protect tribal resources. Part II reviews the source and nature of the federal government’s moral and legal obligations to Indian tribes, which are generally referred to as the trust responsibility. Indian reserved water rights and the difficulty tribes experience in protecting habitat needed for healthy treaty resources is discussed in Part III. Part IV reviews the Dakota Access Pipeline controversy and the shortcomings of federal law in protecting tribal reservations and resources. Part V concludes with recommendations for enhanced and improved access to justice as well as substantive changes in the law to advance environmental protection for Indian tribes in the United States.

Alex Skibine on Foundational Principles and Limiting Principles in Federal Indian Law

Matthew L.M. Fletcher

Alex Skibine has posted his paper “From Foundational Law to Limiting Principles in Federal Indian Law,” forthcoming in the Montana Law Review as part of the 2018 Browning. The abstract:

In this Article, I am arguing that one of the reasons animating the Court’s move away from Justice Marshall’s exceptionalism is its fear that under traditional foundational principles of federal Indian law, Indian tribes may gain what the court subjectively perceives to be “unfair” advantages over non-Indians. Therefore, the Court has been looking for limiting principles tending to achieve level playing fields between tribal and non-tribal actors. This Article also argues, however, that while looking for a level playing field may sound like a worthwhile goal, there are many pitfalls involved in this process that may end up hurting tribal sovereign interests.

Highly recommended! 

Adrea Korthase on the Definition of “Indian Child” in the Era of Assisted Reproductive Technology

Matthew L.M. Fletcher
Adrea Korthase has published Seminal Choices: The Definition of “Indian Child” in a Time of Assisted Reproductive Technology (Seminal Choices) in the Journal of the American Academy of Matrimonial Lawyers.
HIGHLY RECOMMENDED!

Elizabeth Reese on the People’s Tenth Amendment

Matthew L.M. Fletcher

Elizabeth Reese has posted “Or to the People: Popular Sovereignty and the Power to Choose a Government,” published in the Cardozo Law Review, on SSRN.

Here is the abstract:

To protect state sovereignty, contemporary textualism has reinvigorated the Tenth Amendment as a judicially enforceable limit on federal powers. However, in casting the Tenth Amendment as the states’ rights amendment, these textualists have inexplicably glossed over the Tenth Amendment’s final four words, which reserve powers to “the people.” This Article highlights this inconsistency and argues that this omission ignores a vital structural protection against federal and state tyranny. Viewed through the same textualism that reinvigorated state sovereignty, the Tenth Amendment’s final words cannot be redundant or superfluous but rather define and protect the people as a sovereign body capable of wielding specific powers — particularly those powers that the Constitution places beyond the reach of our governments. Primarily, the Tenth Amendment protects that power which is at the heart of popular sovereignty as well as the foundation of our democracy, the power of the people to choose their government. The Tenth Amendment ought to protect popular sovereignty — as it protects state sovereignty — by serving as a source for robust judicial review of federal and state laws that infringe on popular sovereignty. Recognizing this overlooked portion of the Tenth Amendment could alter current legal doctrine surrounding voting rights by treating free, fair, and accessible elections as a matter of competing sovereign powers rather than individual voting rights. By ignoring the people in the Tenth Amendment, American jurisprudence has ignored a vital structural protection against federal and state tyranny and risked government-driven erosion of democracy in America.

MSU Voice on Campus Talks — Fletcher Talk Tomorrow @ Lunch

Matthew L.M. Fletcher

New Scholarship on Tribal Bankruptcy

Matthew L.M. Fletcher

Laura Coordes has posted “Beyond the Bankruptcy Code: A New Statutory Bankruptcy Regime for Tribal Debtors,” forthcoming in the Bankruptcy Developments Journal, on SSRN.

Here is the abstract:

Native American tribes and tribal businesses play an important role in U.S. commerce, but many of these entities are effectively prohibited from filing for bankruptcy relief when financial distress occurs. This Article demonstrates how and why the Bankruptcy Code is a poor fit for these “tribal debtors” and suggests that Congress enact a new statutory regime to provide structured debt relief for these entities rather than modify the Bankruptcy Code.

Although this proposal is novel with respect to tribal debtors, Congress has looked beyond the Bankruptcy Code to provide debt relief when use of the Code would be inapt on two other recent occasions: the passage of the Dodd-Frank Act and PROMESA. Using tribal debtors as an example, this Article investigates whether and how this practice might continue and what it might mean for the bankruptcy system writ large.

New Scholarship on Indian Treaty Rights and Fossil-Fuel Exports Projects in the Pacific Northwest

Matthew L.M. Fletcher

Michael C. Blumm & Jeffrey Litwak have posted “Democratizing Treaty Fishing Rights: Denying Fossil-Fuel Exports Projects in the Pacific Northwest,” forthcoming in the Colorado Natural Resources, Energy & Environmental Law Review, on SSRN.

Here is the abstract:

Indian treaty fishing rights scored an important judicial victory recently when an equally divided U.S. Supreme Court affirmed the Ninth Circuit’s decision in the so-called “culverts case,” which decided that the Stevens Treaties of the 1850s give the tribes a right to protect salmon migration obstructed by barrier road culverts. The implications of that decision on other habitat damaging activities have yet to be ascertained, but even prior to the resolution of the culverts case there were significant indications that federal, state, and local administrative agencies were acting to protect treaty fishing rights from the adverse effects of large fossil-fuel export projects proposed throughout the Pacific Northwest. After briefly explaining the culverts decision, this article examines five recent examples of agencies denying permits for fossil-fuel developments at least in part of treaty rights grounds. We draw some lessons from these examples concerning the importance of tribal participation in administrative processes and explore some knotty evidentiary issues that tribal efforts to protect their historic fishing sites may entail. We conclude that safeguarding their treaty rights in the 21st century will require tribes to be as vigilant about the administrative process as they have been about seeking judicial protection.

New Scholarship by Jeanette Wolfley on Indian Tribes and the Energy Industry

Matthew L.M. Fletcher

Jeanette Wolfley has published “Embracing Engagement: The Challenges and Opportunities for the Energy Industry and Tribal Nations on Projects Affecting Tribal Rights and Off-Reservation Lands” in the Vermont Journal of Environmental Law.

 

Chris Chaney on Data Sovereignty in Tribal Governance

Matthew L.M. Fletcher

Christopher B. Chaney has published “Data Sovereignty in Tribal Governance” in TribalNet Magazine.

New Scholarship on IP and Traditional Knowledge in Tribal Codes

Matthew L.M. Fletcher

Dalindyebo Bafana Shabalala has posted “Intellectual Property, Traditional Knowledge, and Traditional Cultural Expressions in Native American Tribal Codes” on SSRN.

Here is the abstract:

Indigenous peoples and nations have been making demands for protection and promotion of their intellectual property, traditional knowledge, and traditional cultural expressions in domestic and international fora. The power of the basic demand is one that lies in claims of moral duty and human rights. This Article argues that in order for such claims to have power, one of the necessary elements for success is that the demandeurs themselves need to provide such protection within whatever scope of sovereignty that they exercise. In the context of Native American tribes seeking protection for Native American intellectual property under federal law in the broader territory of the United States, this Article argues that a necessary condition for success may be ensuring such protection on their own tribal territory. This Article serves as an early contribution to a broader research agenda aimed at providing more data as a basis for tribal claims for protection of their traditional knowledge and traditional cultural expressions. It presents a survey of the nature and scope of legal and formal protection that tribal legislation in the United States has provided for traditional knowledge and traditional cultural expressions. It further surveys and analyzes the nature and scope of protection provided under federal law and assesses the gap between what tribal codes provide and what federal law provides. It then proposes a series of next steps as a research agenda.