Scholarship

New Student Scholarship on Indian Country Cross Deps

Matthew L.M. Fletcher1 Comment

Here is “Bridging the Jurisdictional Void: Cross-Deputization Agreements in Indian Country,” forthcoming in the Arizona State Law Journal.

The abstract:

Comment examines cross-deputization agreements in Indian Country, focusing on the relationship between tribes and state and local governments and the impact cross-deputization agreements have on enforcing criminal law in Indian Country. Section I examines the recent rise and evolution in tribal law enforcement powers. Section II briefly addresses the current ability of tribal police to enforce laws off of tribal land and the ability of state police to enforce laws on tribal land. Finally, Section III examines the benefits and issues involved with cross deputization agreements.

American Indian Law Journal Volume 6, Issue 1

Matthew L.M. Fletcher

Here:

Volume 6, Issue 1 (2017)

Articles

PDF

By Any Means: How One Federal Agency is Turning Tribal Sovereignty on its Head
Clifton Cottrell

PDF

Beyond a Zero-Sum Federal Trust Responsibility: Lessons from Federal Indian Energy Policy
Monte Mills

PDF

Indian Sovereignty, General Federal Laws, and the Canons of Construction: An Overview and Update
Bryan H. Wildenthal

PDF

The Sioux’s Suits: Global Law and the Dakota Access Pipeline
Stephen Young

PDF

A Hell of a Complex: The Miscarriages of the Federal Hydropower Licensing Regime
Derek Red Arrow Frank

PDF

Solution Before Pollution: Mining and International Transboundary Rivers in Southeast Alaska
Britany Kee’ ya aa. Lindley

PDF

Conservation Easements: A Flexible New Tool for Washington Tribes, A Case Study of the Lower Elwha Klallam Tribe
David P. Papiez

Gregory Ablavsky on the Phrase “With the Indian Tribes” in the Commerce Clause

Matthew L.M. Fletcher

Gregory Abalvsky has posted “‘With the Indian Tribes’: Race, Citizenship, and Original Constitutional Meanings,” forthcoming in the Stanford Law Review.

Here is the abstract:

Under black-letter law declared in Morton v. Mancari, federal classifications of individuals as “Indian” based on membership in a federally recognized tribe rely on a political, not a racial, distinction, and so are generally subject only to rational-basis review. But the Supreme Court recently questioned this long-standing dichotomy, resulting in renewed challenges arguing that, because tribal membership usually requires Native ancestry, such classifications are race-based.

The term “Indian” appears twice in the original U.S. Constitution. A large and important scholarly literature has developed arguing that this specific constitutional inclusion of “Indian tribes” mitigates equal protection concerns. Missing from these discussions, however, is much consideration of these terms’ meaning at the time of the Constitution’s adoption. Most scholars have concluded that there is a lack of evidence on this point—a “gap” in the historical record.

This Essay uses legal, intellectual, and cultural history to close that “gap” and reconstruct the historical meanings of “tribe” and “Indian” in the late eighteenth century. Rather than a single “original meaning,” it finds duality: Anglo-Americans of the time also alternated between referring to Native communities as “nations,” which connoted equality, and “tribes,” which conveyed Natives’ purported uncivilized status. They also defined “Indians” both in racial terms, as non-white, and in jurisdictional terms, as non-citizens.

These contrasting meanings, I argue, have potentially important doctrinal implications for current debates in Indian law, depending on the interpretive approach applied. Although the term “tribe” had at times derogatory connotations, its use in the Constitution bolsters arguments emphasizing the significance of Native descent and arguably weakens current attacks on Native sovereignty based on invidious legal distinctions among Native communities. Similarly, there is convincing evidence to read “Indian” in the Constitution in political terms, justifying Morton’s dichotomy. But interpreting “Indian” as a “racial” category also provides little solace to Indian law’s critics, since it fundamentally undermines their insistence on a colorblind Constitution.

American Indian Scholarship Update

Matthew L.M. Fletcher

Here are selected papers available online:

Reimagining Relocation in a Regulatory Void: The Inadequacy of Existing Us Federal and State Regulatory Responses to Kivalina’s Climate Displacement in the Alaskan Arctic

Climate Law, Vol. 7, No. 4, pp. 290–321 (2017) ,
Posted: 05 Dec 2017
Accepted Paper Series
Jennifer Marlow and Lauren E. Sancken

 

Here Today, Gone Tomorrow – Is Global Climate Change Another White Man’s Trick to Get Indian Land? The Role of Treaties in Protecting Tribes As They Adapt to Climate Change

Michigan State Law Review, Vol. 2017
Number of pages: 54 Posted: 27 Nov 2017
Accepted Paper Series
Hope M. Babcock

Tribal Sovereignty and the Recognition Power

Number of pages: 77 Posted: 08 Nov 2017
Working Paper Series
Lance Sorenson
Stanford Law School

The Body Subject To The Laws: Louise Erdrich’s Metaphorical Incarnation Of Federal Indian Law In “The Round House”, 

Laurel Jimenez
2017University of Washington Tacoma

Parchment As Power: The Effects Of Pre-Revolutionary Treaties On Native Americans From The Colonial Period To Present, 

Katie Wilkinson
2017Purdue University

Accounting for Conquest: The Price of the Louisiana Purchase of Indian Country

Robert Lee

Author Notes
Journal of American History, Volume 103, Issue 4, 1 March 2017, Pages 921–942, https://doi.org/10.1093/jahist/jaw504
Published:
01 March 2017

New Issue of American Indian Law Review

Matthew L.M. Fletcher

Here:

Articles

The Fairness of Tribal Court Juries and Non-Indian Defendants – Julia M. Bedell   PDF

Access to Energy in Indian Country: The Difficulties of Self-Determination in Renewable Energy Development – Nicholas M. Ravotti   PDF

Federal Indian Law in the New Administration

States and Their American Indian Citizens – Matthew L.M. Fletcher   PDF

The Tribal Labor Sovereignty Act: Do Indian Tribes Finally Hold a Trump Card? – Vicki J. Limas   PDF

Continuing to Work for Indian Country in the 115th Congress – T. Michael Andrews   PDF

Comments

Mega Sporting Events Procedures and Human Rights: Developing an Inclusive Framework – Abby Meaders Henderson   PDF

Improving Microfinance Through International Agreements and Tailoring the System to Assist Indigenous Populations – Jacob Krysiak   PDF

Indigenous People, Human Rights, and Consultation: The Dakota Access Pipeline – Walter H. Mengden IV   PDF

Note

Yellowbear v. Lampert— Putting Teeth into the Religious Land Use and Institutionalized Person Act of 2000 – Nathan Lobaugh   PDF

Special Feature

Winner, Best Appellate Brief in the 2017 Native American Law Student Association Moot Court Competition – Devon Suarez & Simon Goldenberg   PDF

Rick Collins on Tribal Immunity

Matthew L.M. Fletcher

Richard B. Collins posted “To Sue and Be Sued: Capacity and Immunity of American Indian Nations,” forthcoming in the Creighton Law Review.

Here is the abstract:

Can American Indian nations sue and be sued in federal and state courts? Specific issues are whether tribes have corporate capacity to sue, whether a Native group has recognized status as a tribe, and whether and to what extent tribes and their officers have governmental immunity from suit. Tribal capacity to sue is now well established, and federal law has well-defined procedures and rules for tribal recognition. But tribal sovereign immunity is actively disputed.

This paper reviews retained tribal sovereignty in general and summarizes past contests over tribal capacity to sue and their resolution into today’s settled rule. Next is a concise statement of the law on federal recognition of tribal entities. Most of the paper explains and analyzes ongoing issues about tribal immunity from suit. Tribal immunity has been continuously recognized from the first reported decision, but tribes’ commercial activities, modern attacks on immunity generally, and states rights proclivities of some justices jeopardize its existence. Much active litigation involves suits against tribal officers and possible application of the Ex parte Young doctrine. For many reasons, tribes are adopting carefully defined consents to suit, particularly in relation to tribal casinos. This paper’s essential purpose is to give tribes and their lawyers a full account of the law on tribal immunity and current disputes about it.

Fletcher Paper on States and American Indian Citizenship Rights (+ ICWA)

Matthew L.M. Fletcher

Here is “States and Their American Indian Citizens,” recently published in the American Indian Law Review.

An excerpt:

This article is intended to provide a theoretical framework for tribal advocates seeking to approach state and local governments to discuss cooperation with Indian nations, with a special emphasis on Indian child welfare. While the federal government has a special trust relationship with Indians and Indian nations, Indian people are also citizens and residents of the states in which they live. Thus, states have obligations to Indians as well.

This article posits the fairly controversial and novel position that states have obligations to guarantee equal protection to all citizens, including American Indians (and non-Indians) residing in Indian country. In other words, states have an affirmative obligation to ensure that reservation residents, Indian and non-Indian, receive the same services from states that off-reservation residents receive.

ABA Human Rights Journal: “Tribal Disenrollment Demands a Tribal Answer”

Matthew L.M. Fletcher

William R. Norman Jr., Kirke Kickingbird, and Adam P. Bailey have published “Tribal Disenrollment Demands a Tribal Answer” in the ABA Human Rights Journal.

Differing Scholarly Opinions on the Ethics of Representing Tribes Engaged in Disenrollments

Matthew L.M. Fletcher

Here is George K. Komnenos, Tribal Advocates as Ministers of Justice: A Potentially Problematic Concept, 29 Geo. J. Legal Ethics 1079 (2016): GeorgeKKomnenosTribalAdvo

An excerpt:

In June 2015, the National Native American Bar Association (NNABA) adopted its first Ethics Opinion entitled Formal Duties of Tribal Court Advocates to Ensure Due Process Afforded to All Individuals Targeted for Disenrollment (“Opinion”). The Opinion is not intended to prescribe an overarching code of professional conduct for tribal advocates. On the contrary, the Opinion serves as a reminder to attorneys and Indian bar associations that “lawyers’ ethical obligations to their licensing jurisdictions do not stop at reservation boundaries.” The Opinion puts forward the notion that tribal advocates have a dual duty: they are bound not only to their individual clients, but to the Native American community at large. According to the Opinion, “[t]he responsibility of a tribal advocate differs from that of the usual advocate; his or her duty is to further justice in the greater Native American community, not merely to win his or her case.” Though this statement is made in the context of encouraging lawyers to be vigilant in defending their clients’ constitutional rights, it bears grave dangers.

And here is Nicole Russell, “To Further Justice in the Greater Native American Community”: Ethical Responsibilities of a Tribal Attorney in Disenrollment Disputes, 30 Geo. J. Legal Ethics 911 (2017):

TO FURTHER JUSTICE IN THE GREATER NATIVE AMERICAN COMMUNITY ETHICAL RESPONSIBI

An excerpt:

This Note will explore the ethical challenges faced by attorneys when representing member clients in two contexts. Part I will examine the generally heightened ethical obligations facing attorneys in their representations of tribal clients. This section will provide an analysis of procedural and ethical requirements, detail their variances, and point to recent attempts by tribal coalitions to develop a more coordinated code to guide nonmember representation. The discussion will necessarily involve the Model Rules of Professional Conduct(Model Rules) and their state derivations because many tribes have used these codes as the foundation for their own standards. Part II will examine what has been termed the tribal “disenrollment epidemic” and interrogate the premise that tribal advocates have a duty to distance themselves from disenrollment proceedings. Ultimately, this Note posits that not only are tribal advocates held to more– and sometimes higher–ethical standards than those put forth in the Model Rules, but that they are barred from representing tribes in many of the ongoing disenrollment proceedings which take place without the trappings of due process.

 

 

New Scholarship Proposing a National Tribally Owned Lien Filing System to Support Access to Capital in Indian Country

Matthew L.M. Fletcher

William H. Henning, Susan M Woodrow and Marek Dubovec have posted their paper, “A Proposal for a National Tribally Owned Lien Filing System to Support Access to Capital in Indian Country,” forthcoming in the Wyoming Law Review.