Scholarship

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.

New Scholarship on the Tohono O’odham Legal Systems

Matthew L.M. Fletcher

Kyle Fields has posted “Tohono O’odham Legal Systems” on SSRN.

Here is the abstract:

This short essay surveys the Tohono O’odham’s legal system through three periods. First, it discusses the traditional O’odham legal system, which relied on himdag (culture or way of life). Second, it reviews how the Spanish, using an inquisitorial system based on Christian religious law, altered the O’odham’s legal system. Third, it analyzes how the secular American adversarial system changed the O’odham’s legal system.

2018 Montana Law Review Browning Symposium: The Future of Federal Indian Law and the (New) Roberts Court

Matthew L.M. Fletcher

Here (PDF).

 

New Paper on The Extraterritorial Reach of Tribal Court Criminal Jurisdiction

Matthew L.M. Fletcher

Grant Christensen has posted “The Extraterritorial Reach of Tribal Court Criminal Jurisdiction” on SSRN. Here is the abstract:

Conflicts over the jurisdiction between tribal, state, and federal courts arise regularly due to the nature of overlapping sovereignty. The Supreme Court accepts an average of almost three Indian law cases a year and has decided more than twenty Indian law cases with a jurisdictional focus since 1978. As tribes become wealthier, they are increasingly acquiring new lands outside of their existing reservations. This expansion of territory generates new border zones where state and tribal interests converge. The Sixth Circuit recently decided the first federal appellate case dealing with the inherent criminal powers of tribal court jurisdiction over the conduct of Indians on tribal land that is located outside of the tribe’s reservation. The unanimous decision of the Sixth Circuit panel upheld the tribe’s inherent right to extraterritorial criminal jurisdiction, but read into the opinion some limiting caveats that originate from civil, and not criminal, jurisdictional principles. This paper reads the Sixth Circuit’s decision in Kelsey v. Pope as the first in what is surely to be a myriad of conflicts over the extraterritorial jurisdiction of tribal courts. It suggests that while the Sixth Circuit’s approach to tribal sovereignty is generally in keeping with Supreme Court precedent, the court erred by conflating criminal with civil authority and thus over limited its discussion of the inherent powers of tribal courts. Instead the paper suggests that a more consistent reading of the inherent extraterritorial criminal powers of Indian tribes should support jurisdiction over both tribal members and tribal territory unless Congress has expressly circumscribed tribal authority. This broader understanding of extraterritorial jurisdiction is not only simpler to apply, but finds better support in Supreme Court precedent than the convoluted reasoning adopted by the Sixth Circuit.

Indigenous Law Journal — Call For Submissions

Matthew L.M. Fletcher

Here.

Deadline: September 10, 2018

Please contact the Submissions Manager prior to making an oral submission, or to submit written work: submissions.ilj@utoronto.ca

If someone you know would like to receive future calls for submissions, please signup here!

New Scholarship on Tribal Jurisdiction to Protect Native Women and Children

Matthew L.M. Fletcher

Sarah Deer & Mary Kathryn Nagle have published Return to Worcester:
 Dollar General and the Restoration of Tribal Jurisdiction to Protect Native Women and Children in the Harvard Journal of Law and Gender.

An excerpt:

The Supreme Court’s recent 4-4 tie-vote in Dollar General Corp. v. Mississippi Band of Choctaw Indians signals a distinctive shift away from the incoherent modern framework created by Oliphant v. Suquamish Indian Tribe—a framework that stripped Tribal Nations of their inherent authority to protect Native women from non-Indian perpetrated violence. With four Justices voting for—and not against—tribal jurisdiction, Dollar General signals a return to the Court’s 1832 decision in Worcester v. Georgia, wherein the Court affirmed the exclusive authority of Tribal Nations to exercise criminal jurisdiction over non-Indians who willingly enter tribal lands. For Native women—and the Tribal Nations that seek to protect them—the Court’s 2016 result in Dollar General signals a significant victory.