Scholarship

Washburn & Cummings: “Explaining the Modernized Leasing and Right-of-Way Regulations for Indian Lands”

Matthew L.M. Fletcher

Kevin Washburn & Jody Cummings have posted “Explaining the Modernized Leasing and Right-of-Way Regulations for Indian Lands.”

The abstract:

The Obama Administration enacted significant reforms to the regulatory rules governing federal leasing and right of way approvals across tribal lands in Parts 162 and 169 of the Indian title of the federal regulations. These reforms had many aims. They sought to improve the environment for economic development on Indian reservations by speeding regulatory approvals, increasing predictability (by, in part, narrowing agency discretion), and increasing deference to tribal governmental decisions. The reforms sought to help tribal governments capture economic value that had previously been denied them, for example, by preventing so called “piggybacking” on pre-existing rights of way and clarifying the rules of taxation related to economic activity. On the other hand, the reforms also sought to assure greater deference to tribal decisions, even when tribal governments act for non-economic purposes. For example, the agency will now defer to decisions to lease land for less than fair market value if a tribal government wishes for approval for other reasons. This descriptive work, prepared for a Rocky Mountain Mineral Law Foundation conference in 2017, details these regulatory reforms.

Alex Skibine on the Last 30 Years of Indian Law in the Supreme Court

Matthew L.M. Fletcher1 Comment

Alexander Tallchief Skibine has posted “The Supreme Court’s Last 30 Years of Federal Indian Law: Looking for Equilibrium or Supremacy?” He presented this paper at the PLSI 50th Anniversary.

Here is the abstract:

Since 1831, Indian nations have been viewed as Domestic Dependent Nations located within the geographical boundaries of the United States. Although Chief Justice John Marshall acknowledged that Indian nations had a certain amount of sovereignty, the exact extent of such sovereignty as well as the place of tribes within the federal system has remained ill-defined. This Article examines what has been the role of the Supreme Court in integrating Indian nations as the third Sovereign within our federalist system. The Article accomplishes this task by examining the Court’s Indian law record in the last 30 years. The comprehensive survey of Indian law decisions indicates that the Court has had difficulties upholding the federal policy of respecting tribal sovereignty and encouraging tribal self-government. After categorizing the cases between victories and losses, the Article divides the cases into four categories: Federal common law, statutory interpretation, constitutional law, and procedural law. The cases are then further divided into four general areas: 1. Tribal Sovereign/Political rights, 2. Economic Rights (treaty/property rights), 3. Rights derived from the trust relationship, and 4. Cultural/Religious rights.

The Article next focuses on the interaction between the Court and Congress concerning the incorporation of tribes as the third sovereign within the federalist system. This Part first evaluates Congress’s response to Supreme Court cases and then looks at the Court’s response to congressional legislation. The Article ends by arguing that through its disproportionate use of federal common law in its Indian law decisions, the Court has not attempted to reach a consensus with Congress about the place of Indian nations within our federalism. Instead, it has aimed to establish what the Court perceives should be the proper equilibrium between tribal interests on one hand and the non-Indian/state interests on the other.

2017-2018 American Indian Law Review Writing Competition Announcement

Matthew L.M. Fletcher

Here, from AILR:

AILR has proudly served Native communities since 1973, and each year at this time we encourage law students nationwide to participate in this, the longest-running competition of its kind.  Papers will be accepted on any legal issue specifically concerning American Indians or other indigenous peoples.  Three cash prizes will be awarded, including $1,000 for the first place winner.

The competition is open to all students enrolled in J.D. or graduate law programs at accredited law schools as of the competition deadline of Jan. 31, 2018.  Winners will be announced on or before May 1, 2018.

Rules Sheet 2017-18 – final

The full rules sheet is available at http://www.law.ou.edu/faculty-and-scholarship/journals/american-indian-law-review/writing-competition.

Paul Spruhan on the Law of the Certificate of Degree of Indian Blood (CDIB)

Matthew L.M. Fletcher1 Comment

Paul Spruhan posted “CDIB: The Role of the Certificate of Degree of Indian Blood in Defining Native American Legal Identity” on SSRN.

The abstract:

This essay discusses the “CDIB” or Certificate of Indian or Alaska Native Blood, a document that proves an individual’s quantum of Native American blood. The CDIB is a federal document issued by the Bureau of Indian Affairs or by tribal nations through a “638” self-determination contract, but without published regulations or even clear written guidelines. The essay discusses its mysterious origins, its primary purpose, and its role in defining Native American legal identity. It also suggests some provisions to be included in final regulations, should the Bureau of Indian Affairs revive its attempt to publish CDIB regulations.

Tiya Miles Lecture on “The Dawn of Detroit” (Indigenous Peoples’ Day)

Matthew L.M. Fletcher1 Comment

The book page is here. The blurb:

Most Americans believe that slavery was a creature of the South, and that Northern states and territories provided stops on the Underground Railroad for fugitive slaves on their way to Canada. In this paradigm-shifting book, celebrated historian Tiya Miles reveals that slavery was at the heart of the Midwest’s iconic city: Detroit.

In this richly researched and eye-opening book, Miles has pieced together the experience of the unfree—both native and African American—in the frontier outpost of colonial Detroit, a place wildly remote yet at the center of national and international conflict. Skillfully assembling fragments of a distant historical record, Miles introduces new historical figures and unearths struggles that remained hidden from view until now. The result is fascinating history, little explored and eloquently told, of the limits of freedom in early America, one that adds new layers of complexity to the story of a place that exerts a strong fascination in the media and among public intellectuals, artists, and activists.

A book that opens the door on a hidden past, The Dawn of Detroit is a powerful and elegantly written history, one that completely changes our understanding of slavery’s American legacy.

Here:

New Indian Law Scholarship

Matthew L.M. Fletcher

Kirsten Matoy Carlson, Tribes Lobbying Congress: Who Wins and Why – Draft Report Presented at the 13th Annual Indigenous Law Conference Michigan State University

Stephanie Phillips, Columbia River Tribal Housing: Federal Progress Addressing Long Unmet Obligations [Ecology Law Quarterly]

Robert T. Anderson, Protecting Offshore Areas from Oil and Gas Leasing: Presidential Authority Under the Outer Continental Shelf Lands Act and the Antiquities Act [forthcoming Ecology Law Quarterly]

Jessica A. Shoemaker, Pipelines, Protest, and Property [forthcoming Great Plains Research]

Doug Kiel, Bleeding Out: Histories and Legacies of ‘Indian Blood’, in K Ratteree and N Hill, The Great Vanishing Act: Blood Quantum and the Future of Native Nations, 2017

Tereza M. Szegh, Indigenous Rights In The Trump Era

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

 

 

 

American Indian Law Journal: Call for Submissions to Spring 2018 Issue

Matthew L.M. Fletcher

AILJ

The American Indian Law Journal, published by the Seattle University School of Law, serves as a vital online resource providing high quality articles on issues relevant to Indian law practitioners and scholars across the country. The American Indian Law Journal accepts articles and abstracts on Indian Law for consideration from students, practitioners, tribal members, and law school faculty members.

The American Indian Law Journal is currently
accepting submissions for potential publication
in the spring 2018 issues.

Submission Deadline:

Spring issue January 15, 2018

Article submissions are accepted through Scholastica, BePress, and AILJ@seattleu.edu. The editing process for publication begins soon after these deadlines for each respective issue. The American Indian Law Journal respectfully requests that authors please use footnotes rather than endnotes. All footnotes must conform to the 20th edition of The Bluebook.

For more information or to submit an article, please contact Tracey Cook-Lee, Content Editor, AILJ@seattleu.edu.

New Book: “Claiming Turtle Mountain’s Constitution: The History, Legacy, and Future of a Tribal Nation’s Founding Documents” by Keith Richotte

Matthew L.M. Fletcher

Claiming Turtle Mountain’s Constitution: The History, Legacy, and Future of a Tribal Nation’s Founding Documents

By Keith Richotte Jr.

TM Book

In an auditorium in Belcourt, North Dakota, on a chilly October day in 1932, Robert Bruce and his fellow tribal citizens held the political fate of the Turtle Mountain Band of Chippewa Indians in their hands. Bruce, and the others, had been asked to adopt a tribal constitution, but he was unhappy with the document, as it limited tribal governmental authority. However, white authorities told the tribal nation that the proposed constitution was a necessary step in bringing a lawsuit against the federal government over a long-standing land dispute. Bruce’s choice, and the choice of his fellow citizens, has shaped tribal governance on the reservation ever since that fateful day.

In this book, Keith Richotte Jr. offers a critical examination of one tribal nation’s decision to adopt a constitution. By asking why the citizens of Turtle Mountain voted to adopt the document despite perceived flaws, he confronts assumptions about how tribal constitutions came to be, reexamines the status of tribal governments in the present, and offers a fresh set of questions as we look to the future of governance in Native America and beyond.

For more information and to read an excerpt, visit the book page.

New Scholarship on Sovereign Immunity from Patent Claims

Matthew L.M. Fletcher1 Comment

Here is “Shielded by Sovereignty: The Impact for Patentees of Covidien v. University of Florida Research Foundation” by Matt Rizzolo, Samuel L Brenner, Andrew J Sutton, and Michael Gershoni.

Academic Kerfuffle over Scholarship Equating Events at Jamestown in 1622 to Genocide

Matthew L.M. Fletcher

Here is “Letter to the Editors of the Journal of the History of International Law.”

Working on getting link to original article, which is “The Forgotten Genocide in Colonial America: Reexamining the 1622 Jamestown Massacre within the Framework of the UN Genocide Convention,” but not very hard.