Scholarship

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.

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.