Scholarship

New Article on Racial Bias in Evidence Rules

Ann Tweedy1 Comment

Jasmine Gonzales Rose has posted Toward a Critical Race Theory of Evidence on ssrn. The article is forthcoming in the Minnesota Law Review.

Here’s the abstract:

Scholars, judges, and lawyers have long believed that evidence rules apply equally to all persons regardless of race. This Article challenges this assumption and reveals how evidence law structurally disadvantages people of color. A critical race analysis of stand-your-ground defenses, cross-racial eyewitness misidentifications, and minority flight from racially-targeted police profiling and violence uncovers the existence of a dual-race evidentiary system. This system is reminiscent of nineteenth century race-based witness competency rules that barred people of color from testifying against white people. I deconstruct this problem and introduce the original concept of “racialized reality evidence.” This construct demonstrates how evidence of people of color’s lived experiences of systemic racism are regularly excluded at trial, while evidence of white norms and beliefs receives “implicit judicial notice.” Finally, I advocate for a new critical race theory of evidence law and offer solutions — including a reinterpretation of Federal Rule of Evidence 403 — to increase equality in the courtroom.

“Presidents Lack the Authority to Abolish or Diminish National Monuments” (Published Version)

Matthew L.M. Fletcher

Mark Squillace, Eric Biber, Nicholas S. Bryner, & Sean B. Hecht have published “Presidents Lack the Authority to Abolish or Diminish National Monuments” in the Virginia Law Review Online. PDF

An excerpt:

The narrow authority granted to the President to reserve land[11] under the Antiquities Act stands in marked contrast to contemporaneous laws that delegated much broader executive authority to designate, repeal, or modify other types of federal reservations of public lands. For example, the Pickett Act of 1910 allowed the President to withdraw public lands from “settlement, location, sale, or entry” and reserve these lands for a wide range of specified purposes “until revoked by him or an Act of Congress.”[12] Likewise, the Forest Service Organic Act of 1897 authorized the President “to modify any Executive order that has been or may hereafter be made establishing any forest reserve, and by such modification may reduce the area or change the boundary lines of such reserve, or may vacate altogether any order creating such reserve.”[13]

Unlike the Pickett Act and the Forest Service Organic Administration Act, the Antiquities Act withholds authority from the President to change or revoke a national monument designation. That authority remains with Congress under the Property Clause.

New Scholarship on Navajo Nation Car Buyers and the Subprime Lending Problem

Matthew L.M. Fletcher

Megan Horning has published “Border Town Bullies: The Bad Auto Deal and Subprime
Lending Problem Among Navajo Nation Car Buyers” in the National Lawyers Guild Review:

Horning Article

Tribal Law Journal Volume 17 Issue

Matthew L.M. Fletcher

Here is a link to the Tribal Law Journal’s newest issue, Volume 17: http://lawschool.unm.edu/tlj/volumes/index.php

Volume 17 features three recently published law review articles written by students:

  • Federal Restrictions of Tribal Customary Law: The Importance of Tribal Customary Law in Tribal Courts  by Concetta R. Tsosie de Haro (Dine)
  • “Black Water” – The Devastating Effects of Alcohol on the Core Values of the A:Shiwi (Zuni) by Christy Chapman (Zuni)
  • “Postcolonial” Management of the Transboundary Guaraní Aquifer System: Indigenous Input As A Guide For Environmental Sustainability by Melissa Leonard

Kevin Bruyneel: “Review Essay on Seema Sohi’s Echoes of Mutiny and Suzan Shown Harjo’s Nation to Nation”

Matthew L.M. Fletcher

Kevin Bruyneel has published “Review Essay on Seema Sohi’s Echoes of Mutiny and Suzan Shown Harjo’s Nation to Nation” in the Tulsa Law Review.

New Scholarship on Federal Restrictions on Tribal Customary Law

Matthew L.M. Fletcher

Concetta Tsosie de Haro has posted “Federal Restrictions on Tribal Customary Law: The Importance of Tribal Customary Law in Tribal Courts.” The paper was published in the Tribal Law Journal.

Here is the abstract:

This article examines the adverse effects of federal case law and legislation on tribal courts and tribal courts’ ability to incorporate tribal customary law. Tribal customary law is the law given to tribes by holy deities which governs tribal ways of life. It is important to maintain tribal customary law because it strengthens tribal communities’ identities and cultural foundations. While Supreme Court precedent has, at different times, both restricted and promoted tribes’ ability to use tribal customary law to adjudicate the cases of tribal members, federal legislation including the Major Crimes Act, the Indian Civil Rights Act, the Tribal Law and Order Act, and the Violence Against Women Act continues to restrict tribes’ ability to apply customary law in tribal courts. To illustrate one way in which current federal Indian policy limits tribes’ ability to use customary law, the author highlights the ways in which two-spirit tribal members are excluded and ignored by the protections established in the Violence against Women Act. As the use of tribal customary law is critical to the maintenance of tribal sovereignty, this article advocates for corrections to these legislative restrictions to promote tribal court’s use of tribal customary law.

New Scholarship Arguing, “Presidents Lack the Authority to Abolish or Diminish National Monuments”

Matthew L.M. Fletcher2 Comments

Mark Squillace, Eric Biber, Nicholas S. Bryner, and Sean B. Hecht have posted “Presidents Lack the Authority to Abolish or Diminish National Monuments” on SSRN.

Here is the abstract:

By any measure, the Antiquities Act of 1906 has a remarkable legacy. Under the Act, 16 presidents have proclaimed 157 national monuments, protecting a diverse range of historic, archaeological, cultural, and geologic resources. Many of these monuments, including such iconic places as the Grand Canyon, Zion, Olympic, and Acadia, have been expanded and redesignated by Congress as national parks.

While the designation of national monuments is often celebrated, it has on occasion sparked local opposition, and led to calls for a President to abolish or shrink a national monument that was proclaimed by a predecessor. This article examines the Antiquities Act and other statutes, concluding that the President lacks the legal authority to abolish or diminish national monuments. Instead, these powers are reserved to Congress.

John Borrows Wins 2017 Killam Prize

Matthew L.M. Fletcher

Here is “Prestigious award for leading researcher in Indigenous law.”

Fletcher on Anishinaabe Law and the Round House

Matthew L.M. Fletcher

Matthew Fletcher has published “Anishinaabe Law and the Round House” in the Albany Government Law Review.

Here is the abstract:

This paper addresses the Indian country criminal justice system’s difficulties through the context of the Great Lakes Anishinaabeg’s traditional customs, traditions, and laws, and their modern treatment of crime. Louise Erdrich’s The Round House expertly captures the reality of crime and fear of crime in Anishinaabe Indian country, and offers a bleak view of the future of criminal justice absent serious reform in the near future.

Indian Law Symposium at the Albany Government Law Review

Matthew L.M. Fletcher

Here:

Indian Title: Unraveling the Racial Context of Property Rights, or How to Stop Engaging in Conquest

Joseph William Singer

This article discusses the racial injustice faced by Native Americans, with whom land titles in the United States originated with. The author argues it is vital to interpret the Supreme Court cases of the 19th century that correctly defined Indian title, and to honor the property rights of Indian title just as we do the “fee simple of the whites”.

10 Alb. Govt. L. Rev. 1 (2017)

Indians, Race, and Criminal Jurisdiction in Indian Country

Alex Tallchief Skibine

This article argues that the classification of “Indian” for the purposes of the ICCA and the Duro fix is not “racial” even if it includes non-enrolled people of Indian ancestry. Furthermore, this article discusses the Zepeda court and how it conflicts with the first prong of the Rogers test regarding what type of blood qualifies Indian blood.

10 Alb. Govt. L. Rev. 49 (2017)

Anishinaabe law and “The Round House”

Matthew L.M. Fletcher

This article discusses the rising Indian country violent crime and novelist Lousie Eldrich’s “The Round House” which addresses modern Anishinaabe violent crime where women are violently attacked, and the failure of the federal and tribal criminal justive system to resolve the crime. This article discusses traditional and modern Anishinaabe law, how the two merge, and the problems with contemporary law enforcement mechanisms in the light of jurisidctional issues and a cultural divide.

10 Alb. Govt. L. Rev. 88 (2017)

The Doctrine of Christian Discovery: Its Fundamental Importance in United States Indian Law and the Need for its Repudiation and Removal

Joseph J. Heath, Esq.

This article discusses the doctrine of Christian discovery and how it negatively affects the rights of the Indigenous nations’ land and treaty rights. Though it is difficulty to see how the US Courts or Congress will produce favorable results given the 8-1 Sherrill decision, the author urges the continuation of work with religious and academic communities to pressure the Vatican to rescind the Papal Bulls of the 15th century and to remove the doctrine completely.

10 Alb. Govt. L. Rev. 112 (2017)

Telling Stories in Council and Court: Developing a Reflective Tribal Governance

Leah Jurss

This article discusses the incorporation of traditional story telling into tribal government and legal systems and the dichotomy of tradtional and modern systems. The author argues this approach can be implemented by tribal governments and and legal deparments to stray away from the strict American model, and head towards a new model that incorporates tribal principles yet confroms to the requirements of the Americal legal system.

10 Alb. Govt. L. Rev. 157 (2017)