Scholarship

Current Issue of American Indian Law Review (Vol. 41, No. 1)

Matthew L.M. Fletcher

Here:

Vol. 41, No. 1 (2016-2017)

Click any link to view in PDF format  

Article

Capital, Inequality, and Self-Determination: Creating a Sovereign Financial System for Native American Nations – W. Gregory Guedel, Ph.D and J. D. Colbert

Comments

Why Indigenous Peoples’ Property Rights Matter: Why the United Nations Declaration on the Rights of Indigenous Peoples May Be Used to Condemn Isis and the State of Iraq for Their Failure to Protect the Property Rights of Indigenous Peoples in the Nineveh Plains – Brooke E. Hamilton

Defending the Cobell Buy-Back Program – Rebekah Martin

Intellectual Property Rights and Informed Consent in American Indian Communities: Legal and Ethical Issues– Naomi Palosaari

Raising Capital in Indian Country – Evan Way
Note

Christman v. Confederated Tribes of Grand Ronde: A Chapter in the Disenrollment Epidemic – Tabitha Minke


Special Features

The Dynamic Legal Environment of Daily Fantasy Sports – Elizabeth Lohah Homer

Trespass to Culture: The Bioethics of Indigenous Populations’ Informed Consent in Mainstream Genetic Research Paradigms – Alexandra Winters 

Harvard Law Review Indian Law Commentary Series by Kevin Washburn and Angela Riley

Matthew L.M. Fletcher1 Comment

Here:

What the Future Holds: The Changing Landscape of Federal Indian Policy

Indian Law Commentary Series

Essay by

Native Nations and the Constitution: An Inquiry into “Extra-Constitutionality”

Indian Law Commentary Series

Essay by

Michael Blumm on the Treaty Right to a Habitat

Matthew L.M. Fletcher

Michael Blumm has published “Indian Treaty Fishing Rights and the Environment: Affirming the Right to Habitat Protection and Restoration” in the Washington Law Review.

WaPo: “If Gorsuch is like his colleagues, he’ll constantly interrupt the female justices”

Matthew L.M. Fletcher

Here.

The empirical research backing this claim is here.

Federal Lawyer Indian Law Issue 2017

Matthew L.M. Fletcher

Here:

The Rapidly Increasing Extraction of Oil, and Native Women, in North Dakota
During the past year, the Standing Rock Sioux Tribe and allies made national news as they gathered in prayerful ceremony at the confluence of the Missouri and Cannonball Rivers to stop the construction of the Dakota Access Pipeline project in North Dakota. The pipeline threatens the tribe’s drinking water, sacred sites, and burial grounds, and, as a result, much attention has been paid to the potential environmental and cultural impacts of the pipeline. Little to no focus, however, has been given to the proposed pipeline’s impacts on the safety of Native women and children living in the Bakken region of North Dakota.
Statutory Divestiture of Tribal Sovereignty
The Supreme Court’s non-decision in Dollar General v. Mississippi Band of Choctaw Indians is evidence not only of disagreement on tribal civil jurisdiction but perhaps also uncertainty in how to analyze divestiture of tribal sovereignty. Most scholars (including myself) have described the Court’s behavior in tribal sovereign authority cases as one of judicial supremacy, in that the Court merely makes policy choices based on its own ideological views of tribal power.
Breaking Faith With the Tribal Sovereignty Doctrine
The great Seneca Nation leader and diplomat Red Jacket is said to have illustrated the tribe’s frustration with the insatiable encroachment of those seeking Seneca lands during a negotiation with the Holland Land Company’s agent, Joseph Ellicott. The two were seated on a log.
Tribes and Cannabis: Seeking Parity with States and Consultation and Agreement from the U.S. Government
Sales of legal cannabis reached nearly $7 billion in 2016 and are expected to eclipse $20 billion by 2021. Despite their efforts, and an overarching trust obligation owed by the U.S. government to Indian nations, American Indian tribes adopting state “go-it-alone” models of cannabis legalization have failed to receive parity in treatment with states on cannabis issues and have been met with threats or actions by law enforcement.

Michelle Bryan on Sacred Water within Prior Appropriation

Matthew L.M. Fletcher

Michelle Bryan has posted “Valuing Tribal Sacred Water within Prior Appropriation,” published in the Natural Resources Journal. Here is an excerpt from the abstract:

Much has been written in the area of waters to support fishing rights under treaty. This article does not address these rights, but rather focuses on the sacred nature of the water resource itself. While the two may be complementary, a sacred water use may also exist separate from a recognized treaty fishing right. There are other places where these values should further be reflected, such as federal lands management plans, local land development codes, and environmental assessment review. This piece, however, will focus on the notable absence of sacred value within prior appropriation. This shift is important not only for the legal protections it might afford, but just as importantly as a signal that our water laws can stretch to protect the many interests of our time.

Richard Hughes on Pueblo Water Rights

Matthew L.M. Fletcher

Richard W. Hughes has published “Pueblo Indian Water Rights: Charting the Unknown” in the Natural Resources Journal, Winter 2017.

Here is the abstract:

This article examines the so-far-unsuccessful efforts to judicially define and quantify the water rights appurtenant to the core land holdings of the 19 New Mexico Pueblos, many of whose lands straddle the Rio Grande. It explains that the Tenth Circuit Court of Appeals has squarely held that Pueblo water rights are governed by federal, not state law, and are prior to those of any non-Indian appropriator, but also that the Tenth Circuit acknowledged that it could not say how those rights should be characterized. Part I of the article examines the course of the cases that have sought to achieve this elusive goal. Of the first six cases, filed half a century ago, three ended in negotiated settlements and none of them has yielded a definitive ruling on the nature or measure of Pueblo rights. Of the three cases filed since then, only one is in active litigation on the Pueblo rights issue, but that case may finally lead to a substantive ruling. Part II discusses the few rulings that have been issued in these cases so far relative to Pueblo water rights, and examines the distinctive nature of the issues that are presented by the unique circumstances of the Pueblos’ history and landholdings. The article notes that the ultimate determination of the nature and measure of Pueblo rights could have dramatic consequences for any effort to adjudicate rights on the mainstem of the Upper and Middle Rio Grande.

New Article on Structural Racism and Court Appointed Special Advocates

Kate Fort

If you sat in on a class I taught last week, you’d know this is my new favorite article:

Here.

This paper turns attention away from discussions of the race and economic poverty of the families most affected by the system, and instead looks at the impact of the race and privilege of these volunteer child advocates on child welfare decision-making

Court Appointed Special Advocates (CASA) are volunteers appointed by the court in child welfare cases to argue for a child’s best interests. There are many issues with this system, and I have been in many loud arguments about it (some of you have witnessed them). This article identifies many of those concerns and grounds them in the history of state child welfare systems–including how those systems affect Indian children.

As a side note, I know people personally who have worked hard to develop Tribal CASA programs. Those programs are particularly sensitive to ensuring their volunteers understand the culture of the tribe and their children, which counters the issues inherent in state systems. This article is specifically discussing the issue of CASAs in state systems.

Kyle Whyte on DAPL and Environmental Injustice

Matthew L.M. Fletcher

Kyle Whyte has posted “The Dakota Access Pipeline, Environmental Injustice, and U.S. Colonialism” on SSRN. It is forthcoming in Red Ink.

Here is the abstract:

Starting in April 2016, thousands of people, led by Standing Rock Sioux Tribal members, gathered at camps to stop the construction of the Dakota Access Pipeline (DAPL)—creating the #NoDAPL movement. I am concerned with how critics of #NoDAPL often focus on defending the pipeline’s safety precautions or the many attempts the Army Corps of Engineers made at consulting the Tribe. Yet critics rarely engage what LaDonna Brave Bull Allard calls “the larger story.” To me, as an Indigenous supporter of #NoDAPL, one thread of the larger story concerns how DAPL is an injustice against the Tribe. The type of injustice is one that many other Indigenous peoples can identify with—U.S. settler colonialism. I seek to show how there are many layers to the settler colonial injustice behind DAPL that will take me, by the end of this essay, from U.S. disrespect of treaty promises in the 19th century to environmental sustainability and climate change in the 21st century.

New Student Scholarship on Tribal Criminal Jurisdiction to Crimes Against Children

Matthew L.M. Fletcher

The Harvard Civil Rights-Civil Liberties Law Review has published “What about the Children? Extending Tribal Criminal Jurisdiction to Crimes Against Children” by Alison Burton.

An excerpt:

As explained in Part IV, if Congress extends tribal criminal jurisdiction to non-Indian crimes against children, challenges to this legislation are un- likely to succeed as long as Congress explicitly enacts such jurisdiction through inherent tribal sovereignty.11 Non-Indian defendants’ United States Constitutional rights will be somewhat diminished in tribal courts. How- ever, extending tribal criminal jurisdiction is still justified because criminal defendants’ rights always vary according to the sovereign state in which the crime is committed.12 Furthermore, Part IV demonstrates how tribal crimi- nal jurisdiction can be analogized to court-martial,13 another arena in which the accused is not entitled to full constitutional protections. Just as court- martial is limited to members of the military who have commited crimes, tribal jurisdiction would be limited to non-Indians who have close ties to a tribe and have commited crimes in Indian country.