Scholarship

Fletcher & Singel on the Historical Basis for the Trust Relationship between the US and Indian Children

Matthew L.M. Fletcher2 Comments

Fletcher & Singel have posted “Indian Children and the Federal Tribal Trust Relationship” on SSRN.

Here is the abstract:

This article develops the history of the role of Indian children in the formation of the federal-tribal trust relationship and comes as constitutional challenges to the Indian Child Welfare Act (ICWA) are now pending. We conclude the historical record demonstrates the core of the federal-tribal trust relationship is the welfare of Indian children and their relationship to Indian nations. The challenges to ICWA are based on legally and historically false assumptions about federal and state powers in relation to Indian children and the federal government’s trust relationship with Indian children.

Indian children have been a focus of federal Indian affairs at least since the Framing of the Constitution. The Founding Generation initially used Indian children as military and diplomatic pawns, and later undertook a duty of protection to Indian nations and, especially, Indian children. Dozens of Indian treaties memorialize and implement the federal government’s duty to Indian children. Sadly, the United States then catastrophically distorted that duty of protection by deviating from its constitution-based obligations well into the 20th century. It was during this Coercive Period that federal Indian law and policy largely became unmoored from the constitution.

The modern duty of protection, now characterized as a federal general trust relationship, is manifested in federal statutes such as ICWA and various self-determination acts that return self-governance to tribes and acknowledge the United States’ duty of protection to Indian children. The federal duty of protection of internal tribal sovereignty, which has been strongly linked to the welfare of Indian children since the Founding, is now as closely realized as it ever has been throughout American history. In the Self-Determination Era, modern federal laws, including ICWA, constitute a return of federal Indian law and policy to constitutional fidelity.

Angela Riley & Kristen Carpenter Publish “Owning Red”

Matthew L.M. Fletcher1 Comment

Angela R. Riley and Kristen A. Carpenter have published “Owning Red: A Theory of Indian (Cultural) Appropriation” (PDF) in the Texas Law Review.

Here is the abstract:

In a number of recent controversies, from sports teams’ use of Indian mascots to the federal government’s desecration of sacred sites, American Indians have lodged charges of “cultural appropriation” or the unauthorized use by members of one group of the cultural expressions and resources of another.  While these and other incidents make contemporary headlines, American Indians often experience these claims within a historical and continuing experience of dispossession.  For hundreds of years, the U.S. legal system has sanctioned the taking and destruction of Indian lands, artifacts, bodies, religions, identities, and beliefs, all toward the project of conquest and colonization.  Indian resources have been devalued by the law and made available for non-Indians to use for their own purposes.  Seeking redresses for the losses caused by these actions, tribes have brought claims under a variety of laws, from trademark and copyright to the First Amendment and Fifth Amendment, and some have been more successful than others.  As a matter of property law, courts have compensated—albeit incompletely—the taking of certain Indian lands and have also come to recognize tribal interests in human remains, gravesites, and associated artifacts.  When it comes to intangible property, however, the situation is more complicated.  It is difficult for legal decision makers and scholars alike to understand why Indian tribes should be able to regulate the use of Indian names, symbols, and expressions.  Indeed, non-Indians often claim interests, sounding in free speech and the public domain, in the very same resources.  To advance understanding of this contested area of law, Professor Riley and Professor Carpenter  situate intangible cultural property claims in a larger history of the legal dispossession of Indian property—a phenomenon they call “Indian appropriation.”  It then evaluates these claims vis-à-vis prevailing legal doctrine and offers a normative view of solutions, both legal and extralegal.

2016 Indian Law Conference – Friday May 6, 2016 @ Mystic Lake Casino Hotel

Sarah M Donnelly

Agenda and registration previously posted here.

MAIBA Members and Friends,

Please join us at the 2016 Indian Law Conference on Friday May 6th at the Mystic Lake Casino Hotel.  We have an excellent program with several national speakers and cutting edge topics.  Senator Franken is invited and Professor Sarah Deer will be honored at the reception on Friday afternoon.

Our co-sponsor Minnesota CLE is handling registration.  Please find attached the brochure agenda.  You can view the same material and register by using the following link:

http://www.minncle.org/E-PromosHTML/indian2016.htm

Please share this email with others who may be interested in attending.

We hope to see you on Friday May 6th!

On behalf of the MAIBA CLE Committee,

Reid S. Raymond
Assistant Hennepin County Attorney

BIA’s Brief in Support of Partial Dismissal in Mashpee Wampanoag Carcieri Challenge

Sarah M Donnelly1 Comment

Here are the materials, so far, in Littlefield et. al. v. U.S. Department of Interior (D. Mass.):

Doc. 1 – Complaint for Declaratory and Injunctive Relief

Doc. 10 – United States’ Memorandum of Law in Support of Motion for Partial Dismissal

Except:

Plaintiffs’ Fifth Cause of Action seeks a declaration that the IRA, enacted over eighty years ago, is unconstitutional. Plaintiffs specifically allege that the IRA’s provision authorizing the Secretary to acquire land in trust on behalf of federally-recognized Indian tribes somehow reflects an unconstitutional delegation of legislative authority. This legal question, however, has long been resolved against Plaintiffs by all courts to consider it, including the First Circuit in a decision binding on this Court. Federal courts have held, consistently and repeatedly, that the Secretary’s authority to acquire land in trust under the IRA does not violate the United States Constitution because there are sufficient intelligible principles provided in the statute and its legislative history to guide the Secretary’s discretion whether to acquire land in trust on behalf of a tribe. Moreover, it has been over 85 years since the Supreme Court invalidated any statute on the grounds of excessive delegation of legislative authority. The Supreme Court in fact has only found two statues to be a violation of the non-delegation doctrine, neither of which are comparable to the statute at issue here. Accordingly, the Court must dismiss Plaintiffs’ Fifth Cause of Action.

Indigenous Law & Policy Center Fellow Job Announcement

Matthew L.M. Fletcher

The Indigenous Law & Policy Center welcomes applications for the 2016–2017 Fellow position.

Position Summary

The ILPC Fellowship is a flexible position that offers one new law grad each year the chance to work in a setting that is both academic and clinical in nature. Depending on the particular interests of the Fellow, there may be more time spent developing academic articles, researching and writing briefs, interacting with students and legal professionals, or attending conferences centered on Indian law.

Duties and Responsibilities

The following duties and responsibilities are an approximate list of the duties and responsibilities of past Fellows. The Fellow chosen will have the opportunity to spend more time in areas that interest them, but may have to complete additional duties as required by the ILPC.

  1. Maintain a weekly study skills and community-building meeting with 1L students interested in the Indigenous Law & Policy Certificate.
  2. Co-teach the Indian Law Clinic class and the NNALSA Moot Court class.
  3. Act in a staff attorney capacity, researching and writing on problems of federal Indian law as they arise, especially in the ICWA Appellate Project of the Indian Law Clinic.
  4. Assist with the preparation of party and amicus briefs handled by the ILPC.
  5. Publish or work towards publishing a scholarly article, white paper, or working paper based on independent research.
  6. Help with the organization and facilitation of the annual ILPC conference.

Qualifications

  1. Recent graduate of an ABA accredited law school.
  2. Taken a course or have experience in Federal Indian Law.
  3. Commitment and availability to hold the Fellow position from July 2016–June 2017, as well as a willingness to travel occasionally to conferences.
  4. Bar passage is not required, but Fellows are encouraged to take the bar exam.

Compensation

$42,099, plus Michigan State University College of Law full time staff benefits.

Application Requirements

Please submit a cover letter outlining your interest and personal goals, a current resume and writing sample, and two references to Sarah Donnelly at donnel93@law.msu.edu via PDF attachment by May 1, 2016.

New Scholarship on the Burt Lake Burn-Out

Matthew L.M. Fletcher2 Comments

Richard Wiles has published “A Bitter Memory: Seeking Maamaw Gwayak (Social Justice) at Burt Lake” in the Michigan Historical Review.

The BURN OUT’S Bitter Memory

Mr. Wiles has also published a two-part article in the Mackinac Journal on northern Michigan Indians:

MacChebHist art-No 1

MAC-ChebHis-part 2-B

Fletcher Commentary on Dollar General in the Yale Law Journal Forum

Matthew L.M. Fletcher1 Comment

Here is “Contract and (Tribal) Jurisdiction.” (PDF)

Excerpts:

Consider two commercial contracts. The first requires customers to waive their rights to bring class actions against large businesses in favor of private arbitration. The second requires a reservation leaseholder to adjudicate disputes in tribal court. Both contracts require dispute resolution in fora over which the Supreme Court does not exercise supervisory jurisdiction. Both arbitration and tribal courts are favored by acts of Congress.1 Both contracts are hotly contested in the Supreme Court. But the arbitration clause contract has been affirmed in a series of recent decisions.2 The tribal court contract, by contrast, is pending before the Court in Dollar General Corp. v. Mississippi Band of Choctaw Indians.3 Ironically, while the more conservative Justices signed on to the arbitration clause decisions, these same Justices may be Dollar General’s best bets for escaping tribal jurisdiction. This short Essay details the key arguments in Dollar General and argues that to undo the tribal contract would unnecessarily and unconstitutionally undo the right to contract for Indian nations.

And:

Justice Scalia’s death may mean a 4-4 tie in the Dollar General case. Justice Scalia was in the majority in the most recent tribal civil jurisdiction dispute, Plains Commerce Bank v. Long Family Land & Cattle Co.,32 decided by a 5-4 vote, split along the traditional conservative-liberal voting pattern. In Plains Commerce, Justice Scalia asked a nonmember company that had not specified jurisdiction in its commercial agreement with a tribal member-owned business: “[Y]our client could have obtained that certainly [sic] by inserting a choice of law provision providing that any disputes would be resolved somewhere else, couldn’t it?”33 The answer in that case from the nonmember? “I think that in the face of silence in the contract, the general rule [against tribal jurisdiction] controls rather than its exceptions.”34 There is a choice of law provision in Dollar General, negotiated at arm’s length by sophisticated business entities, and it points to tribal court jurisdiction.35

 

Harvard Law Review Developments in the Law Issue on Indian Law

Matthew L.M. Fletcher

Here:

Introduction

The Double Life of International Law: Indigenous Peoples and Extractive Industries

Securing Indian Voting Rights

ICRA Reconsidered: New Interpretations of Familiar Rights

Fresh Pursuit from Indian Country: Tribal Authority to Pursue Suspects onto State Land

Tribal Executive Branches: A Path to Tribal Constitutional Reform

Ann Tweedy Review of Carpenter & Riley’s “Owning Red”

Matthew L.M. Fletcher

Ann Tweedy has reviewed Kristen Carpenter and Angela Riley’s article, “Owning Red: A Theory of (Cultural) Appropriation,” forthcoming in the Texas Law Review, for JOTWELL.

An excerpt:

In a number of recent controversies, from sports teams’ use of Indian mascots to the federal government’s desecration of sacred sites, American Indians have lodged charges of “cultural appropriation” or the unauthorized use by members of one group the cultural expressions and resources of another. While these and other incidents are currently in the headlines, American Indians often experience these claims within an historical and continuing experience of dispossession. For hundreds of years, the U.S. legal system has sanctioned the taking and destruction of Indian lands and artifacts, bodies and religions, identities and beliefs, all toward the project of conquest and colonization. Indian resources have been devalued by the law and made available for non-Indians to use of their own purposes. Seeking redresses for the losses caused by these actions, tribes have brought claims under a variety of laws, from trademark and copyright, to the First Amendment and Fifth Amendment, and some have been more successful than others. As a matter of property law, courts have compensated – albeit incompletely – the taking of certain Indian lands and has also come to recognize tribal interests in human remains, gravesites, and associated artifacts. When it comes to intangible property, however, the situation is more complicated. It is difficult for legal decision-makers and scholars alike to understand why Indian tribes should be able to regulate the use of Indian names, symbols, and expressions. Indeed, non-Indians often claim interests, sounding in free speech and the public domain, in the very same resources. To advance understanding of this contested area of law, this Article situates intangible cultural property claims in a larger history of the legal dispossession of Indian property – a phenomenon we call “Indian appropriation.” It then evaluates these claims vis à vis prevailing legal doctrine, and offers a normative view of solutions, both legal and extralegal.

 

Gabe Galanda on NIGC Per Capita “Deregulation” and Disenrollment

Matthew L.M. Fletcher

Gabe Galanda has published, “The Reluctant Watchdog – How National Indian Gaming Commission Inaction Helps Tribes Disenroll Members for Profit and Jeopardizes Indian Gaming as We Know It,” in Gaming Law Review & Economics. An excerpt:

Disenrollment tied to gaming per capita payments is now epidemic. Indeed, the Ninth Circuit Court of Appeals took occasion to remark that the corresponding proliferation of disenrollment controversy results from ‘‘the advent of Indian gaming, the revenues from which are distributed among tribal members.’’ Yet in the face of very public gaming per capita abuses, the National Indian Gaming Commission (NIGC or ‘‘Commission’’) has for the last several years refused to enforce IGRA to deter or remedy those abuses.

The result of the NIGC’s de facto deregulation of the misuse of gaming per capita payments is the belief among some tribal leaders, aided by tribal lawyers, that they are free to convert tribal citizenships into profit and political gain. The NIGC’s failure to intervene despite both its statutory mandate to eradicate corrupting influences from the Indian gaming space, and its trust fiduciary responsibility to serve and protect all American Indians is woeful, and threatens the tribal gaming industry at large.