Scholarship

2015 Top SSRN Papers in American Indian Law

Matthew L.M. Fletcher

It was a great year for American Indian law scholarship. Indian law scholars placed papers at Texas, UCLA, Indiana, Cardozo, North Dakota, Pepperdine, Mississippi, and many other general law reviews, as well as numerous specialized reviews.

Here are the top American Indian law papers from 2015 (January until now):

 

1.Owning Red: A Theory of Indian (Cultural) Appropriation
Forthcoming Texas Law Review (2016)
Angela Riley and Kristen A. Carpenter
University of California, Los Angeles (UCLA) and University of Colorado Law School
Date Posted: September 04, 2015
Last Revised: October 08, 2015
Accepted Paper Series
216 downloads

 

2. Water Rights, Water Quality, and Regulatory Jurisdiction in Indian Country
Stanford Environmental Law Journal, Vol. 34, No. 2, pp. 195-245 (2015), University of Washington School of Law Research Paper No. 2015-21
Robert T. Anderson
University of Washington School of Law
Date Posted: June 27, 2015
Last Revised: October 15, 2015
Accepted Paper Series
201 downloads

3. Guarding Against Exploitation: Protecting Indigenous Knowledge in the Age of Climate Change
Joseph Brewer II and Elizabeth Ann Kronk Warner
University of Kansas and University of Kansas – School of Law
Date Posted: February 22, 2015
Working Paper Series
201 downloads

4. Consultation or Consent: The United States Duty to Confer with American Indian Governments
North Dakota Law Review, Vol. 91, 2015, Forthcoming
Robert J. Miller
Arizona State University (ASU) – Sandra Day O’Connor College of Law
Date Posted: September 29, 2015
Accepted Paper Series
176 downloads

5. Birthright Citizenship on Trial: Elk v. Wilkins and United States v. Wong Kim Ark
Cardozo Law Review, Forthcoming
Bethany Berger
University of Connecticut School of Law
Date Posted: June 01, 2015
Last Revised: October 17, 2015
Accepted Paper Series
168 downloads

6. Plenary Power, Political Questions, and Sovereignty in Indian Affairs
UCLA Law Review, Forthcoming, BYU Law Research Paper No. 15-06
Michalyn Steele
Brigham Young University- J. Reuben Clark Law School
Date Posted: February 15, 2015
Last Revised: July 28, 2015
Accepted Paper Series
145 downloads

7. Justice for All: An Indigenous Community-Based Approach to Restorative Justice in Alaska
Northern Review 38 (2014): 239-268
Brian Jarrett and Polly E. Hyslop
Program on Dispute Resolution – University of Alaska and University of Alaska Fairbanks
Date Posted: March 04, 2015
Accepted Paper Series
140 downloads

8. Federal Reserved Water Rights as a Rule of Law
Idaho Law Review, 2015, Lewis & Clark Law School Legal Studies Research Paper No. 2015-13
Michael C. Blumm
Lewis & Clark Law School
Date Posted: July 26, 2015
Last Revised: September 03, 2015
Accepted Paper Series
136 downloads

9. Everything Old is New Again: Enforcing Tribal Treaty Provisions to Protect Climate Change Threatened Resources
University of Kansas School of Law Working Paper
Elizabeth Ann Kronk Warner
University of Kansas – School of Law
Date Posted: August 30, 2015
Last Revised: October 09, 2015
Working Paper Series
131 downloads

10. Personal Jurisdiction and Tribal Courts after Walden and Bauman: The Inadvertent Impact of Supreme Court Jurisdictional Decisions on Indian Country
Grant Christensen
University of North Dakota – School of Law
Date Posted: September 29, 2015
Working Paper Series
121 downloads

And here are several other papers that did not meet this completely arbitrary cutoff: Continue reading →

Judith Royster on Treaty Rights and Tribal Civil Jurisdiction

Matthew L.M. Fletcher

Judith Royster has posted “Revisiting Montana: Indian Treaty Rights and Tribal Authority Over Nonmembers on Trust Lands,” published in the Arizona Law Review. PDF SSRN

Here is the abstract:

In a series of cases beginning with its 1981 decision in Montana v. United States, the U.S. Supreme Court has diminished the civil authority of Indian tribal governments over nonmembers within the tribes’ territories. Initially, the Court confined itself to hobbling tribes’ inherent sovereign authority over non-tribal members only on non-Indian (“fee”) lands within reservations. In 2001, however, the Court ruled for the first time that a tribe did not possess inherent jurisdiction over a lawsuit against state officers that arose on Indian (“trust”) lands. What that decision, Nevada v. Hicks, means for general tribal authority over nonmembers on Indian lands is not clear, however, and lower federal courts are struggling to interpret it. The primary issue is whether Hicksintended the Montana approach to extend to all nonmembers on trust lands or whether the decision in Hicks is confined to its particular set of facts. That uncertainty could lead to further inroads on the inherent sovereign authority of tribes.

The Court in Montana, however, recognized a second approach to tribal authority over nonmembers on trust land: the tribal treaty right of use and occupation. Although the Court held that those treaty rights are extinguished on fee lands, it agreed that the rights survive on trust lands. This Article argues that the treaty rights argument—that Indian tribes have rights to govern nonmembers on trust lands recognized by treaty and treaty-equivalent—must be resurrected. If inherent tribal authority over nonmembers on trust lands is under increasing judicial attack, tribes may assert their treaty right to govern as a path to ensure their sovereignty on Indian lands.

A Native American Parent Confronts a Pervasive NFL Slur

Aside Sarah M Donnelly

Link to Education Week article by Jared Hautamaki here.

Excerpt:

The interim superintendent of the Montgomery County district responded to me. He said that in a large, diverse school district, not everyone is going to like what they see. He said that given the system’s values of equity and respect and students’ right of free expression, district officials would continue to monitor the impact and respond to the issue by benchmarking their actions against those of other Washington-area school districts. He hoped I would continue to collaborate with my son’s principal and still be “respectful and kind.” He didn’t address the academic research that I had shared. He didn’t address the comments of the district spokesman, who said the board addresses complaints like mine on a school-by-school basis. He didn’t address the dress code. He didn’t address the offensiveness of the name. But, he also didn’t use the name itself.

…

In the Washington region, the Bureau of Indian Affairs, the U.S. Department of the Interior, the U.S. Senate Committee on Indian Affairs, the Indian Health Service, tribal lobby offices, and tribal law firms all employ a steady number of Native Americans who leave their tribal homes and uproot their families to serve their communities and their two nations—their tribe and the United States government. Native American student enrollment in the Montgomery County schools is around 280 students. The fact that we are a minority among minorities in the region is not an excuse for ignoring our children’s rights to an education environment free of racist imagery and discrimination.

At the Supreme Court: Contentious Questions of Tribal Jurisdiction in Dollar General v. Choctaw Nation of Miss.

Sarah M Donnelly

Link to Stanford Law article here.

Excerpt:

Let me give you an important example from this case, based on what Dollar General seems to think is its strongest historical argument. The company relies heavily on a couple of treaties with two Native nations in what is today Oklahoma—treaties that seem to strip civil jurisdiction over non-Natives from those tribes in particular. But those treaties are hardly representative of the history of even those two tribes, let alone all the histories of all of the over five hundred different federally recognized tribes. Soon after the handful of treaties referenced by Dollar General, the federal government began contemplating an Indian state in what was then Indian Territory, so it entered new treaties that explicitly granted this new Native government civil jurisdiction over non-members. Later in that century, Congress reversed course and, in creating the state of Oklahoma, abolished tribal courts there altogether. But only thirty years after that, in the 1930s, Congress changed policy again, and passed a law that permitted the re-establishment of tribal courts in Oklahoma. And this is just two Native nations over a span of eighty years. This single example, I think, suggests some of the challenges: we simply can’t distill centuries of change and contradiction into a single, unambiguous narrative.

Alex Pearl: “Paint Chip Indians”

Matthew L.M. Fletcher

Alexander Pearl has published “Paint Chip Indians” in UNBOUND: the Harvard Journal of the Legal Left.

Penn. Law Review Note on the Constitutionality of VAWA’s Tribal Jurisdiction Provisions

Matthew L.M. Fletcher

Here is “Special Domestic Violence Criminal Jurisdiction For Indian Tribes: Inherent Tribal Sovereignty Versus Defendants’ Complete Constitutional Rights.”

The abstract:

Special domestic violence criminal jurisdiction for Indian tribes took effect nationally on March 7, 2015, and it was a historic moment for the tribes. Ever since the Supreme Court’s 1978 decision in Oliphant v. Suquamish Indian Tribe, tribes had been powerless to exercise criminal jurisdiction over non‐Indian defendants. Because the Court held that “Indian tribes do not have inherent jurisdiction to try and punish non‐Indians,” an unfortunate gap in enforcement resulted: for crimes committed in Indian country, where states’ criminal jurisdiction is limited and where the federal government lacks the resources to prosecute crimes effectively, non‐Indian offenders regularly escaped prosecution. This problem was particularly disturbing in the context of domestic violence and related crimes. For example, sixty‐seven percent of the sexual abuse and related offenses committed in Indian country and charged in fiscal years 2005–2009 were left unprosecuted by the federal government.

Enter VAWA 2013 and special domestic violence criminal jurisdiction for Indian tribes. Recognizing that “much of the violence against Indian women is perpetrated by non‐Indian men” who “regularly go unpunished,” Congress intended special domestic violence criminal jurisdiction to fill the prosecutorial enforcement gap for domestic violence offenses. Codified at 13 U.S.C. § 1304, the new provisions recognize tribes’ “inherent power . . . to exercise special domestic violence criminal jurisdiction over all persons”—including non‐Indians.

Although tribes and their advocates have celebrated VAWA 2013’s partial override of the Oliphantdecision, special domestic violence criminal jurisdiction has yet to withstand constitutional scrutiny at the Supreme Court. In the debates before VAWA 2013’s passage, tribal jurisdiction over non‐Indians sparked controversy because legislators and commentators understood that non‐Indian defendants prosecuted and tried in tribal court would not receive the full protection of the federal Constitution. This constitutional question—whether the Constitution applies in full force in prosecutions brought under special domestic violence criminal jurisdiction—turns on whether the expanded tribal jurisdiction is an exercise of “inherent” tribal sovereignty or delegated federal authority. If the new jurisdiction is an exercise of inherent tribal sovereignty, then tribes are not obligated to provide non‐Indian defendants with the full protection of the federal Constitution. But if the new jurisdiction is delegated federal authority, then non‐Indian defendants would be entitled to the full panoply of rights under the federal Constitution—including, potentially, the right to an Article III judge appointed by the President and confirmed by the Senate under Article II of the Constitution. The bounds of inherent tribal sovereignty could thus determine whether special domestic violence criminal jurisdiction lives or dies.

This Comment begins in Part I by outlining the history of tribal criminal jurisdiction in Indian country, with a focus on the law most relevant to analyzing the bounds of tribes’ inherent sovereignty to adjudicate crimes over non‐Indians. Part II explains VAWA 2013’s special domestic violence criminal jurisdiction in more detail and summarizes how it has been implemented since the statute’s enactment. Part III discusses the arguments for and against finding that tribes have inherent tribal sovereignty to exercise special domestic violence criminal jurisdiction, and why the outcome matters for both tribes and non‐Indian defendants. Part IV takes an aside to note the lurking influence of the congressional plenary power doctrine, which gives Congress broad authority to legislate in the realm of Indian affairs. And Part V outlines how courts’ ultimate rulings (and their underlying reasoning) would affect special domestic violence criminal jurisdiction’s future. The Conclusion addresses the underlying questions: What are the bounds of tribes’ inherent sovereignty? From what does that sovereignty derive? The answer will affect not just special domestic violence criminal jurisdiction under VAWA 2013, but also possible future expansions of tribal criminal jurisdiction by Congress.

New in the Turtle Talk Bookshelf — Sarah Deer’s “The Beginning and End of Rape: Confronting Sexual Violence in Native America”

Matthew L.M. Fletcher

Highly, highly recommended.

Here is the website.

Sarah Deer Book

Here is the blurb:

How to address widespread violence against Native women—practically, theoretically, and legally—from the foremost advocate for understanding and change

The Beginning and End of Rape makes available the powerful writings in which Sarah Deer, who played a crucial role in the reauthorization of the Violence Against Women Act in 2013, has advocated for cultural and legal reforms to protect Native women from endemic sexual violence and abuse. These essays point to the possibility of actual and positive change in a world where Native women are systematically undervalued, left unprotected, and hurt.

Fletcher on the Growing Market for Indian Lawyering

Matthew L.M. Fletcher

From the Tribal College Journal, “The Growing Market for Indian Lawyering,” posted on SSRN.

Tribal College Journal Feature Stories on Federal Indian Law

Matthew L.M. Fletcher

Here (unfortunately behind a paywall):

The Growing Market for Indian Lawyering
By Matthew L.M. Fletcher
American Indians are sorely underrepresented in the legal profession. But there is a greater need for more Native attorneys now than ever. By offering lay advocate, paralegal, or pre-law programs, TCUs can make a major difference. TCJ PAID CONTENT

Producing a Tribal Citizenry Literate in Law and Jurisprudence
By Stephen Wall
As the most legislated people in America, tribal citizens can benefit immensely from a legal education offered from a critical and culturally specific perspective. And tribal colleges are ideally suited for the task. TCJ PAID CONTENT

Teaching Indian Law and Creating Agents of Change
By Christopher M. Harrington
Teaching tribal college students about Indian law and policy can be an emotional and challenging endeavor. The process, however, can galvanize and empower them to work for change in their own communities and in Indian Country as a whole. TCJ PAID CONTENT

Designing and Teaching an Introduction to Federal Indian Law
By Wynema Morris
There are a variety of factors that should be considered when designing the curriculum for a course on Indian law. Students should learn to read for content, interpret legal language and symbols, and gain an understanding of who makes, implements, and interprets the law. TCJ PAID CONTENT

Looking Forward to John Low’s Book “Imprints: The Pokagon Band of Potawatomi Indians and the City of Chicago”

Matthew L.M. Fletcher

Here is John’s new blog. And the MSU Press site.

low_imprints_final-e1446531142341

The description:

The Pokagon Band of Potawatomi Indians has been a part of Chicago since its founding. In very public expressions of indigeneity, they have refused to hide in plain sight or assimilate. Instead, throughout the city’s history, the Pokagon Potawatomi Indians have openly and aggressively expressed their refusal to be marginalized or forgotten—and in doing so, they have contributed to the fabric and history of the city.

Imprints: The Pokagon Band of Potawatomi Indians and the City of Chicago examines the ways some Pokagon Potawatomi tribal members have maintained a distinct Native identity, their rejection of assimilation into the mainstream, and their desire for inclusion in the larger contemporary society without forfeiting their “Indianness.” Mindful that contact is never a one-way street, Low also examines the ways in which experiences in Chicago have influenced the Pokagon Potawatomi. Imprints continues the recent scholarship on the urban Indian experience before as well as after World War II.