Scholarship

Report by Center for the Study of Social Policy–Child Welfare Policy Strategies to Improve Outcomes for Children of Color

Kate Fort1 Comment

Here.

Nationally, families of color – particularly African
American and American Indian and Alaska Native (AI/AN) – are over-represented in child welfare systems. These families also tend to have worse outcomes – such as children more likely to be removed from their homes, less likely to receive family preservation services, and in the case of African American children, experiencing longer stays in foster care. Public policy can play an important role in reducing these disparities and
improving outcomes for children and families of color. This report highlights policy strategies that have shown promise in improving outcomes for children and families of color in child welfare
systems.

Bob Anderson on Water Rights, Water Quality, and Regulatory Jurisdiction in Indian Country

Matthew L.M. Fletcher

Robert T. Anderson has posted his paper, “Water Rights, Water Quality, and Regulatory Jurisdiction in Indian Country,” forthcoming in the Stanford Environmental Law Journal, on SSRN.

The abstract:

In the seminal Indian water rights case, Winters v. United States (1908), the Court posed this question: “The Indians had command of the lands and the waters—command of all their beneficial use, whether kept for hunting, ‘and grazing roving herds of stock,’ or turned to agriculture and the arts of civilization. Did they give up all this?” The Court’s answer was no, and since then a large body of law has developed around Indian water rights, although the primary focus has been on the amount of water reserved for various tribal purposes. While Indian nations use property rights theories to protect their water resources from loss to non-Indian use, they also deploy their inherent governmental authority through tribal water codes and the federal Clean Water Act to protect water quality. As competition for water resources grows and development pressures adversely affect water quality, Indian Nations and their neighbors face new challenges in defining Indian water rights for instream habitat protection and traditional consumptive uses.

This article reviews the nature of Indian water rights—both on and off reservations—and the use of tribal sovereignty to protect those rights in terms of quantity and quality. The case law in this arena is sparse, and the ability to predict an all-or-nothing litigated outcome is correspondingly limited. Under these circumstances, parties would be best off to default to the usual presumptions recognizing inherent tribal authority over on-reservation water resources and state authority outside of Indian country. From this jurisdictional baseline, tribes, states and the United States should cooperate to ensure that a given regulatory regime protects water quality and access to water.

Highly recommended!

Kirsten Carlson on Congress, Tribal Recognition, and Legislative-Administrative Multiplicity

Matthew L.M. Fletcher

Kirsten Matoy Carlson has posted her paper, “Congress, Tribal Recognition, and Legislative-Administrative Multiplicity,” on SSRN.

Here is the abstract:

For over thirty years, tribal leaders, state officials, members of Congress, and scholars have decried the process by which the United States recognizes Indian tribes. Most accounts have focused exclusively on the administrative process, omitting Congress from their analyses and suggesting that Congress plays a minor role in tribal recognition. The widely-accepted proposition that Congress has relinquished control over recognition is a testable hypothesis. This article tests this proposition empirically. The results call into question the dominant narrative about the congressional role in federal recognition and show that it is just plain wrong. In addition to debunking prevailing misconceptions, the data exposes an intriguing puzzle — a more complicated tale of legislative-administrative multiplicity. Federal recognition is not a uniform administrative process. Instead, parallel legislative and administrative processes exist and often intersect in complex ways. This discovery is an important first step towards understanding these dual processes and their implications for federal Indian law and understandings of legislative-administrative relationships more generally.

Highly recommended.

 

Indian Law Articles from Montana Law Review Symposium on Cooperative Federalism

Matthew L.M. Fletcher

Here:

Winter 2015, Volume 76, Issue 1

New Scholarship on Protecting Indian Women

Matthew L.M. Fletcher

The University of Pennsylvania Journal of International Law has published “Too Many Gaps, Too Many Fallen Victims: Protecting American Indian Women from Violence on Tribal Lands.”

 

 

NAISA Panel on “Dangerous Intimacies”

Ann Tweedy

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This was an extremely interesting panel held Saturday afternoon on LGBT issues and Ecoerotics in Native communities and oral history. At the podium is Melissa K. Nelson from SFSU, and left to right are moderator and discussant Mishuana Goeman from UCLA, Jennifer Denetdale from UNM, and Mark Rifkin from UNC Greensboro.

Larry Nesper on Tribal-State Court Jurisdiction in Wisconsin

Matthew L.M. Fletcher

Larry Nesper has published “Ordering Legal Plurality: Allocating Jurisdiction in State and Tribal Courts in Wisconsin” in PoLar: Political and Legal Anthropology Review.

Here is the abstract:

This article examines how a Wisconsin statute passed in 2009 that authorized state court judges to transfer cases to American Indian tribal courts unfolded as a political and legal process that was both informed by and produced by fundamental conceptions of cultural difference. It calls specific attention to jurisprudential differences in the form of jury trials and peacemaking in figuring the differences between conceptions of tribal membership and state citizenship.

Tribes and Same-Sex Marriage in Columbia Human Rights Law Review

Ann Tweedy1 Comment

My article on tribal laws relating to same-sex marriage has just been published in Columbia Human Rights Law Review. It delves into the twelve tribal laws that allow same-sex marriage and also looks at tribal DOMAs, tribal domestic partnership laws, and other tribal laws that bear on same-sex marriage. Finally, it addresses the somewhat limited effects Windsor and the future Supreme Court decision in Obergefell are likely to have on tribal DOMAs.

Thanks to everyone who provided information on tribal laws. I couldn’t have done it without you!

American Indian Law Journal Spring 2015

Kate Fort

Here.

It includes an article from MSU College of Law (very recent) alum, Brian Zark, who wrote it as a capstone paper for his IP program work. Congratulations!

All of our student and alum publications are available here.

New Study on American Indian School-To-Prison Pipeline Problem in Utah

Matthew L.M. Fletcher

Here is “Disparities in Discipline: A Look at School Disciplinary Actions for Utah’s American Indian Students.”

The abstract:

A number of recent studies and reports have examined the school-to-prison pipeline (STPP) and its impact on students of color. Few, if any, of these documents have focused on the troubling and undeniable effects of the pipeline on American Indian students. Nationally, 22% of all American Indian students receive disciplinary action at school, compared to 14.1% of all white students.1 In Utah, these students are almost four times (3.8) more likely to receive a school disciplinary action compared to their white counterparts.