Scholarship

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.

New on the Turtle Talk Bookshelf: Frank Pommersheim’s Tribal Justice

Matthew L.M. Fletcher

Here:

Blurbs:

“Frank Pommersheim is the modern apotheosis of Ksa, Nanaboozhoo, Quetzalcotl, Athena, John Marshall, and the Buddha—all legends of judicial wisdom. Tribal Justice is a powerful culmination of his career work so far, and gives us all hope for another quarter century of his judgment, experience, and calm thoughtfulness. As the Buddha (probably) said, Pommersheim ponders from the stars and judges from the sky, yet speaks from the heart and writes for the land.” — Matthew Fletcher, Professor of Law, Michigan State University College of Law

“Every Tribal Judge should read this book. Written from the perspective of an able and seasoned Tribal Appellate Justice, it shares judicial perspective that is unique to members of the Tribal Judiciary. Justice is sacred. Native Justice is rooted in a world view that is starkly different than that of dominant society. We serve in Tribal communities but must deal with misguided federal law. This writing gives us guidance. Miigwetch, Frank!” — Michael Petoskey, Chief Judge, Pokagon Band of Potawatomi

“Professor Pommersheim’s new book […] is a soul-searching and compelling look at the importance of tribal courts of appeals in the development of a body of tribal law that is responsive both to the needs of tribal citizens, who adhere to traditional notions of justice, and the non-Indian community, with well-reasoned court decisions that lay out clear parameters for law and order in tribal communities. By examining individual cases from several different tribal communities, one of which was examined by the US Supreme Court and one which is about to be critiqued, Professor Pommersheim demonstrates himself to be an indispensable player in the advancement of tribal justice in numerous communities. Having been involved in some of the cases chronicled in the book, and having served with Professor Pommersheim on appellate courts for approximately 18 years, I have seen first-hand Professor Pommersheim’s commitment to ensuring that tribal appellate courts serve the needs of all litigants in tribal courts.” — BJ Jones, Chief Judge Sisseton-Wahpeton Oyate Tribal Court; Director Tribal Judicial Institute, University of North Dakota School of Law

“Only a poet could so seamlessly intertwine memoir, practical how-to, and grand vision in one remarkable book about law and life in Indian country. Tribal Justice is deeply compelling, taking the reader on a more than quarter-of-a-century ride through an extraordinary career devoted to tribal law and the people from which it springs.” — Angela Riley, Professor of Law, UCLA School of Law

“Professor and Justice Frank Pommersheim has once again written an inspiring book […] to be read and reread. His current writing and appellate opinions provide an essential guide to understanding tribal courts, specifically appellate courts. Justice Pommersheim’s book is a must read by all legal and judicial practioners and tribal, federal and state leaders to understand the importance of the Tribal judiciary in protecting and enhancing the sovereignty of tribal nations. Respectfully, he shares his life with Indian people in a most graceful, intellectual, and poetic manner and emphasizes that justice, freedom and equality is for all.” — Cheryl Demmert Fairbanks (Tlingit-Tsimpshian), Esq., Justice for the Inter-Tribal Court of Appeals for Nevada and White Earth Nation; Visiting Professor of Law, University of New Mexico’s Southwestern Indian Law Clinic

New Scholarship on Credit Ratings and the Availability of Credit in Indian Country

Matthew L.M. Fletcher

Valentina P. Dimitrova-Grajzl, Peter Grajzl, A. Joseph Guse, Richard M. Todd, and Michael Williams have posted “Neighborhood Racial Characteristics, Credit History, and Bankcard Credit in Indian Country.”

The abstract:

We examine whether concerns about lenders’ discrimination based on community racial characteristics can be empirically substantiated in the context of neighborhoods on and near American Indian reservations. Drawing on a large-scale dataset consisting of individual-level credit bureau records, we find that residing in a predominantly American Indian neighborhood is ceteris paribus associated with worse bankcard credit outcomes than residing in a neighborhood where the share of American Indian residents is low. While these results are consistent with the possibility of lenders’ discrimination based on community racial characteristics, we explain why our findings should not be readily interpreted as conclusive evidence thereof. We further find that consumer’s credit history is a robust and quantitatively more important predictor of bankcard credit outcomes than racial composition of the consumer’s neighborhood, and that the consumer’s location vis-à-vis a reservation exhibits no effect on bankcard credit outcomes.