Scholarship

Angela Riley & Kristen Carpenter on a Theory of Indian Cultural Appropriation

Matthew L.M. Fletcher1 Comment

Angela Riley and Kristen Carpenter have posted “Owning Red: A Theory of Indian (Cultural) Appropriation,” forthcoming in the Texas Law Review, on SSRN.

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 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.

Highly, highly recommended! I had a chance to review a draft of this paper and Profs. Riley and Carpenter are changing the way Indian law scholars and property law scholars think about cultural property. A terrific contribution.

Elizabeth Kronk Warner on Enforcing Tribal Treaty Provisions to Protect Climate Change Threatened Resources

Matthew L.M. Fletcher

Elizabeth Kronk Warner has posted “Everything Old is New Again: Enforcing Tribal Treaty Provisions to Protect Climate Change Threatened Resources” on SSRN.

Kirkus Review of Sarah Deer’s New Book on Rape and Colonialism

Ann Tweedy

Here.  Kirkus calls the book “[a]n incisive and imperative academic study.”  Congrats to Professor Deer!

Reminder: AALS Indian Nations & Indigenous Peoples Call for Papers on Same-Sex Marriage & LGBT Families

Ann Tweedy

The deadline is coming up 9/1. Please submit if you have a qualifying research project and also feel free to share widely:

The Indian Nations and Indigenous Peoples Section of the American Association of Law Schools (AALS) invites paper proposals on the following topic. How do Indian Tribes, First Nations, and other Indigenous Peoples regulate same-sex marriage, same-sex relationships, and adoption and foster parenting by same-sex couples and LGBT individuals? What role does evidence of Tribal culture and tradition, if any, play in these decisions? Additionally, what are the processes by which Tribes change their laws with respect to same-sex relationships? More broadly, we are interested in the ways in which Tribes, First Nations and other Indigenous Peoples regulate sexuality and family structure.

Please send proposals of 500 to 1000 words summarizing a paper or work-in-progress you would present on an AALS panel on these issues. The selected panelists will be invited to present their work in a joint program of the Indian Nations and Indigenous Peoples and the Law and Anthropology Section, which will be co-sponsored by the Family Law Section. The Program will be held at the AALS Annual Meeting, January 6-10, 2016. Selected papers will be published in the William Mitchell Law Review. Please submit your proposal on or before September 1, 2015 to Michalyn Steele, Chair-Elect, at steelem@law.byu.edu. Questions can also be directed to Ann Tweedy, Chair.

New Scholarship on the Economic Impact of IGRA

Matthew L.M. Fletcher

Randall K. Q. Akee, Katherine A. Spilde, and Jonathan B. Taylor have published “The Indian Gaming Regulatory Act and Its Effects on American Indian Economic Development” in the Journal of Economic Perspectives.

Here is the abstract:

The Indian Gaming Regulatory Act (IGRA), passed by the US Congress in 1988, was a watershed in the history of policymaking directed toward reservation-resident American Indians. IGRA set the stage for tribal government-owned gaming facilities. It also shaped how this new industry would develop and how tribal governments would invest gaming revenues. Since then, Indian gaming has approached commercial, state-licensed gaming in total revenues. Gaming operations have had a far-reaching and transformative effect on American Indian reservations and their economies. Specifically, Indian gaming has allowed marked improvements in several important dimensions of reservation life. For the first time, some tribal governments have moved to fiscal independence. Native nations have invested gaming revenues in their economies and societies, often with dramatic effect.

PDF.

Michael Blumm on Federal Reserved Water Rights

Matthew L.M. Fletcher

Michael C. Blumm has posted “Reserved Water Rights as a Rule of Law” on SSRN. Here is the abstract:

The reserved water rights doctrine is — and always has been — a controversial doctrine in Western water law circles because it provides a federal trump over state systems of water allocation. First articulated by the U.S. Supreme Court over a century ago, states and their water rights holders have always resisted implementation of federal water rights because the federal government and its trustee Indian tribes often have different water priorities than the states, long committed to diversionary rights largely for irrigated agriculture.

In Idaho, opposition to federal water rights largely succeeded in defeating water for wilderness, national forests, national recreational areas, and other federal conservation lands in the decisions by state courts in the massive Snake River Basin Adjudication (SRBA). Now, in an Idaho Law Review article, two advocates for state water rights who helped defeat federal water rights in the SRBA proffer a theory that, if accepted by other Western states, would export their Idaho victories.

This response to their effort explains why their theory is flawed and should be rejected by Western state courts. Their argument was in fact not adopted by the Idaho Supreme Court, which employed other reasoning for rejecting federal reserved water rights. This essay maintains that, although Congress certainly has the power either to affirm or reject water rights for federal lands, the idea that water rights may be lost by mere congressional discussion of the doctrine followed by a decision not to take action cannot be interpreted as a rejection of a legal doctrine over a century old. There is no support for interpreting congressional inaction to reverse a long settled legal doctrine like federal reserved water rights — and the costs imposed on federal interests, especially in terms of instream flows, would be significant.

Alex Skibine on Federal Control over Tribal Property and The New Equal Protection

Matthew L.M. Fletcher1 Comment

Alex Tallchief Skibine has published “Using the New Equal Protection to Challenge Federal Control over Tribal Lands” in the Public Land and Resources Law Review.

Here is an excerpt of the conclusion of the article:

Indian tribes and their members are probably the only people who are subject to federal restrictions on the management of their own lands because of their status. While the law prevented Indians from successfully challenging these restrictions on equal protection grounds, recent development in equal protection jurisprudence has opened new possibilities. This article [argues] that while congressional restrictions imposed on Indians pursuant to the Indian Commerce Clause do not create racial classifications, these laws can be successfully challenged on equal protection grounds alleging that they were either enacted pursuant to unconstitutional animus or are not rationally tied to the true congressional purpose behind the legislation.

Sac & Fox 14th Annual Native Nations Law Symposium

Kate Fort3 Comments

Here.

The Sac and Fox Nation of Missouri in Kansas and Nebraska is proud to present the 14th annual Native Nations Law Symposium. The Symposium seeks to promote relations and education of important legal topics among all legal professionals both Tribal and State. Please see attached document for a copy of the tentative schedule (speakers may be subject to change).

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!