Scholarship

Jessica Shoemaker on Emulsified Property in Indian Country

Matthew L.M. Fletcher1 Comment

Jessica Shoemaker has posted “Emulsified Property,” forthcoming in the Pepperdine Law Review.

Here is the abstract:

The typical American Indian reservation is often described as a “checkerboard” of different real property ownership forms. Individual parcels of reservation land may be held in either a special federal Indian trust status or in fee, by either Indian or non-Indian owners. The rights and responsibilities of trust owners are set by federal and tribal law, while fee owners are subject to state or tribal law. Many scholars have analyzed the challenges created by this checkerboard pattern of property and jurisdiction. This article, however, reveals an even more complicated issue that has thus far gone unaddressed in the literature. This article analyzes for the first time how the modern reservation is not merely a checkerboard of fee and trust parcels situated next to each other. Rather, significant numbers of reservation lands are now jointly owned by co-owners who hold undivided interests in the same property in different tenure types. Thus, many individual tracts now contain a mix of trust and fee ownership interests in the same resource.

These “emulsified” properties are made up of theoretically undivided co-ownership interests; however, the fee and trust co-owners have very different rights to the same property, including vastly different use and possession rights. There is no single over-arching set of legal rules that applies equally to all interests in emulsified properties, nor any single dispute resolution tribunal through which co-owners can negotiate a fair and efficient use of the resource. This article explores for the first time how these emulsified properties are created and analyzes the unique obstacles they create for landowners and for governance. While others have argued for a refocus on tribal property regimes in order to support tribal sovereignty more generally, this emulsified property problem tips the scales and makes more robust tribal property systems, with clear authority to govern all interests in emulsified properties, a critical next step.

Ann Tweedy on Tribal Gun Regulation

Matthew L.M. Fletcher

Ann Tweedy has published “Indian Tribes and Gun Regulation: Should Tribes Exercise Their Sovereign Rights to Enact Gun Bans or Stand-Your Ground Laws?” (SSRN) in the Albany Law Review.

Abstract:

This essay examines tribal laws relating to guns. It then discusses whether tribes whose values accord with either gun bans or stand-your-ground laws would be well-served to enact such laws. It concludes that enforcement difficulties and related problems make both types of laws very costly and that tribes are likely to be best served by enacting more modest firearm regulations and/or protecting the right to bear arms (without expanding the right to self-defense). The essay also concludes that the risks tribes face in the area of firearms regulation in particular contravene Congress’ intent in enacting the Indian Civil Rights Act.

Florida Law Review: Prof. Atwood’s Response to Prof. Berger’s Adoptive Couple Article

ilpc

Prof. Berger’s article here.

Prof. Atwood’s response here.

Professor Berger, however, does not address another danger inherent in the Court’s § 1915 holding. If applied to involuntary child welfare proceedings, the holding threatens to seriously undermine the effectiveness of ICWA. In a recent decision from the Alaska Supreme Court, the risks inherent in Adoptive Couple’s broad § 1915 holding were demonstrated. In Native Village of Tununak v. State Department of Health & Social Services, the court applied Justice Alito’s reasoning to a case that arose not as a private adoption but within the child welfare system. 13 The court held that the proposed adoption of a Native child by his Anglo foster parents could go forward without the necessary finding of good cause under ICWA because no other formal adoption petition had been filed.14 In that case the child’s maternal grandmother had taken only informal steps to request that she be allowed to adopt but had not filed a formal petition.15 As noted by the dissent, in rural Alaska where villages are remote and legal representation is nonexistent, the requirement that a formal adoption petition be filed may mean that potential ICWA placements will go undiscovered.16

Other articles and cases related to Adoptive Couple are available here.

Leah Jurss on Creative Remedies for Tribes Extending Civil Infraction Systems over Non-Indians

Matthew L.M. Fletcher

Our own Leah Jurss (MSU Law ’15, MSU Law Review EIC, White Earth Ojibwe) has published “Halting the Slide Down the Sovereignty Slope: Creative Remedies for Tribes Extending Civil Infraction Systems over Non-Indians” in the Rutgers Race and The Law Review.

An excerpt:

The best option for tribes is to work towards building open communications with non-Indians residing on reservations, non-Indians visiting reservations, and state and local governments surrounding reservations. These communications can help to build trust between all parties and a base of empirical evidence showing the effectiveness of tribal civil infraction systems. It is imperative that tribal jurisdiction over non-Indians not be reduced any more than it currently is to ensure the continuing success and viability of tribal nations themselves. A tribal nation that does not have the ability to protect itself from harmful outside influences via its tribal courts has little ability to ensure the safety and security of its citizens, a priority of all sovereign nations.

William Mitchell Law Review: “Environmental Justice and Tribal Environmental Regulation”

Matthew L.M. Fletcher

Here:

Environmental Justice and Tribal Environmental Regulation
Stephen V. Quesenberry, Timothy C. Seward, and Adam P. Bailey, Tribal Strategies for Protecting and Preserving Groundwater

Richard Duncan and Christiana Martenson, I Can See Clearly Now: The EPA’s Authority to Regulate Indian Country Under the Clean Air Act

Jamie Kay Ford and Erick Giles, Climate Change Adaptation in Indian Country: Tribal Regulation of Reservation Lands and Natural Resources

Philomena Kebec, REDD+: Climate Justice or a New Face of Manifest Destiny? Lessons Drawn from the Indigenous Struggle to Resist Colonization of Ojibwe Forests in the Nineteenth and Twentieth Centuries

Liza Guerra Garcia, “Free the Land”: A Call for Local Governments to Address Climate-Induced Food Insecurity in Environmental Justice Communities 

Paula Goodman Maccabee, Tribal Authority to Protect Water Resources and Reserved Rights Under Clean Water Act Section 401

Jeanette Wolfley on Enfranchising Native American Voters

Matthew L.M. Fletcher

Jeanette Wolfley has posted “You Gotta Fight for the Right to Vote: Enfranchising Native American Voters,” forthcoming in the University of Pennsylvania Journal of Constitutional Law.

Here is the abstract:

Five decades ago, the Congress passed the Voting Rights Act of 1965. Since its passage, the Voting Right Act has created the opportunity to vote for many racial and language minorities across the country, and has survived many challenges until 2013. The U.S. Supreme Court issued two decisions involving voting rights in its 2012-2013 term. On June 25, 2013, in Shelby County v. Holder, a divided Supreme Court struck down Section 4 – a key provision of the 1965 Voting Right Act (VRA) – as unconstitutional. On June 17, 2013, one week before the Shelby County decision, the Court decided another voting rights challenge. In Arizona v. Inter Tribal Council of Arizona, Inc., the Court held that the federal National Voter Registration Act of 1993 (NVRA) preempted Arizona’s requirement that voters provide proof of citizenship in order to register to vote. Certainly, this decision was not as symbolic as Shelby County, but nonetheless is significant for minority voters and voters in general. In the aftermath of Shelby County, many voting rights litigators and scholars are contemplating what the case means for the future of Black and Latino minority voting rights across the country. To date, however, scholars’ and practitioners’ reaction to and focus on the Shelby County decision has not considered or identified its impact on Indian voters or reservation residents. Accordingly, this Article seeks to fill the void by examining the Shelby County and Inter Tribal Council decisions and provides some insight and effective responses with regard to their impacts on Native American voters across Indian country.

Brian Upton on the Tribal Self-Governance Partnership at the National Bison Range

Matthew L.M. Fletcher1 Comment

Brian Upton, an MSU alum, has published “Returning to a Tribal Self-Governance Partnership at the National Bison Range Complex: Historical, Legal, and Global Perspectives” (PDF) in the Public Land & Resources Law Review.

An excerpt:

The National Bison Range (Range) is an unforgettable place for many reasons. Home to its namesake bison as well as to a variety of other wildlife, it is one of the nation’s premier wildlife refuges. Established over one hundred years ago in western Montana, it was among the first such refuges in the country—predating the present-day National Wildlife Refuge System (Refuge System) of which it is now a part. The Range is further distinguished by its location in the center of the Flathead Indian Reservation (Flathead Reservation), where the spectacular scenery includes mountain ranges in every direction. The Range bison descend largely from wild bison that had been saved by members of the Confederated Salish and Kootenai Tribes (CSKT) at a time when the animals were on the verge of extinction.

 

Stephen Cornell on Indigenous Self-Government

Matthew L.M. Fletcher1 Comment

Stephen Cornell has published “‘Wolves Have A Constitution:’ Continuities in Indigenous Self-Government” (PDF).

The abstract:

This article is about constitutionalism as an Indigenous tradition. The political idea of constitutionalism is the idea that the process of governing is itself governed by a set of foundational laws or rules. There is ample evidence that Indigenous nations in North America—and in Australia and New Zealand as well—were in this sense constitutionalists. Customary law, cultural norms, and shared protocols provided well understood guidelines for key aspects of governance by shaping both personal and collective action, the behavior of leaders, decision-making, dispute resolution, and relationships with the human, material, and spirit worlds. Today, many of these nations have governing systems imposed by outsiders. As they move to change these systems, they also are reclaiming their own constitutional traditions.

The Federal Rule Making Process

Kate Fort

Given yesterday’s announcement about the proposed ICWA rules, here is a quick and general guide to how a proposed rule becomes a part of the Code of Federal Regulations (CFR). Here is the Federal Register Tutorial: What it is and how to use it (you know you want to know the historical background of the Federal Register Act).

There is also a lot of information over at the Cornell Legal Information Institute’s Regulation Room on what federal rule making is, and what makes for effective comments.

Part 2 of Cynthia Ford’s Article on Evidence Rules in Montana Tribal Courts

Matthew L.M. Fletcher

In the March 2015 edition of the Montana Lawyer (page 18).

March_2015_Montana_Lawyer_web

Part 1 was here.