Scholarship

Ann Tweedy on Tribal Gun Regulations

Matthew L.M. Fletcher

Ann Tweedy has posted “Tribes and Gun Regulation: Should Tribes Exercise Their Sovereign Rights to Enact Gun Bans or Stand-Your-Ground Laws?” on SSRN.

Here is the 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 a law law. 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.

Kyle Whyte on Food Justice and Collective Food Relations

Matthew L.M. Fletcher

Kyle Whyte has posted his paper, “Food Justice and Collective Food Relations,” on SSRN.

Here is the abstract:

Food justice is commonly understood as the norm that everyone should have access to safe, healthy and culturally-appropriate foods no matter one’s national origin, economic statuses, social identities, cultural membership, or disability. A second dimension of food justice, as commonly understood, is the norm that everyone who works within a food system, from restaurant servers to farm workers, should be paid livable and fair wages and work in safe conditions no matter one’s national origin, economic statuses, social identities, cultural membership, or disability. Another dimension of food justice, which is found in the words and writing of advocates but is perhaps less commonly appreciated, is that food justice should account for the value of food in relation to the self-determination of human groups such as urban communities of color, Indigenous peoples and migrant farmworkers, among many other groups. Reflecting on the claims of food justice advocates, my goal in this essay is to outline a norm of food justice that is based on the value of food in relation to the self-determination of human groups. In the essay, I begin by describing the first two dimensions of food justice; I then discuss the role of food in collective self-determination and introduce the idea of collective food relations, discussing in particular the role of manoomin (wild rice) in the collective self-determination of the Anishinaabek in the Great Lakes region; I then explain how disrupting collective food relations can be a form of food injustice; lastly, I discuss some specific further examples that illustrate these ideas.

New Volume of North Dakota Law Review Features Three Indian Law Papers

Matthew L.M. Fletcher1 Comment

Here:

90 N.D. L. Rev. 13
A Possible Solution to the Problem of Diminishing Tribal Sovereignty
– Hope Babcock 

Abstract:

The capacity of Indian tribal sovereignty to protect tribes from outside encroachment and interference has steadily diminished from when the concept was first enunciated in the nineteenth century in the Marshall Indian Law Trilogy. This article assumes as a working premise that only bringing tribes into the Constitution as co-equal sovereigns will end the attrition. The article examines how this might happen, either through creative interpretation of existing constitutional text or by amending the Constitution. Each of these proposals is examined to see if it empowers tribes to manage their futures more effectively, is capacious enough to include the vast majority of tribes, maintains the union’s security and stability, and has political salience. The article concludes that only the creation of a virtual nationwide election district for all members of a tribe to elect tribal representatives to Congress will meet these criteria. The author concedes that the approach is novel, but hopes it is sufficiently viable to warrant further consideration by others.

90 N.D. L. Rev. 121
In Defense of Tribal Sovereign Immunity: A Pragmatic Look at the Doctrine as a Tool for Strengthening Tribal Courts
– Ryan Seelau

Abstract:

Although the doctrine of tribal sovereign immunity was recently upheld by the Supreme Court in Michigan v. Bay Mills Indian Community,1 its existence continues to be attacked as “antiquated” and leading to “unfair” results. While most defenses of tribal sovereign immunity focus on how the doctrine is a necessary part of sovereignty or how the doctrine is necessary for financial reasons, the more pragmatic benefits of tribal sovereign immunity have remained largely overlooked. Any desire to take tribal self-determination seriously and to allow Native nations to produce their own robust and capable governing systems means re-examining the role tribal sovereign immunity plays in such efforts. This article conducts such a re-examination. First, it takes note of the extensive research indicating that strong tribal courts are generally necessary for healthy and resilient Native nations. Second, it looks at the six components that comprise strong tribal courts: (1) accountability; (2) capacity; (3) funding; (4) independence; (5) jurisdiction; and (6) legitimacy. Finally, it argues that the strategic use of tribal sovereign immunity has positive effects on all six components of strong tribal court systems. In essence, tribal sovereign immunity is a valuable tool that Native nations can use to strengthen their own courts, institutions, and nations themselves.

90 N.D. L. Rev. 191
Native Americans – Sovereign Immunity: Determining Whether the Indian Gaming Regulatory Act Abrogates Tribal Sovereign Immunity for Lawsuits Arising Outside of Indian Country
Michigan v. Bay Mills Indian Cmty, 134 S.Ct. 2024
– Mitchell G. Enright 

Abstract:

In Michigan v. Bay Mills Indian Community, the United States Supreme Court held that the Indian Gaming Regulatory Act (“IGRA”) did not implicitly or explicitly abrogate the common law doctrine of tribal sovereign immunity so as to allow a state to file a federal suit against an Indian tribe for illegal gambling activity taking place outside of Indian country. The Court reasoned that neither the text nor the legislative history of IGRA indicated a desire on the part of Congress to abrogate tribal immunity to allow for such suits; the fact that IGRA specifically addresses activities occurring inside of Indian country was dispositive to the Court that Congress chose to leave traditional state-law remedies in place when illegal gaming activity occurs outside of Indian country. The Court was also unwilling to overrule its previous decision of Kiowa Tribe of Oklahoma v. Manufacturing Technologies, Inc., which expanded the doctrine of tribal sovereign immunity to cover suits arising from contracting disputes with non-Indian businesses off-reservation. The Court’s holding in Bay Mills clarifies the doctrine of tribal sovereign immunity within the controversial context of Indian gaming. However, this will not result in any expansion of Indian gaming beyond Indian country. On the contrary, the Court’s decision makes clear that states will continue to have a number of remedies available to them to prevent Indian gaming off-reservation, just not the sort of federal suit at issue in this case.

Kate Fort & Peter Vicaire on Child Welfare and American Indian Active Duty Servicemembers and Veterans

Matthew L.M. Fletcher1 Comment

Kathryn E. Fort and Peter S. Vicaire have posted “The Invisible Families: Child Welfare and American Indian Active Duty Servicemembers and Veterans,” forthcoming in the Federal Lawyer.

The abstract:

Child welfare issues as they involve Native military families are rarely discussed. In the recent case of Adoptive Couple v. Baby Girl, the Supreme Court erased them entirely. The federal government, tribes and states can address issues affecting Native military families in a number of ways discussed in this article, including:

• Kinship placement in contested adoptions put on hold due to deployment;

• Ensuring Memorandums of Understanding between military bases and states include reference to the Indian Child Welfare Act (ICWA);

• Identifying and educating attorneys — including Judge Advocates — on both ICWA and the Servicemembers Civil Relief Act;

• Training Veteran Treatment Court judges on issues specific to Native veterans;

• Modeling specialized state Indian Child Welfare Act dockets on Veteran Treatment Courts;

• Opening conversations between child welfare courts and veterans courts, and assigning one judge per family;

• Encouraging the development of tribal court veterans treatment dockets and engaging with the Veterans Administration (VA) through Veteran Justice Outreach Specialists (VJOs)

Two Indian Law Articles in Newest Volume of Arizona State Law Journal

Matthew L.M. Fletcher

Here:

Reid Peyton Chambers’ Canby Lecture, “REFLECTIONS ON THE CHANGES IN INDIAN LAW, FEDERAL INDIAN POLICIES AND CONDITIONS ON INDIAN RESERVATIONS SINCE THE LATE 1960s,” is available in pdf here.

And Matthew L.M. Fletcher’s “A UNIFYING THEORY OF TRIBAL CIVIL JURISDICTION” is available in pdf here and here.

Yale Law Journal Article: “Beyond the Indian Commerce Clause”`

Matthew L.M. Fletcher

Gregory Ablavsky has published “Beyond the Indian Commerce Clause” (PDF) in the Yale Law Journal.

Here is the abstract:

The Supreme Court has described the Indian Commerce Clause as the primary constitutional basis for federal exclusive and plenary power over Indian affairs. Recently, Justice Clarence Thomas, citing current scholarship, has argued that the Clause’s original understanding does not support this authority, with radical implications for current doctrine.

This Article uses unexamined historical sources to question this debate’s fundamental premise. It argues that the Indian Commerce Clause, open-ended when written, was a minor component of eighteenth-century constitutional thought. This Article instead posits alternate sources for federal authority over Indian affairs, drawing particularly on the Washington Administration. Asserting federal power against the states, the Administration embraced a holistic constitutional reading akin to present-day field preemption. With respect to authority over Indians, the Administration, through law-of-nations interpretations, asserted ultimate U.S. sovereignty over tribes, while acknowledging Native autonomy beyond these limitations. Yet these supposedly narrow legal principles ultimately formed the basis for the later elaboration of plenary power over tribes.

On the one hand, this history provides a more solid foundation for doctrinal principles derided as incoherent. On the other hand, it suggests more cabined federal authority over Indians. Ultimately, the Article demonstrates the value of more historically grounded reconstructions of constitutional understandings.

Harvard Law Review Comment on Dollar General v. Mississippi Band of Choctaw Indians

Matthew L.M. Fletcher

Here is “Dolgencorp, Inc. v. Mississippi Band of Choctaw Indians Fifth Circuit Disclaims Independent Obligation to Ensure that Tribal Courts Have Subject Matter Jurisdiction in Disputes Involving Nonmembers.”

Sonia Katyal on Engaged Scholarship (Big Indian Law Focus!)

Matthew L.M. Fletcher

Sonia Katyal has posted “Encouraging Engaged Scholarship: Perspectives from an Associate Dean for Research” on SSRN. The paper is forthcoming in the Touro Law Review.

Here is the abstract:

Today, there is little question that faculty scholarship is intimately related to the reputation of a law school, and also relatedly, to the law school rankings game. Central to this reality are some emergent administrative positions — the position of Associate Dean for Research, for example — which carry important possibilities for a law school, both internally and externally, in terms of promoting attention to scholarship. Yet this position, which has only recently emerged in law schools over the last twenty years, is also one that is largely fluid and often determined by the relative institutional capabilities of the rest of the University administration, in addition to the larger landscape of legal education. Because there is no precise one size fits all model for an Associate Dean, the fluidity of the position enables us to consider a range of variables that impact scholarly visibility, both internally within a law school community, and externally within the larger scholarly world. How can we, as Associate Deans, strive to support the productivity of faculty members in these shifting times? How can Associate Deans navigate complex social relations on faculties, where issues of gender, race, class, and other variables often abound? How can we draw attention to scholarly endeavors at a time when law schools are undergoing a massive transformation for the future? How can we ensure that legal scholarship remains relevant and important? How can we value the many types of scholarly contributions that our faculty can make, without imposing a narrow view of what counts as “serious” scholarship?

Answering these questions is not an easy task. Just as there are many different types of research and scholarship, there are many different roles for an Associate Dean for Research. As Associate Dean for Research at Fordham, and one of the small number of minority women who have held this position in law school academia, I have been struck by how many of these issues can be indirectly tied to traditional, institutional questions about building a law school community. Here, questions about identity, seniority, productivity, and interdisciplinary scholarship emerge, often without clear answers. Indeed, also, identity politics — not just demographic identities, but institutional identities — affect so many of the range of questions that surround productivity and the way in which research is valued and embraced in a law school community. Mainstream law review publications, clearly, are an essential part of every law faculty in the country, and should be valued and encouraged, but an administration, should also have a greater sense of the importance of other types of engaged scholarship. Here, I draw on the history and trajectory of American Indian legal scholarship as an illustrative example.

Note: This paper was prepared for a symposium on the role of the law school administration in encouraging greater visibility for scholarship.

California Law Review Comment on Indian Gaming and Worker’s Rights

Matthew L.M. Fletcher

Jonathan Guss has published “Gaming Sovereignty? A Plea for Protecting Worker’s Rights While Preserving Tribal Sovereignty” (PDF) in the California Law Review.

Here is the abstract:

Tribally owned gaming facilities have become an increasingly popular vehicle for economic development throughout Indian Country. As an incidental consequence of this industry’s growth, many non-tribal members now come into contact with tribal-gaming enterprises as either customers or employees. Consequently, tribal gaming establishments have become a vital nexus in battles over what tribal sovereignty should entail in a modern social and economic context. Indeed, the legal framework surrounding these entities highlights a central tension within our modern-day federal Indian law regime-one that often forces tribal governments to choose between maintaining absolute sovereign self-governance on the one hand, and providing modes of economic development, such as gaming, on the other. Both state and federal authorities play a role in the often complex regulatory structure around labor relations at tribal-gaming facilities. This means that non-tribal members may take labor and employment disputes outside of tribal laws and courts-a situation that tribes regard as an incursion upon tribal sovereignty. Nonetheless, labor advocates argue that the opposite situation would give tribal employers little incentive to give fair, adequate protections to their workers.

This Comment seeks to address the tension between tribal sovereignty and workers’ rights by proposing a positive approach. In concrete terms, this approach seeks to funnel labor and employment disputes through tribal courts by strengthening tribal labor and employment laws and alternative dispute resolution systems. The positive approach represents a third way to tribal sovereignty- where tribes, much like other nation-states facing the perils of globalization, can navigate global and local power networks from a position of strength rather than remain outside of them. The positive approach can also benefit workers by creating a strong internal tribal authority to protect labor and employment rights and by fostering opportunities for tribes to settle disputes through traditional or culturally based dispute resolution practices. This approach is in stark contrast to the decidedly anti-worker positions that some tribes have recently adopted by passing right-to-work laws and waging court battles against unfavorable shifts in the law. While the positive approach has the significant drawback of curbing some traditional elements of tribal sovereignty, its chief strength is its pragmatism, in that it works within, rather than against, recent shifts in federal Indian law jurisprudence. The approach can also provide a blueprint for economic development and tribal self-governance that can successfully coexist.

Materials in Adoptive Couple v. Baby Girl

Kate Fort

In response to a request, we’ve created a page to collect law review articles, bar journal articles, and cases after Adoptive Couple. It is a work in progress.

If you’re interested, bookmark this link.