Scholarship

New Scholarship Condemning the Tobacco Master Settlement Agreement for Selling Out Indian Nations

Matthew L.M. Fletcher

Ryan D. Dreveskracht has posted his new paper, “Forfeiting Federalism: The Faustian Pact with Big Tobacco,” (PDF) just published in the Richmond Journal of Law and Public Interest.

Here is the abstract:

This article discusses the effects of the largest legal settlement in United States history: the so-called Master Settlement Agreement, or “MSA.” Part I discusses the settlement generally, and its intended effect on the U.S. tobacco market. Parts II through IV discuss the unintended consequences of the settlement. Specifically, Part II considers how states got into their current disarray, and how a perceived state windfall of billions of dollars ended up putting states on what by all accounts now appears to be very real risk of insolvency. Part III examines how the major tobacco companies are using the states’ dire financial condition to stifle tribal sovereignty and Indian industry. Part IV analyzes the federal government’s role in similar oppressive tactics. The concluding section suggests lessons that might be learned from the MSA.

 

Harvard Law Review Comment on Michigan v. Bay Mills

Matthew L.M. Fletcher

Here is Leading Case: Michigan v. Bay Mills Indian Community, 134 S. Ct. 2024 (2014).

An excerpt:

While the Court’s decision is a victory for those who feared the abrogation of tribal immunity, its suggestion that states seek remedies in state law signals approval of leaving the resolution of legal questions central to state-tribe disputes to the states, even when the question concerns the extent of Indian land. Such a view would be inconsistent with recent trends generally favoring greater federal control and congressional support for tribal self-determination, and could result in actions that are detrimental to tribes.

Congrats to Rabia Belt and Greg Ablavsky!!!!

Matthew L.M. Fletcher

Winners of the Kathryn T. Preyer Scholar Award, a very big deal in legal history circles!

I met Rabia (JD/PhD from Michigan — Go Blue twice) when she audited my Federal Indian Law class in the winter of 2011. I strongly recommend all her work, but my favorite is the paper on madness. 🙂

I met Greg through his American Indian legal history work (here, here and here), some of which he workshopped a few summers back at Angela Riley’s wonderful UCLA junior scholars workshop.

Scholarship on the Wisconsin Indian Child Welfare Act

Matthew L.M. Fletcher

Loa Porter (Department of Children and Families, State of Wisconsin), Patina Park Zink, Angela R. Gebhardt (University of Nebraska at Lincoln – Center on Children, Families, and the Law), Mark Ells (University of Nebraska-Lincoln), and Michelle I. Graef, Ph.D. (University of Nebraska at Lincoln – Center on Children, Families, and the Law) have posted “Best Outcomes for Indian Children” on SSRN. It was previously published in Child Welfare.

Here is the abstract:

The Wisconsin Department of Children and Families and the Midwest Child Welfare Implementation Center are collaborating with Wisconsin’s tribes and county child welfare agencies to improve outcomes for Indian children by systemically implementing the Wisconsin Indian Child Welfare Act (WICWA). This groundbreaking collaboration will increase practitioners’ understanding of the requirements of WICWA and the need for those requirements, enhance communication and coordination between all stakeholders responsible for the welfare of Indian children in Wisconsin; it is designed to effect the systemic integration of the philosophical underpinnings of WICWA.

Alex Skibine on Indian Law and the New Equal Protection

Matthew L.M. Fletcher

Alexander Tallchief Skinine has posted “Using the New Equal Protection to Challenge Federal Control Over Tribal Lands” on SSRN.

Here is the abstract:

There are today over 55 million acres of land owned by Indian tribes or their members that the Federal government claims are held in trust by the United States for the benefit of these tribes or members. Throughout history, purporting to act as a trustee for the Indians, Congress has enacted laws severely restricting the ability of Indians to make management decisions with respect to these lands. Many of these laws, for instance impose federal approval requirements before these tribally-owned lands can be leased, sold, or otherwise encumbered. This Article calls into question the power of the federal government to impose such restrictions and argues that these laws constitute a denial of equal protection under the Due Process Clause Fifth Amendment. Since 1974, laws made specifically applicable to Indians because of their status as Indians have been held not to involve racial classifications but political ones because these laws do not affect all “Indians” but only those Indians that are also members of Indian tribes. While this holding has been welcomed by tribes when fighting to uphold laws benefitting Indians, it has also impaired their ability to make effective equal protection arguments against laws detrimental to them. The prevailing view is that in order to mount a successful equal protection challenge, Indians would have to show that such laws are not rationally tied to Congress’ unique trust obligations towards Indians. Others take the position that regular rational basis review would be applicable to such equal protection challenges. This Article disagrees with both positions and argues that the new Supreme Court Equal Protection jurisprudence as reflected in cases such as United States v. Windsor (2013) can be successfully used by Indian tribes to attack those laws imposing, only on them, federal approval requirements before such lands can be leased or otherwise encumbered. Under such new jurisprudence a law can be set aside under equal protection either if it was based on unconstitutional animus towards a vulnerable minority or if it did not pass a somewhat more intensive level of review than rational basis. What some scholars have called “rational basis with bite.”

Highly recommended!

New Scholarship on UNDRIP and the Rights of Indigenous Peoples to Existence, Cultural Integrity and Identity, and Non-Assimilation

Matthew L.M. Fletcher

Dr. Jesse Hohman has posted “The UNDRIP and the Rights of Indigenous Peoples to Existence, Cultural Integrity and Identity, and Non-Assimilation” on SSRN. It is forthcoming in Oxford Commentaries on International Law – A Commentary on the United Nations Declaration on the Rights of Indigenous Peoples.

Here is the abstract:

The importance of international legal provisions protecting the right to indigenous survival, both individually and collectively, can only be understood in light of the fact that to date, legal standards have not protected indigenous peoples from much of the violence perpetrated against them. Rather, international and domestic laws have often served as instruments to perpetrate cultural and personal extinction and assimilation. From the earliest encounters between Westphalian international law and indigenous peoples, international law operated so as to bring indigenous peoples within its reach, yet deny them the benefits of its protection.

This chapter of a forthcoming Oxford Commentary, considers the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), specifically Articles 7(2); 8 & 43. The paper maps out how these provisions relate to the existing legal landscape of indigenous rights, and assesses what they have added to that landscape.

The specific issues raised by these provisions are the issue of collective rights; the relationship between cultural and individual assimilation; the prohibition of genocide; the legal status of the concept of ethnocide or cultural genocide; the question of legal duties to prevent harms and violence against indigenous peoples and communities; and the concept of minimum standard rights in the context of indigenous peoples’ dignity and well-being.

These provisions of the UNDRIP are, accordingly, some of the most central, if under-examined, of the Declaration.

Tink Tinker Article: “Redskin, Tanned Hide — A Book of Christian History Bound in the Flayed Skin of an American Indian”

Matthew L.M. Fletcher1 Comment

Here is “Redskin, Tanned Hide: A Book of Christian History Bound in the Flayed Skin of an American Indian: The Colonial Romance, Christian Denial and the Cleansing of a Christian School of Theology” (PDF). It was published in the Journal of Race, Ethnology, and Religion.

Professor Tinker’s website.

 

New Indian Law Scholarship in the Tulsa Law Review

Matthew L.M. Fletcher

Here:

PDF

In Search of a Civil Solution: Tribal Authority to Regulate NonMember Conduct in Indian Country
Philip H. Tinker

PDF

A Brief History of Indian Trust Administration Reform: Will the Past be Prologue?
Joseph R. Membrino

New Scholarship on Removals of Indian Children from their Homes

Matthew L.M. Fletcher1 Comment

Alyosha Goldstein has posted “Possessive Investment: Indian Removals and the Affective Entitlements of Whiteness,” published in the American Quarterly, on SSRN. Here is the abstract:

In 2013 the US Supreme Court effectively granted custody of an almost four-year-old child to adoptive white parents over the opposition of her Cherokee birth father and the Cherokee Nation in Adoptive Couple v. Baby Girl (the “Baby Veronica” case). This essay examines the Court ruling, and the protracted custody and jurisdictional struggles in its wake, in order to show how whiteness in the US has been historically constituted not only as a form of property but also as the capacity to possess. Against the perspective that colonialism persists in the US only insofar as indigeneity remains legible as racial difference, this essay focuses on how Adoptive Couple served as a means of reasserting white heteronormative rights to possess and to deny culpability for the ongoing conditions and consequences of colonization and multiple forms of racial violence in the present.

New Dissertation on Cooperative Land Use on an Indian Reservation

Matthew L.M. Fletcher1 Comment

Dr. Rebecca M. Webster has completed her dissertation “Common Boundaries: Moving Toward Coordinated and Sustainable Planning on the Oneida Reservation” (PDF). Here is the abstract:

Comprehensive planning can help communities engage in purposeful and sustainable land use development. Previous research has indicated that Indian reservations in the United States often face unique roadblocks to these planning efforts: checkerboard patterns of tribal and nontribal ownership, and the presence of both tribal and local governments exercising land use authority within the same shared space. These roadblocks can lead to uncooperative, uncoordinated, or unsustainable development. Despite these noted problems, there remains an important gap in the current literature regarding solutions to overcome these roadblocks. The purpose of this study was to address that gap. Guided by Forester’s critical planning theory to critically examine the social and historical roots of planning within a particular community, this qualitative case study examined government records and conducted 18 interviews of tribal and local government officials. Data analysis consisted of coding data to reveal emergent themes relating to cooperative land use planning in the future. These themes included: (a) approaching planning with a regional philosophy in mind, (b) strengthening interpersonal relationships, (c) finding ways to fairly compensate each other for government services, (d) continuing to acknowledge each government’s ability to govern within this shared space, and (e) refraining from asserting authority over a neighboring government. This research is an important contribution to the existing literature and enhances social change initiatives by providing guidance for tribal and local government officials to increase cooperative land use planning.

For anyone who has followed the legal and political battles between the Oneida Tribe of Wisconsin and the Village of Hobart, this is a must-read.