Scholarship

New Scholarship by Gerald Torres on American Indian Blood

Matthew L.M. Fletcher

Gerald Torres has published “American Blood: Who is Counting and For What?” in the St. Louis University Law Journal‘s most recent symposium issue.

An excerpt:

For Indians, the problem of “who counts” is complex. That it could be asked at all reveals that asking “who counts?” is an artifact of power. The question could be whether Indians have “American blood”? Could they be part of the political community that was being created by Europeans in North America? Or could it mean who counts as an Indian for other reasons? These are not as radically divergent questions as they might first appear because they both pivot around the deeper inquiry: who is counting and for what? And because of the nature of the political culture of the new United States, “who counts” also necessarily implicates the question of race. Thus for Indians, the question is not merely whether they are a “race.” The question for Indians and other indigenous people is whether they will have access to the power that attaches to their being a nation and not just another “race” or ethnicity.

Big Horn General Stream Adjudication Symposium — Sept. 10-12, 2014

Matthew L.M. Fletcher

Here (PDF):

Big Horn Symposium Program_6-14_Page_1

 

Angelique EagleWoman Reflections on Being a Law Professor

Matthew L.M. Fletcher

Angelique EagleWoman has posted “Balancing between Two Worlds: A Dakota Woman’s Reflections on Being a Law Professor,” forthcoming in the Berkeley Journal of Gender, Law & Justice, on SSRN.

Here is the abstract:

There were many paths I considered as a young woman and none of them included becoming a law professor. My journey to my present life as a Dakota woman law professor is about balancing between the worlds I travel back and forth in. There is my tribal world , where I feel replenished and part of an on-going community experience stretching back to time immemorial. I feel that I am part of an unfolding history of endurance, strong Native women, and a participant in sustaining our traditional Native ways. On the other hand, there is the non-Indian world, where I often feel that I am a long-term visitor balancing in a foreign political and historical system, serving as a translator from the tribal traditional and historical world . As a law professor, I also serve as a translator between both the U.S. legal world and the tribal world of values embodied in tribal laws and norms.

In this article, I will discuss how I have balanced between these two worlds and found my way as a Dakota woman and law professor. The first sections of the article will describe my educational experiences, my sense of responsibility to my people, and my entry into the legal academy. In describing my experiences, it should be very apparent that I did not follow the usual trodden path to joining the legal academy. Rather, as a typical Dakota woman, I questioned academia as stemming from western civilization, struggled to assert my viewpoint as a tribal person, and dealt with real life experiences along the way. In the second section of the article, I offer my personal insights to my colleagues and those interested in joining the legal academy. This section reflects on the voices that resonated with me from the masterful and courageous work, Presumed Incompetent: The Intersections of Race and Class for Women in Academia. The final section concludes with my sense of commitment to continue balancing between two worlds to offer an example to the future generations of tribal peoples seeking legal educations and the fulfillment this brings.

New Student Scholarship on Off-Reservation Gaming

Matthew L.M. Fletcher

The UNLV Gaming Law Journal has published “Fencing the Buffalo: Off-Reservation Gaming and Possible Amendments to Section 20 of the Indian Gaming Regulatory Act” (PDF).

 

Angela Riley: “Native American Lands and the Supreme Court”

Matthew L.M. Fletcher

Angela Riley has posted her very impressive paper, “Native American Lands and the Supreme Court,” published in the Journal of Supreme Court History, on SSRN.

Here is the abstract:

The Supreme Court has been instrumental in defining legal rights and obligations pertaining to Indian lands since its first path-making decision in the field in Johnson v. McIntosh in 1823. But the groundwork for the Court’s contemplation of such cases predates Supreme Court jurisprudence, and it in fact predates the formation of the Court and the United States itself.

When Europeans first made contact with this continent, they encountered hundreds of indigenous, sovereign nations representing enormous diversity in terms of language, culture, religion, and governance. For those indigenous groups — as is a common attribute of indignity of similarly situated indigenous groups around the world — this land was and is holy land. Indigenous creation stories root Indian people in this continent — Turtle Island to many — as the focal point of life, creation, religion, culture, and language. In the settlement of the country, the colonial powers initially — and the United States subsequently — treated with Indian nations to negotiate the transfer of lands from Indians to Europeans, often in exchange for peace or protection.

Prof. Riley had previously presented this paper to the Supreme Court historical society, which was televised on C-SPAN.

Harvard Law Review Note on “Bad Men” Clause Litigation

Matthew L.M. Fletcher

The Harvard Law Review has published, “A Bad Man Is Hard to Find” (PDF).

Here is an excerpt:

Nine treaties concluded between the United States and various Indian tribes in 1867 and 1868 each contain what is known as a “bad men” provision. Within each of these provisions is a clause in which the United States promises to reimburse Indians for injuries sustained as a result of wrongs committed by “bad men among the whites, or among other people subject to the authority of the United States.”

Although these “bad men among the whites” clauses have rarely been used in the last century and a half, they remain the source of a viable cause of action for Indians belonging to those tribes that signed the nine treaties of 1867 and 1868. In 2009, Lavetta Elk won her action for damages under the Fort Laramie Treaty of 1868, recovering a judgment in the Court of Federal Claims of almost $600,0004 from the United States government.

New Scholarship on Employment Preferences and Statutory Exemptions for Alaska Native Corporations

Matthew L.M. Fletcher2 Comments

Gregory S. Fisher & Erin “Faith” Rose have published “Selling Ice in Alaska: Employment Preferences and Statutory Exemptions for Alaska Native Corporations 40 Years After ANCSA” in the Alaska Law Review.

Here is the abstract:

In 1971, Congress enacted the Alaska Native Claims Settlement Act (ANCSA) in order to settle land disputes between Alaska Natives and the federal government. ANCSA established Alaska Native Corporations (ANCs), which were tasked with managing settlement funds to provide for the health, education, and economic welfare of Alaska Natives. To enable the ANCs to promote the interests of their shareholders, Congress exempted ANCs from certain employment restrictions contained in Title VII of the Civil Rights Act, but did not exempt ANCs from other worker-protective legislation. In subsequent decades, courts reviewing the preferential practices of ANCs have often construed these statutory exemptions narrowly, thus exposing ANCs to liability under various anti-discrimination statutes. This Article argues that Congress never intended to subject ANCs to these pieces of worker-protective legislation, despite court holdings to the contrary. The Article proposes two possible solutions to this discrepancy: (1) congressional amendment of ANCSA to clarify and further limit the extent of ANC liability; and (2) judicial adoption of a two-part test which would consider employment policies giving preference to Alaska Native shareholders in light of Congress’s intent to protect such preferences.

California Appeals Court Finds Court Rules about Indian Children Inconsistent with Legislative Intent

Kate Fort

Decision (a rare published ICWA decision for CA).

The children were eligible for membership at Cherokee Nation of Oklahoma. The trial court ordered DHHS to help enroll the children as active efforts. DHHS appealed. The appellate court found that both ICWA and California state law limited the definition of Indian child (member, or bio child of a member and eligible), and if the children did not fit in that definition, the laws did not apply. As such, the rules were beyond the scope of the Judicial Counsel to pass.

The rules:

Rule 5.482(c) states, “If after notice has been provided as required by federal and state law a tribe responds indicating that the child is eligible for membership if certain steps are followed, the court must proceed as if the child is an Indian child and direct the appropriate individual or agency to provide active efforts under rule 5.484(c) to secure tribal membership for the child.”
Rule 5.484(c) states, “In addition to any other required findings to place an Indian child with someone other than a parent or Indian custodian, or to terminate parental rights, the court must find that active efforts have been made, in any proceeding listed in rule 5.480, to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family, and must find that these efforts were unsuccessful.
“(1) The court must consider whether active efforts were made in a manner consistent with the prevailing social and cultural conditions and way of life of the Indian child’s tribe.

(2) Efforts to provide services must include pursuit of any steps necessary to secure tribal membership for a child if the child is eligible for membership in a given tribe, as well as attempts to use the available resources of extended family members, the tribe, tribal and other Indian social service agencies, and individual Indian caregivers.”

 

Another Supreme Court Opinion This Term on Time Limitations for Claims

Kate Fort

Yesterday the Court decided  CTS Corp. v. Waldburger (non-federal-Indian-law case). The Court held that injured parties cannot bring claims against corporations that pollute if the claim falls outside of a state statute of repose, even if the claim would be otherwise preserved by a federal law. Generally, the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA) pre-empts state statutes of limitation, because Congress wanted to preserve injuries from pollution that can sometimes take years to discover. However, North Carolina also has a state statute of repose, which bars claims brought more than 10 years after the last culpable act. Since CERCLA only specifically identifies statutes of limitations and not repose, the Court found the claimants are unable to bring their damages claim against the company (which sold the land in 1987).

In her dissent with Justice Breyer, Justice Ginsburg would preserve the claim, finding Congress’s intent was to preserve these claims, regardless of the name of the state limitations statute.

Not only will this decision harm the landowners involved in the case, but those injured by contaminated wells at Camp Lejeune (a Marine base also in North Carolina), who currently have claims pending in the 11th Circuit. Article here from right after oral arguments (though it misjudges J. Kagan, who joined the majority in the case).

Fletcher on NY Times Room for Debate: American Indians Seek Control, Not Just Payment

Kate Fort

Here.

America’s moral debts to African-Americans and American Indians are shockingly deep and wide. African Americans point to slavery, Black Codes, Jim Crow, and redlining. And American Indians point to land and resources theft, boarding schools, and cultural and religious persecution. But while African-Americans eye individual payments, Indian tribes seek control over lands and natural resources taken from them by the United States and state governments. The advantage in the tribal strategy is to make Uncle Sam the bad guy. African-American strategists should take note. 

All articles here.