Scholarship

Top 15 or so American Indian Law Articles by SSRN Download from 2014

Matthew L.M. Fletcher

We did this for 2013 last December, and in 2012. We are trying again by popular demand. And because MSU soon will begin hosting the SSRN Indigenous Nations & Peoples Law eJournal.

1. Human Rights to Culture, Family, and Self-Determination: The Case of Adoptive Couple v. Baby Girl
Forthcoming in STEFAN KIRCHNER AND JOAN POLICASTRI, EDS., INDIGENOUS RIGHTS IN INTERNATIONAL LAW.
Kristen A. Carpenter and Lorie Graham
University of Colorado Law School and Suffolk University Law School
Date Posted: February 28, 2014
Working Paper Series
231 downloads

2. Constitutionalism, Federal Common Law, and the Inherent Powers of Indian Tribes
Forthcoming, American Indian Law Review, University of Utah College of Law Research Paper No. 76
Alexander Tallchief Skibine
University of Utah – S.J. Quinney College of Law
Date Posted: April 17, 2014
Last Revised: April 29, 2014
Accepted Paper Series
213 downloads

3. Native American Lands and the Supreme Court
Journal of Supreme Court History, 38: 369-385, 2013
Angela Riley
University of California, Los Angeles (UCLA)
Date Posted: June 19, 2014
Accepted Paper Series
196 downloads

4. Mapping Intergenerational Memories (Part I): Proving the Contemporary Truth of the Indigenous Past
Arizona Legal Studies Discussion Paper No. 14-01
Robert Hershey , Jennifer McCormack and Gillian E. Newell
University of Arizona – James E. Rogers College of Law , University of Arizona – Department of Geography and Regional Development and Independent
Date Posted: January 12, 2014
Working Paper Series
163 downloads

5. Constitutional Concern, Membership, and Race
Florida International Law Review, 2014, Forthcoming , U of Colorado Law Legal Studies Research Paper No. 14-3
Sarah Krakoff
University of Colorado Law School
Date Posted: April 04, 2014
Accepted Paper Series
126 downloads

6. No Sticks in My Bundle: Rethinking the Indian Land Tenure Problem
Kansas Law Review, Forthcoming
Jessica A. Shoemaker
University of Nebraska – College of Law
Date Posted: May 01, 2014
Accepted Paper Series
107 downloads

7. In Search of a Civil Solution: Tribal Authority to Regulate Nonmember Conduct in Indian Country
Tulsa Law Review, September 2014, Forthcoming
Philip H. Tinker
Kanji & Katzen, PLLC
Date Posted: February 22, 2014
Accepted Paper Series
82 downloads

8. Consumer Credit on American Indian Reservations
Valentina P. Dimitrova-Grajzl , Peter Grajzl , A. Joseph Guse and Richard M. Todd
Virginia Military Institute , Washington and Lee University – Department of Economics , Washington and Lee University – Williams School of Commerce, Economics, and Politics and Federal Reserve Bank of Minneapolis
Date Posted: March 14, 2014
Last Revised: May 28, 2014
Working Paper Series
81 downloads

9. Tribes as Innovative Environmental ‘Laboratories’
Elizabeth Ann Kronk Warner
University of Kansas – School of Law
Date Posted: February 14, 2014
Last Revised: February 22, 2014
Working Paper Series
80 downloads

10. Balancing between Two Worlds: A Dakota Woman’s Reflections on Being a Law Professor
Berkeley Journal of Gender, Law & Justice, Vol. 29, No. 2, 2014
Angelique Townsend EagleWoman
University of Idaho – College of Law
Date Posted: June 15, 2014
Accepted Paper Series
72 downloads

11. Finance and Foreclosure in the Colonial Present
Radical History Review, Issue 118 (Winter 2014)
Alyosha Goldstein
University of New Mexico
Date Posted: January 30, 2014
Accepted Paper Series
71 downloads

12. Rising Waters, Rising Threats: The Human Trafficking of Indigenous Women in the Circumpolar Region of the United States and Canada
MSU Legal Studies Research Paper No. 12-01
Victoria Sweet
Michigan State University College of Law
Date Posted: February 22, 2014
Accepted Paper Series
73 downloads

13. Tribal Laws & Same-Sex Marriage: Theory, Process, and Content
Ann E. Tweedy
Hamline University School of Law
Date Posted: January 12, 2014
Last Revised: July 18, 2014
Working Paper Series
59 downloads

14. What Does Indigenous Participatory Democracy Look Like? Kahnawà:Ke’s Community Decision Making Process
Review of Constitutional Studies, Vol. 18, No. 1, 2013
Kahente Horn-Miller
Mohawk Council of Kahnawake
Date Posted: May 17, 2014
Accepted Paper Series
57 downloads

15t. In the Name of the Child: Race, Gender, and Economics in Adoptive Couple v. Baby Girl
Florida Law Review, Forthcoming
Bethany Berger
University of Connecticut School of Law
Date Posted: March 30, 2014
Last Revised: May 29, 2014
Accepted Paper Series
50 downloads

15t. Essay: Tribal Trustees in Climate Crisis
American Indian Law Journal, Vol. II, Issue II, Spring 2014, Forthcoming
Mary C. Wood
University of Oregon – School of Law
Date Posted: April 05, 2014
Working Paper Series
50 downloads

15t. International and Domestic Law Dimensions of Climate Justice for Arctic Indigenous Peoples
Ottawa Law Review, Vol. 43, No. 113, 2013
Elizabeth Ann Kronk Warner and Randall S. Abate
University of Kansas – School of Law and Florida A&M University – College of Law
Date Posted: February 03, 2014
Accepted Paper Series
50 downloads

18 (honorable mention). Tribal Rights of Action
Columbia Human Rights Law Review, Vol. 45, No. 2, 2014
Seth Davis
University of California, Irvine School of Law
Date Posted: April 04, 2014
Accepted Paper Series
47 downloads

This one is not yet available for download but I’m sure it would have made the list:

Beyond the Indian Commerce Clause
Yale Law Journal, Forthcoming
Gregory Ablavsky
University of Pennsylvania Law School
Date Posted: August 14, 2014
Accepted Paper Series

We skipped out on articles about Indigenous peoples outside of the US, so here is a sampling of articles focusing on more international questions: Continue reading →

Useful Scholarly Materials on RFRA, the Eagle Act, and Hobby Lobby

Matthew L.M. Fletcher

I urge readers to check out two papers by Kati Kovacs at Rutgers Law School. She formerly worked in DOJ ENRD. She just published Eagles, Indian Tribes, and the Free Exercise of Religion is available online, http://digitalcommons.lmu.edu/cgi/viewcontent.cgi?article=2863&context=llr, and has a forthcoming piece on Hobby Lobby and the Eagle Act, entitled Hobby Lobby and the Zero-Sum Game, http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2484613.

Three Remanded for ICWA Notice Deficiency Cases out of California

Kate Fort1 Comment

Cases from the Second District, the Fourth District and the First District.

From the Second District:

Before the next scheduled hearing on January 31, 2013, DCFS submitted the following documents to the court: signed return receipts for the entities noticed; a letter from the Bureau of Indian Affairs acknowledging receipt of the ICWA notice but indicating it does not determine tribal eligibility; a letter from the United Keetoowah Band of Cherokee Indians in Oklahoma declining to intervene in the case because there was no evidence T.M. was a descendant of anyone on the Keetoowah Roll based on the information supplied; a letter from the Cherokee Boys Club, Inc., on behalf of the Eastern Band of Cherokee Indians, declining to intervene in the case because T.M. was neither registered nor eligible to register as a member of the tribe based on the information supplied; and a letter from the Cherokee Nation seeking further information. The Cherokee Nation letter asked DCFS to “verify correct spelling of maternal great great grandmother Lual Made [D.], also need her date of birth. Relationship of Eleonora [H.] to the above named child. [¶] We need dates of birth for everyone involved, their relationship to the child or children in question, and maiden names of all females listed. It is impossible to validate or invalidate this claim without more complete information.” (Boldface and capitalization removed.)

At the January 31, 2013 hearing, which was presided over by a different hearing officer than Commissioner Lewis, the court stated the tribes were properly noticed and it had received letters back from the tribes indicating T.M. was not an Indian child. The court found the ICWA did not apply. The court did not acknowledge the Cherokee Nation’s request for further information.

Just spit balling here, but maybe the reason Cherokee Nation puts part of its response in BOLDFACE CAPITALIZATION is to help a state court out, so it doesn’t find ICWA doesn’t apply when it might.

Alternative Reports A and B to the UN CERD Regarding Violation of Indigenous Children’s Right to Culture

Kate Fort

Speaking of ICWA placement preferences, Here are the reports submitted to the UN Committee on the Elimination of Racial Discrimination by the National Native American Boarding School Healing Coalition, the International Indian Treaty Council, and the National Indian Child Welfare Association:

Alternative Report A: Indigenous Children and the Legacy and Current Impacts of the Boarding School Policies in the United States and the Lack of Redress, Restitution and Restoration by the United States to Address these Impacts or to Acknowledge Responsibility for Them
Alternative Report B: The Continued Removal of Indigenous Children from Their Families and Communities and its Impact on The Right to Culture

Update — a blurb from the authors:

During last week’s two-day dialogue with the United States, the United Nations Committee on the Elimination of Racial Discrimination members asked questions of the US delegation relying on the information provided to it by the United States as well as reports submitted by non-governmental organizations and stakeholders.  The National Indian Child Welfare Association submitted such a report voicing concerns over the problematic implementation of the Indian Child Welfare Act. The report on “The Continued Removal of Indigenous Children from Their Families and Communities and its Impact on the Right to Culture (Alternative Report B)” was drafted in partnership with Suffolk Law’s Indigenous Peoples Rights Clinic, and can be viewed at hhere. During the session, Committee members asked the United States to comment on the over- representation of indigenous children in foster care and the bias in private adoptions. The Committee’s Concluding Observations report should be released next month.

ICWA Placement Preference Decision Out of California Involving Choctaw Tribe

Kate Fort3 Comments

Here.

This is a re-occurring and incredibly frustrating ICWA fact pattern–if the ICWA compliant placement is out of state, or far away from the parents, and the goal is reunification, it makes sense for the tribe and state to allow for a non-compliant ICWA placement near the parents. What happens, however, when reunification fails? As in this case, a court is often unwilling to remove the child from the home she has been in for anywhere from one to three years. Honest, actual, concurrent permanency planning could help with this, but while that is a best practice, it does not seem to be happening with any regularity at the state.

Concluding that the ICWA’s adoptive placement preferences do apply to this case, we then review the trial court’s order finding that the P.s failed to produce clear and convincing evidence of good cause to depart from those placement preferences. We determine that the court applied the correct burden of proof by requiring the P.s to prove by clear and convincing evidence that there was good cause to deviate from section 1915’s placement preferences. However, the court erroneously required the P.s to prove a certainty that Alexandria would suffer harm if moved, and failed to consider Alexandria’s best interests or her bond with the P.s in determining good cause.

***

We recognize that a final decision regarding Alexandria’s adoptive placement will be further delayed as a result of our determination of the merits of this appeal. That delay is warranted by the need to insure that the correct legal standard is utilized in deciding whether good cause has been shown that it is in the best interest of Alexandria to depart from the ICWA’s placement preferences.

As also often happens, the parties start arguing about the very constitutionality of ICWA, making this case a “not as bad as it could have been” case–the court didn’t find ICWA is unconstitutional, nor does Adoptive Couple apply (as the de facto parents argued) to this fact pattern. And yet, the trial court decision placing the child with her extended family is still overturned based on the child’s best interest standard. Getting courts to acknowledge that the best interests of a child ought to include the child’s whole life, not just the one transition in front of the court at that moment, is both vital and seemingly impossible.

For the (depressing) record, here is Evelyn Blanchard writing the same thing in 1977 in The Destruction of American Indian Families, ed. Steven Unger (Association of American Indian Affairs 1977).

(Happy to post redacted briefs if we receive any)

DOJ Amicus Brief in SD ICWA Class Action Case

Kate Fort3 Comments

The United States came in strongly on the side of the tribes and tribal families for both the enforcement of ICWA and meaningful due process.

Here.

Thus, from the very start of an emergency removal, Section 1922 requires state courts, agencies, and officials to actively investigate and evaluate whether the emergency situation has ended. Given the statutory requirements for oversight and “immediate” action, this ongoing obligation cannot be deferred for weeks or months until the next scheduled hearing occurs.

***

The interest that parents have in the custody of their children is not to be lightly interfered with, even following an emergency situation. While an emergency proceeding such as the 48- hour hearing may not permanently deprive parents of their custody rights, even a temporary deprivation of physical custody requires a prompt and meaningful hearing.

Memorandum in support of leave to file amicus here.

Motion for Leave to File here.

Update — The court granted the motion the next day:

123 DCT Order Granting US Motion

Previous coverage here.

Forthcoming B.C. Law Review Note on the Impact of Congressional Exemptions for Alaska Natives

Matthew L.M. Fletcher

The Boston College Law Review will publish “An Era of Continued Neglect: Assessing the Impact of Congressional Exemptions for Alaska Natives,” now posted on SSRN.

Here is the abstract:

This Note examines Congress’s recent efforts at reforming Native American criminal justice systems while exempting Alaska Natives. This Note argues that Congress and the State of Alaska should expand Alaska Native tribal sovereignty to allow Alaska Native tribes to prosecute crimes like domestic violence and sexual assault in order to more effectively promote safety and justice in rural Alaskan communities.

Two Additional Links of Interest Regarding the Nebraska ICWA Truancy Case

Kate Fort2 Comments

Here is the audio of the oral arguments for the case we posted on here.

And here is a UCLA Law Review Discourse (online) article on the problematic framing of truancy in general.

Nebraska Court of Appeals Overturns Lower Court Removing Child for Truancy Under ICWA

Kate Fort2 Comments

Opinion here (from June 24).

On February 26, 2013, the juvenile court ordered Mischa to be placed into foster care and the case plan was modified to allow for liberal visitation of Mischa with her family. In reaching this decision, the court noted the parents’ argument that Neb. Rev. Stat. § 43-1505(5) (Reissue 2008) provides that foster care placement may not be ordered in the absence of a determination by clear and convincing evidence includ- ing testimony of qualified expert witnesses that continued custody by the parent or Indian custodian is likely to result in serious emotional and physical damage to the child. The court found that serious emotional damage would result to Mischa as a result of insufficient education. The court found, however, that even in the absence of such proof, the statute is unconstitutional as applied in this case, stating that “Indian children are entitled to no less educational opportunity than other children and accordingly, as applied in this particular case, such statute is unconstitutional to the extent that it would deny Mischa educational opportunity even in the absence of serious emotional and physical damage . . . .” The order was silent on whether active efforts had been provided to prevent the breakup of this family. Deanna and Chris subsequently perfected their appeal to this court.

Unpublished California ICWA Opinion Reversing for Non-Compliance

Kate Fort2 Comments

A long and sad opinion here, but a few things of note:

-as usual, Jay Treaty arguments are brushed aside.

-the State’s assumption that a claim of tribal membership is vague doesn’t mean ICWA might apply. And families might involve many tribes, from geographically diverse areas.

-there is or was a dedicated ICWA court or docket in Los Angeles County.

-the foster parents were not interested in helping with reunification in the slightest.