Scholarship

Michigan Tech Dissertation on Tribal-State Fishery Co-Management

Kate Fort

Here.

Preface
Goals and objectives
The research goals were to assess and describe characteristics of a multi-cultural fishery co-management arrangement of state and tribal organizations in Michigan in order to provide information and recommendations to enhance the institutional
relationship. Information was collected through interview data and quantitative analysis of agency work plans of the Bay Mills Indian Community, Grand Traverse Band of Ottawa and Chippewa Indians, Little River Band of Ottawa Indians, Little Traverse Bay Bands of Odawa Indians, Sault Ste. Marie Tribe of Chippewa Indians and the State of Michigan.
Objectives Included:
1. Determine extent of agency understanding for each other’s management priorities and knowledge systems used for guiding fishery management decisions and how they may influence views on the value of science in fishery management, and
suggest strategies for navigating multi-cultural institution building (Chapter 2).
2. Present how different participant values and perspectives shape priorities of biological assessments and restoration activities, identify and assess common and exclusive priorities and develop recommendations for collaboration (Chapter 3).
3. Describes how agency participants value collaboration, what barriers exist for successful collaboration and how an ideal relationship could be formed and function (Chapter 4).

ABA’s Ranking of Judicial Candidates More Likely to Disadvantage Women and Minorities

Kate Fort

NY Times article here.

Original study here.

Article abstract:

This article uses two newly collected data sets to investigate the reliance by political actors on the external vetting of judicial candidates, in particular vetting conducted by the nation’s largest legal organization, the American Bar Association (ABA). Using these data, I show that minority and female nominees are more likely than whites and males to receive lower ratings, even after controlling for education, experience, and partisanship via matching. These discrepancies are important for two reasons. First, as I show, receiving poor ABA ratings is correlated with confirmation failure. Second, I demonstrate that ABA ratings do not actually predict whether judges will be “better” in terms of reversal rates. Taken together, these findings complicate the ABA’s influential role in judicial nominations, both in terms of setting up possible barriers against minority and female candidates and also in terms of its actual utility in predicting judicial performance.

Jessica Shoemaker on the Indian Land Tenure Problem

Matthew L.M. Fletcher2 Comments

Jessica Shoemaker has posted “No Sticks in My Bundle: Rethinking the Indian Land Tenure Problem,” forthcoming in the Kansas Law Review.

Here is the abstract:

This article analyzes the modern rule that individual Indian co-owners of allotted land retain no direct rights to use and possess their own property without a lease or other prior permission from their co-owners. This special Indian no-use and no-possession rule is of a relatively recent vintage, and it is contrary to the rights of co-owners in nearly every non-Indian jurisdiction. This rule is also ahistorical and contrary to current federal policy to promote Indian use of Indian land. While other scholarship on Indian land tenure has focused on the practical challenges of coordinating among so many co-owners in Indian lands’ fractionated state and on the limits imposed by the federal trust status’s alienation restraints on these lands, this article argues that the lack of legal possession and use rights for Indian co-owners is a third and previously overlooked factor in the problem of Indian self-determination. This article ultimately concludes that the federal co-ownership rules for individual Indian lands are poorly designed and are exacerbating other land tenure and social and economic problems in Indian Country. This article ultimately proposes tribally driven solutions to create a more rational and culturally congruent property system for indigenous people.

Ann Tweedy Reviews Paper on Oral History by Hershey, McCormack, and Newell

Matthew L.M. Fletcher1 Comment

“Oral History and Perceptions of Subjectivity,” from Jotwell.

The Hersey et al. paper, Mapping Intergenerational Memories (Part I): Proving the Contemporary Truth of the Indigenous Past, is here.

New Student Scholarship Proposing Rule of Evidence re: American Indian Oral Tradition

Matthew L.M. Fletcher

The Penn State Law Review has published “Native American Oral Traditional Evidence in American Courts: Reliable Evidence or Useless Myth?” by Rachel Awan.

Here is the abstract:

American history is rife with conflict between Native American cultures and the Anglo-American legal system. When Native American groups bring claims in federal court, they face a host of biases that fail to consider their distinctive cultural background. One such bias concerns the use of oral traditional evidence as testimony at trial. Because Native American groups were largely non-literate prior to European contact, Native Americans often use oral traditional evidence as testimony if the matter requires evidence extending centuries into the past. Unfortunately, the law regarding Native Americans’ use of oral traditional evidence as testimony has been particularly problematic because the existing jurisprudence has created uncertainty and inconsistency. This generates negative consequences because without the use of oral traditional evidence, Native American groups may lack the means to contend with opposing parties.

American courts have attempted to handle this genre of evidence for almost a century. Their efforts, however, have resulted in an array of cases that are nearly impossible for future claimants and litigants to follow. Specifically, cases from both the U.S. claims court and circuit courts do not detail the methods used in rejecting or admitting the oral traditional evidence. This creates harmful uncertainty for potential claimants who wish to use oral traditional evidence.

This Comment discusses American and Canadian jurisprudence, as the Supreme Court of Canada has explicitly created an evidentiary exception to accommodate aboriginal oral traditional evidence. This Comment then proposes a rule of evidence to guide American courts in making informed decisions regarding Native American oral traditional evidence.

New Paper by Alex Skibine: “Constitutionalism, Federal Common Law, and the Inherent Powers of Indian Tribes”

Matthew L.M. Fletcher

Alexander Tallchief Skibine has posted his paper, “Constitutionalism, Federal Common Law, and the Inherent Powers of Indian Tribes,” forthcoming in the American Indian Law Review, on SSRN.

Here is the abstract:

In this Article, I argue that because Indian tribes have been incorporated into our constitutional system under a third sphere of sovereignty, the federal common law analysis under which the Court determines the extent of sovereign authority still possessed by Indian tribes is faulty. Instead of using federal common law, the Court should adopt a constitutional or at least quasi constitutional mode of analysis in determining such issues which in this case should be a dormant Indian Commerce Clause analysis. I also argue that the incorporation of tribes into our constitutional order not only has diminished the amount of power Congress has over such tribes but also may have limited the ability of tribes to escape limits the Constitution imposed on any exercise of sovereign authority within the geographical limits of the United States.

Highly recommended.

New Student Scholarship on the Patchak Decision

Matthew L.M. Fletcher

Anna O’Brien has published Misadventures in Indian Law: The Supreme Court’s Patchak Decision in the University of Colorado Law Review

Here is the abstract:

Ever since European colonization of the Americas began in the fifteenth century, there has been friction between the new arrivals and the native inhabitants. The United States has dealt with its “Indian problem” through assimilation, reservations, and eventually, self-determination for Indian tribes. But Indian tribes have never truly lost their sovereignty. Over the years, the United States has developed a vast body of Indian law to try and find a place for tribal sovereignty in a legal and political system created by the conquerors. In a recent case, the Supreme Court created a new rule that will allow non-Indians to sue the Federal Government to divest the government of title to land held in trust for Indian tribes. The decision has dealt a blow to tribal sovereignty by rendering the trust status of tribal lands uncertain. That uncertainty should be removed by legislative action.

Student Commentary on Michigan v. Bay Mills Indian Community

Matthew L.M. Fletcher

Here, in the Duke Journal of Constitutional Law & Public Policy Sidebar. Titled A Tradition of Sovereignty: Examining Tribal Sovereign Immunity in Bay Mills Indian Community v. Michigan, written by Meredith L. Jewitt.

Woolman and Deer on a Feminist Lawyering Approach to Protecting Native Mothers and Their Children

Matthew L.M. Fletcher1 Comment

Joanna Woolman and Sarah Deer have published “Protecting Native Mothers and Their Children: A Feminist Lawyering Approach” in the William Mitchell Law Review.

From the introduction:

A mother killing her child is a shocking event. In the United States, our child protection system seeks to prevent this type of horror, along with countless other acts that harm children. Despite having a system designed to protect children from harm, hundreds of children are killed by their mothers each year. Each death represents a failure of our systems and communities, and individuals within both, to protect children. The typical response to filicide tends to focus on the actions of the individual mother rather than the failures of the system. Our current criminal justice system often deals with these cases and mothers harshly, not taking into account the unique, gendered circumstances that lead a mother to this desperate act. Society is quick to place blame on the archetype of a selfish, unfeeling mother who kills a child because she feels inconvenienced by motherhood. Neonaticide, a subcategory of filicide, is particularly fraught with extremely negative life circumstances, including mental illness, substance abuse, and trauma. These circumstances, in many cases, could be recognized and remedied with the right intervention. We believe that holistic, feminist legal representation could achieve this
intervention in some cases, possibly preventing the extreme, tragic outcome of the death of a child.

New Scholarship by Seth Davis: “Tribal Rights of Action”

Matthew L.M. Fletcher

Seth Davis has posted “Tribal Rights of Action,” published in the Columbia Human Rights Law Review. Here is the abstract:

What power do the federal courts have to supply tribal rights of action when Congress has been silent? This Article answers that question by linking two seemingly disparate schools of thought: federal Indian law and tort theory. Focusing upon tribal rights of action forces us to correct significant misunderstandings about perennial debates concerning corrective justice, distributive justice, reparations, and the law of remedies.

My thesis is that there is a surprising and significant consonance between federal Indian law’s doctrines of federal obligation towards Tribes and the theory of civil recourse. Reflected in Marbury v. Madison’s famous right-remedy principle, civil recourse holds that in some instances the government has a duty to provide the victim of a wrong an avenue for redress. This Article argues that the federal government has a duty of civil recourse towards Tribes, arising from the treaty system and the contemporary constraints that Congress and the courts have imposed upon the exercise of tribal adjudicative authority. The duty to provide civil recourse distinguishes tribal rights of action from the United States’ own rights to sue in federal court, as well as federal rights of action for states, which can freely vindicate their interests in their own courts without regard to the limits the United States imposes upon the exercise of tribal sovereignty. The special federal duty to provide civil recourse may be fulfilled by Congress, which can expressly create a right of action. When Congress does not do so, the federal courts have a special competence and duty to imply tribal rights of action.