Scholarship

New Scholarship by Mary Wood: “Tribal Trustees in Climate Crisis”

Matthew L.M. Fletcher

Mary C. Wood has posted “Tribal Trustees in Climate Crisis” on SSRN. It is forthcoming in the American Indian Law Journal. Here is the abstract:

The legal “cornerstone” of federal Indian law is the federal trust obligation. The duty was formulated by courts long ago to protect native nations against federal actions that harm the retained tribal property and resources. Yet in recent years, courts have diminished the force of the doctrine by equating it, for all practical purposes, with statutory standards. This essay turns attention to another doctrine, the public trust doctrine, which characterizes sovereigns as trustees of their resources. The public trust framework positions tribes as co-trustees with states and the federal government. This article suggests a role for tribes in climate crisis by asserting the right of co-trustees and co-tenants to prevent waste of the common resource – the atmosphere.

Resources Related to FBA 2014 Ethics Panel — Later Today

Matthew L.M. Fletcher

I will be talking about many of the ideas expressed in a draft paper, “Bullshit and the Tribal Client.”

I also highly recommend Carpenter and Eli’s paper on tribal lawyering.

I will also pitch membership in the Tribal In-House Counsel Association.

New Scholarship on Tribal Membership and Race by Sarah Krakoff

Matthew L.M. Fletcher

Sarah Krakoff posted “Constitutional Concern, Membership, and Race” on SSRN. It is forthcoming in the Florida International Law Review.

The abstract:

American Indian Tribes in the United States have a unique legal and political status shaped by fluctuating federal policies and the over-arching history of this country’s brand of settler-colonialism. One of the several legacies of this history is that federally recognized tribes have membership rules that diverge significantly from typical state or national citizenship criteria. These rules and their history are poorly understood by judges and members of the public, leading to misunderstandings about the “racial” status of tribes and Indian people, and on occasion to incoherent and damaging decisions on a range of Indian law issues. This article, which is part of a larger project on tribes, sovereignty, and race, will discuss the history of Florida’s tribes, their road from pre-contact independent peoples to federally recognized tribes, and their contemporary membership criteria in order to shed light on the inextricably political nature of race, membership and sovereignty in the American Indian context.

 

WSBA Indian Law Section Spring 2014 Newsletter

Matthew L.M. Fletcher

Here.

B.J. Jones & Christopher Ironroad on Sentencing Disparities for Dakota Citizens

Matthew L.M. Fletcher1 Comment

Here:

89 N.D. L. Rev. 53
Addressing Sentencing Disparities for Tribal Citizens in the Dakotas: A Tribal Sovereignty Approach
– BJ Jones & Christopher J. Ironroad

The abstract:

Native Americans in the Dakotas can receive criminal sentences in federal courts that are harsher than sentences meted out for similar conduct in state courts. The reason for this is the historical role the federal government has played in determining justice issues in tribal communities. Although the federal government oftentimes sought tribal input into justice issues in tribal communities, that input has not been sought in the area of sentencing of natives for offenses in federal courts, with some limited exceptions (death penalty and career offender sentencing). This Article argues a need to change this practice and that Indian tribes, through an opt-in provision similar to other tribal opt-in provisions in the criminal justice arena, should have a right to dictate more equitable sentencing for their members when the sentencing disparity is stark and exists only because federal jurisdiction lies. Such a remedy to disparate sentencing would not impact the prosecution of crime in tribal communities, but instead would ensure that native persons do not receive more punitive sentences merely because of their status as American Indians. Because of the unique trust relationship between the United States and American Indian tribes, the United States has a legal and moral imperative to address this issue, similar in regards to the disparity in federal sentences for crack versus powder cocaine offenses, which had a disproportionate impact upon African-Americans. In particular, this Article examines the sentencing of a young native woman on the Fort Berthold reservation who was prosecuted for the death of an infant child and sentenced in accordance with federal guidelines that appear to be far out of proportion to similar sentences in state courts. This Article suggests that a remedy for prior sentences be considered by Congress in light of the hesitancy of the executive branch to utilize its clemency powers to correct Native American sentencing injustices.

Gregory Gagnon on Chthonic Law in American Indian Law

Matthew L.M. Fletcher

Here:

89 N.D. L. Rev. 29
American Indian Law: A Discourse on Chthonic Law
– Gregory Gagnon

The abstract:

This discourse on Chthonic Law, a theory propounded by H. Patrick Glenn among others, is the occasion for describing advantages and disadvantages of the introduction of customary American Indian law (Chthonic law) into the courtroom. Remarks on the theory, considerations of its merits and weaknesses and illustrations from American Indian societies lead to the conclusion that Chthonic law should become part of the admissible evidence in American courts. A major criticism of Chthonic Law theory is that it tends to describe a fictionalized version of society. Examples of American Indian violence, use of punishment, and private property law counter the idyllic construction of Chthonic law. Examples of the actual operation of a different legal system do exist, particularly the use of compensation and the justice goal of restoration after offenses. Chthonic law theory, if modified can be of use to American Indian plaintiffs.

Fletcher: “Bullshit and the Tribal Client”

Matthew L.M. Fletcher9 Comments

I’ll be presenting aspects of a draft paper, “Bullshit and the Tribal Client,” at Federal Indian Bar next week. Here is the abstract:

While it is well established that lawyers may not lie to their clients, it is not well established whether counsel can bullshit their potential and active clients. I do not mean bullshit as a term of abuse, but rather as philosopher Harry Frankfurt meant it. Frankfurt identified politicians and public relations professionals as examples of modern day bullshitters. Politicians and PR professionals care only about reaching their goals, and while that may include telling lies, it definitely includes making statements that no one can possibly know is true or not. All that matters is the outcome. Lawyers are bullshitters, too. And lawyers utilize bullshit for the same reason politicians do – to persuade someone to select them. Politicians want a vote; lawyers want a client. In American Indian law and policy, lawyers are not the only bullshitters – elected tribal officials are politicians, too, and many of them are bullshitters as well.

While there is a lot of bullshit going around, I am mostly (but not entirely) concerned about bullshit from outside counsel, often specialized counsel, directed at tribal clients. This paper is intended to identify areas where counsel employs bullshit when dealing with tribal clients. By counsel I mean both outside counsel and in-house counsel, and by clients I include both in-house counsel and tribal leadership. The relationship between in-house counsel and most, if not quite all, tribal government clients renders tribal clients uniquely vulnerable to bullshit by outside counsel. I offer suggestions, mostly for the benefit of in-house counsel, on how to deal with bullshit from both outside counsel and tribal officials. However, I will be the first to acknowledge that in-house may be placed in a no-win scenario, especially once appellate specialists take control of a case involving tribal interests.

Substantive comments welcome.

On another note, I recommend learning more about and perhaps joining the Tribal In-House Counsel Association.

“Considerations for Climate Change and Variability Adaptation on the Navajo Nation”

Matthew L.M. Fletcher

Julie Nania & Karen Cozzetto have published “Considerations for Climate Change and Variability Adaptation on the Navajo Nation,” a report coming out of the Getches-Wilkinson Center at CU Law.

The report pdf is here.

New Student Scholarship on Treaty Rights as Intangible Cultural Property

Matthew L.M. Fletcher1 Comment

The Oregon Law Review has published New Ways to Fulfill Old Promises: Native American Hunting and Fishing Rights as Intangible Cultural Property.

Here is an excerpt:

Current law and policy in the United States has failed to develop a framework that accounts for the unique nature of intangible cultural heritage. Therefore, intangible cultural heritage, such as Native American hunting and fishing rights, lacks adequate protection. However, international laws—such as the United Nations Declaration on the Rights of Indigenous Peoples, and the United Nations Educational, Scientific, and Cultural Organization (UNESCO) Convention for the Safeguarding of Intangible Cultural Heritage—can help United States lawmakers develop a framework that recognizes Native American hunting and fishing rights as intangible cultural heritage, and adequately protects them as such.

Allegheny College Conference: “Democracy Realized? The Legacies of the Civil Rights Movement”

Matthew L.M. Fletcher

Description here.

I’ll be presenting a survey paper on tribal justice systems. Paper here.

Home of the Allegheny Alligators

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