Scholarship

Harvard Law Review Profile of the VAWA Tribal Jurisdiction Provisions

Matthew L.M. Fletcher3 Comments

The Harvard Law Review has published “Congress Recognizes and Affirms Tribal Courts’ Special Domestic Violence Jurisdiction over Non-Indian Defendants. — The Violence Against Women Reauthorization Act of 2013, Pub. L. No. 113-4, tit. IX, 127 Stat. 54, 118–26 (to be codified in scattered sections of the U.S. Code)” (PDF).

From the conclusion:

From a practical standpoint, section 904 does not release a substantial amount of power back to the tribes; it is a cautious experiment, not a revolution. Indeed, section 904 is primarily a statement about values — the value of tribal sovereignty, the value of liberal ideals, the proper balance between them, and above all, Congress’s role in fixing that balance. By aligning section 904 so closely with the Court’s previously expressed concerns, Congress leaves the Court with no choice but to accept its calibration of these important values, and consequently, its privileged role in setting federal Indian policy.

Important New Scholarship: “Consumer Credit on American Indian Reservations”

Matthew L.M. Fletcher

Valentina P. Dimitrova-Grajzl (Virginia Military Institute), Peter Grajzl (Washington and Lee University – Department of Economics), A. Joseph Guse (Washington and Lee University – Williams School of Commerce, Economics, and Politics), and Richard M. Todd (Federal Reserve Bank of Minneapolis) have posted “Consumer Credit on American Indian Reservations” on SSRN.

Here is the abstract:

Access to consumer credit on American Indian reservations has been a longstanding concern and yet measurement of consumer credit on reservations is scarce and incomplete. This paper draws on a unique large-scale consumer credit database to provide the first encompassing quantitative picture of consumer credit in Indian country. We find that credit files on reservations are somewhat more likely to lack a credit risk score; in our data the Equifax Risk Score. Furthermore, Equifax Risk Scores and the use of certain forms of credit, especially mortgages, are low on reservations. However, usage of other forms of credit is not always low on reservations. Moreover, the gaps in credit usage on versus off reservations differ significantly across states and can change notably over time. Finally, race, age, education, unemployment, income, and the allocation of jurisdiction over legal matters are important predictors of consumer credit outcomes.

Highly recommended work.

Michigan State Law Review Symposium on Wenona Singel’s “Indian Tribes and Human Rights Accountability”

Matthew L.M. Fletcher

Michigan State Law Review has published several articles from its symposium on Wenona Singel’s paper “Indian Tribes and Human Rights Accountability.”

Tribal Rights, Human Rights

Kristen A. Carpenter & Angela R. Riley

2013 Mich. St. L. Rev. 293 | Download PDF

Nenabozho’s Smart Berries: Rethinking Tribal Sovereignty and Accountability

Heidi Kiiwetinepinesiik Stark

2013 Mich. St. L. Rev. 339 | Download PDF

Jurisdiction and Human Rights Accountability in Indian Country

Kirsten Matoy Carlson

2013 Mich. St. L. Rev. 355 | Download PDF

First “Review” of Scholarly Promise and Achievement

Frank Pommersheim

2013 Mich. St. L. Rev. 291 | Download PDF

Tribal Sovereignty and Human Rights

Joseph William Singer

2013 Mich. St. L. Rev. 307 | Download PDF

A Most Grievous Display of Behavior: Self-Decimation in Indian Country

David E. Wilkins

2013 Mich. St. L. Rev. 325 | Download PDF

Healing to Wellness Courts: Therapeutic Justice

Joseph Thomas Flies-Away & Carrie E. Garrow

2013 Mich. St. L. Rev. 403 | Download PDF

 

Carpenter & Riley: “Indigenous Peoples and the Jurisgenerative Moment in Human Rights”

Matthew L.M. Fletcher

Kristen A. Carpenter & Angela R. Riley have published “Indigenous Peoples and the Jurisgenerative Moment in Human Rights” (PDF) in the California Law Review.

Here is the abstract:

As indigenous peoples have become actively engaged in the human rights movement around the world, the sphere of international law, once deployed as a tool of imperial power and conquest, has begun to change shape. Increasingly, international human rights law serves as a basis for indigenous peoples’ claims against states and even influences indigenous groups’ internal processes of decolonization and revitalization. Empowered by a growing body of human rights instruments, some as embryonic as the 2007 United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), indigenous peoples are embracing a global “human rights culture” to articulate rights ranging from individual freedom and equality to collective self-determination, property, and culture. Accordingly, this Essay identifies and provides an account of what we see as an unprecedented, but decidedly observable, phenomenon: the current state of indigenous peoples’ rights-manifesting in tribal, national, and international legal systems-reflects the convergence of a set of dynamic, mutually reinforcing conditions. The intersection of the rise of international human rights with paradigm shifts in postcolonial theory has, we argue, triggered a “jurisgenerative moment” in indigenous rights. Bringing indigenous norms and values to their advocacy, indigenous peoples have worked to assert their voices in, and indeed to influence, the human rights movement. Indigenous peoples are now using the laws and language of human rights, shaped by indigenous experiences, not only to engage states but also as a tool of internal reform in tribal governance. This is, in our view, a jurisgenerative moment in indigenous rights-a moment when both the concept and practice of human rights have the potential to become more capacious and reflect the ways that individuals and peoples around the globe live, and want to live, today.

 

Student Scholarship on Jurisdictional, Environmental, and Religious Considerations of Hydraulic Fracturing on Tribal Lands

Matthew L.M. Fletcher1 Comment

The BYU Law Review has published “The Tribes Must Regulate: Jurisdictional, Environmental, and Religious Considerations of Hydraulic Fracturing on Tribal Lands” (PDF).

UCLA American Indian Studies Conference — March 7, 2014

Matthew L.M. Fletcher

Here. Fletcher et al. papers to be discussed (“Tribal Disruption and Indian Claims“; “(Re)Solving the Tribal No-Forum Conundrum: Michigan v. Bay Mills Indian Community“; and “Tribal Disruption and Labor Relations“), and panel:

Plenary 1: Innovations in Law

  • Kristen A. Carpenter, Associate Professor of Law, Co-Director of American Indian Law Program, University of Colorado, Boulder
  • Carole E. Goldberg, Vice Chancellor, UCLA Academic Personnel, and Jonathan D. Varat Distinguished Professor of Law, UCLA School of Law
  • Matthew L.M. Fletcher, Professor of Law, Director of the Indigenous Law & Policy Center, Michigan State University
  • Moderator: Angela R. Riley, Professor, UCLA School of Law, and Director, UCLA American Indian Studies Center

Kronk Warner and Abate on Climate Justice for Arctic Indigenous Peoples

Matthew L.M. Fletcher

Elizabeth Kronk Warner and Randall Abate have posted “International and Domestic Law Dimensions of Climate Justice for Arctic Indigenous Peoples,” published in the Ottawa Law Review. Here is the abstract:

Climate change is disproportionately impacting Arctic American indigenous peoples. Consequently, these communities are environmental justice communities. The environmental justice claims of Arctic American indigenous peoples result from the effects of climate change intersecting with indigenous peoples’ human rights. In order to explore these realities more fully, part I of this article discusses how American indigenous nations are environmental justice communities and discusses the unique factors that may apply to environmental justice claims arising in Indian country. The article then presents two case studies to explore how, if at all, these concepts have been previously applied to environmental justice claims brought by various American indigenous communities. Part II addresses the Inuit Circumpolar Conference’s (ICC) petition to the Inter-American Commission on Human Rights (IACHR) in December 2005. Part III considers the Native Village of Kivalina’s lawsuit filed in federal court in the United States in February 2008 against numerous private emitters of greenhouse gases.

Although the ICC and Kivalina claims involve different forums, defendants, and legal theories, both were brought by American indigenous communities in response to the negative impacts of climate change on their communities. Accordingly, evaluation of the ICC’s and Kivalina’s claims is helpful in understanding how environmental justice as applied to indigenous communities may include consideration of factors not applicable to environmental justice claims raised by other environmental justice communities.

Moreover, this article will underscore how Arctic American indigenous peoples’ environmental justice claims also involve human rights dimensions, as climate change is destroying their environment and, as a result, their culture. As fully explained in part I, environmental justice claims arising in Indian country must take into consideration indigenous sovereignty, the federal trust relationship and the unique connection between many indigenous communities and their land and environment. In both of the case studies examined here, the legal forums failed to take these legal factors into consideration. As a result, the indigenous communities suffered.

Kronk Warner on Tribes as Environmental “Laboratories”

Matthew L.M. Fletcher1 Comment

Elizabeth Kronk Warner has posted “Tribes as Innovative Environmental ‘Laboratories‘” on SSRN.

Here is the abstract:

Indian tribes, because of their distinctive regulatory authority and significant connection to the environment, possess unique capacities to innovate within the field of environmental law in the over 56 million acres that makes up Indian country. In this first scholarly work to address this aspect of tribal environmental law, this article advocates for the idea of tribes as “laboratories” for examining environmental regulation. Tribes enact environmental regulation by two primary means – in their capacity as “tribes as states” (TAS) and in their capacity as inherent sovereigns – both of which create unparalleled space for innovation. Moving first to the TAS setting, the article examines synergies between federal and tribal environmental law. Following an expansive discussion of laws adopted by several tribes under their TAS authority, the article next turns to a discussion of the implications of tribal environmental innovations. Here, the article begins by looking at the emerging trends in tribal adaptation of federal environmental law. The article turns next to a look at tribal environmental law adopted purely as a result of tribal inherent sovereignty. Here, the article begins the foundational discussion of how tribes may take lessons learned from the TAS setting and, by the exercise of inherent sovereignty, truly be innovators in the development of environmental law. The article then develops some initial thoughts of how tribes, the states and the federal government may benefit from innovations occurring within the tribal environmental laboratory. Tribal environmental law is particularly exciting given its ability to transcend federal environmental law. Ultimately, the article concludes that, by enacting environmental laws to meet their unique tribal needs, many tribes are creating and innovating in the field under their unique powers as separate sovereigns within the United States, truly acting as laboratories of the future.

Kristen Carpenter and Lorie Graham on Human Rights and Adoptive Couple v. Baby Girl

Matthew L.M. Fletcher

Kristen Carpenter and Lorie Graham have posted a very compelling and powerful paper about the Supreme Court’s decision in Adoptive Couple v. Baby Girl. It is required reading for anyone interested in the case, and is destined to be the definitive paper on the international human rights aspects of the case.

The article is titled Human Rights to Culture, Family, and Self-Determination: The Case of Adoptive Couple v. Baby Girl. Here is the abstract:

The well-being of indigenous children is a subject of major concern for indigenous peoples and human rights advocates alike. In 2013, the U.S. Supreme Court decided in Adoptive Couple v. Baby Girl that the Indian Child Welfare Act did not prevent the adoption of a Cherokee child by a non-Indian couple. This occurred over the objections of her Cherokee biological father, extended family, and Tribal Nation. After the decision, Baby Girl’s father and the adoptive couple contested the matter in a number of proceedings, none of which considered the child’s best interests as an Indian child. The tribally-appointed attorney for Baby Girl, as well as the National Indian Child Welfare Association and National Congress for American Indians, began examining additional venues for advocacy. Believing that the human rights of Baby Girl, much like those of other similarly situated indigenous children, were being violated in contravention of the United Nations Declaration on Indigenous Peoples Rights, and other instruments of international law, they asked us to bring the matter to the attention of the United Nations Special Rapporteur for Indigenous Peoples Rights (“UNSR”). We prepared a “statement of information” to alert the UNSR of the human rights violations occurring in the case. With the permission of the attorneys and organizations involved, this chapter introduces the Baby Girl case, contextualizes the claims in international human rights law, and then reproduces the statement of information, and portions of the UNSR’s subsequent public statement. It concludes with an update on the Baby Girl case and broader discussion about the potential for using international law and legal forums to protect the human rights of indigenous children.

Kirsten Carlson Awarded National Science Foundation to Study Congress and Indian Law Legislation

Matthew L.M. Fletcher

Here.

Amazing news for Professor Carlson! Her project is titled, “Legal Mobilization, Rights Claims, and Federal Indian Policy Reforms.”