Scholarship

New Paper from Kirsty Gover, “Indigenous Membership and Human Rights: When Self-Identification Meets Self-Constitution”

Kate Fort

Here.

Abstract:

Rules and principles governing indigenous membership have a dual aspect. First, a group’s capacity to decide its own membership is an essential element of indigenous self-governance. Second, a person’s claim to membership is sometimes supported by human rights, especially the right to enjoy one’s culture in community with other members of a minority. Because of this duality, in some instances, the interests of a self-constituting group and the interests of a self-identifying individual are directly opposed. In this chapter I argue that international human rights norms, jurisprudence and methodologies have not generated principles that could assist states and tribes in the governance of indigenous membership disputes. While the structure and ideology of international human rights law is such that the interests of tribes (and tribal members) are almost always subordinated to the interests of aspirant members and the public, CANZUS states (the affluent western settler states of Canada, Australia, New Zealand and the United States) have been able to augment domestic human rights law in order to provide normative space for tribal self-constitution. This, I argue, contributes to the development of a distinctive settler-state political theory which is premised on the cardinal importance of indigeneity and tribalism in settler-state constitutionalism, and on the enduring relevance of descent as a source of political and legal status in settler societies. I draw primarily on examples from the public and tribal law of membership in the CANZUS states and on the jurisprudence of the Human Rights Committee that oversees the implementation of the International Covenant on Civil and Political Rights (the ICCPR). I take a closer look at the interplay of HRC jurisprudence and the domestic law of Canada, by examining the origins and aftermath of Lovelace v. Canada (HRC, 1981).

“40 Years of the Indian Civil Rights Act: Indigenous Women’s Reflections” From Gloria Valencia-Weber

Kate Fort1 Comment

Here. Published in The Indian Civil Rights Act at 40, eds. Kristen Carpenter, Matthew Fletcher, and Angela Riley.

Abstract:

I approach this discussion by noting that Santa Clara Pueblo v. Martinez raises two critical oppositional principles: the collective political right versus the individual rights norm. Individual rights are the keystone in the Constitution of the United States. However, tribal rights for collective political entities are also affirmed in the Constitution in the provisions that establish relationships with the tribal nations. This political, nation-to-nation relationship was explicitly acknowledged and reaffirmed in Morton vs. Mancari. The most important right that tribal people claim for themselves is that as sovereigns. We have to remember that tribes were first sovereigns within the United States. And, as the noted scholar Charles Wilkinson reminds us, the tribal sovereigns were pre-constitutional, post-constitutional, and, in the international law context of indigenous law, extra-constitutional.

Invited Solicitor General’s Brief in Young v. Fitzpatrick

Kate Fort

Brief filed in suit against Puyallup Police. Here.

Previous coverage here.

Classic and Recent Papers by Gloria Valencia-Weber Posted on SSRN

Matthew L.M. Fletcher

Well worth the read.

Tribal Courts: Custom and Innovative Law
24 N.M. L. Rev. 225 (1994), UNM School of Law Research Paper
 Gloria Valencia-Weber
University of New Mexico – School of Law
Date Posted: May 18, 2013

Domestic Violence and Tribal Protection of Indigenous Women in the United States
St. John’s Law Review , Vol. 69, p. 69, 1995, UNM School of Law Research Paper
 Gloria Valencia-Weber and Christine Zuni Cruz
University of New Mexico – School of Law and University of New Mexico – School of Law
Date Posted: May 17, 2013

Three Stories in One: The Story of Santa Clara Pueblo v. Martinez
Indian Law Stories, Carole Goldberg, Kevin K. Washburn & Philip P. Frickey, eds., 2011, UNM School of Law Research Paper
 Gloria Valencia-Weber
University of New Mexico – School of Law
Date Posted: May 17, 2013

Shrinking Indian Country: A State Offensive to Divest Tribal Sovereignty
Connecticut Law Review, Vol. 27, No. 4, 1995, UNM School of Law Research Paper
 Gloria Valencia-Weber
University of New Mexico – School of Law
Date Posted: May 17, 2013

Spring 2013 American Indian Law Journal Issue Now Available

Matthew L.M. Fletcher

Here:

Masthead
Fishable Waters Catherine A. O’Neill
Evidence Issues In Indian Law Cases Taylor S. Fielding
August 2011 – August 2012 Case Law on American Indians Thomas P. Schlosser
Sovereignty, Safety, and Sandy: Tribal Governments Gain (Some) Equal Standing Under The Hurricane Sandy Relief Act Heidi Adams
The Risks and Benefits of Tribal Payday Lending to Tribal Sovereign Immunity: Tribal Payday Lending Enterprises Are Immune Under A Proposed Universal Arm of The Tribe Test Bree Black Horse
An Unreserved Attack on Reserved Water Rights: The Story of the San Carlos Apache Tribe’s Water Rights (or Lack Thereof) Daniel Lee & Jacob Stender
Alaska Natives: Possessing Inherent Rights To Self-Governance and Self-Governing From Time Immemorial To Present Day Kristin McCarrey

Read the entire issue here (PDF).

Barbara Creel on the the Right to Counsel in Indian Country

Matthew L.M. Fletcher3 Comments

Barbara Creel has posted “The Right to Counsel for Indians Accused of Crime: A Tribal and Congressional Imperative,” published in the Michigan Journal of Race & Law (my law school journal!), on SSRN. Here is the abstract:

Native American Indians charged in tribal court criminal proceedings are not entitled to court appointed defense counsel. Under well-settled principles of tribal sovereignty, Indian tribes are not bound by Fifth Amendment due process guarantees or Sixth Amendment right to counsel. Instead, they are bound by the procedural protections established by Congress in the Indian Civil Rights Act of 1968. Under the Indian Civil Rights Act (ICRA), Indian defendants have the right to counsel at their own expense. This Article excavates the historical background of the lack of counsel in the tribal court arena and exposes the myriad problems that it presents for Indians and tribal sovereignty.

While an Indian has the right to defense counsel in federal criminal court proceedings, he does not in tribal court. This distinction makes a grave difference for access to justice for Americans Indians not only in tribal court, but also in state and federal courts. The Article provides in-depth analysis, background, and context necessary to understand the right to counsel under the ICRA and the U.S. Constitution. Addressing serious civil rights violations that negatively impact individual Indians and a tribe’s right to formulate due process, this Article ultimately supports an unqualified right to defense counsel in tribal courts.

Defense counsel is an indispensable element of the adversary system without which justice would not “still be done.” Tribes, however, were forced to embrace a splintered system of justice that required the adversary system but prohibited an adequate defense. The legacy of colonialism and the imposition of this fractured adversary system has had a devastating impact on the formation of tribal courts. This legacy requires tribal and congressional leaders to rethink the issue of defense counsel to ensure justice and fairness in tribal courts today. The Article concludes that tribes should endeavor to provide counsel to all indigent defendants appearing in tribal courts and calls upon Congress to fund the provision of counsel to reverse the legacy of colonialism and avoid serious human rights abuses.

Highly recommended!

Two Papers from Elizabeth Kronk

Matthew L.M. Fletcher1 Comment

Indian Claims and the Court of Federal Claims: A Legal Overview, Historical Accounting and Examination of the Court of Federal Claims’ and Federal Circuit’s Impact on Federal Indian Law
6 Journal of the Federal Circuit Historical Society 59 (2012)
 Elizabeth Ann Kronk
Abstract:

Many would argue that the history of the federal government’s relationship with Indian tribes is replete with examples of atrocities and shameful actions on the part of the federal government (which is not to say that Indian tribes have been historical angels). Through the Court of Federal Claims, and its predecessor the Indian Claims Commission, Indian tribes have been able to pursue monetary claims against the federal government for these historic and modern injustices. The history of Indian claims in the United States Court of Federal Claims is an interesting and multifaceted one. Although many Indian tribes regularly bring claims to the Court of Federal Claims today, this was not always the case. This article seeks to trace the history of Indian claims in the Court of Federal Claims and also discusses how decisions of the Court of Federal Claims and United States Court of Appeals for the Federal Circuit have significantly impacted the development of federal Indian law. To accomplish this goal, the article begins with a general examination of federal Indian law and of the history of Indian claims in the Court of Federal Claims. The article then examines some key decisions of the Court of Federal Claims and Court of Appeals for the Federal Circuit that have significantly impacted the development of federal Indian law.


One Statute for Two Spirits: Same-Sex Marriage in Indian Country
JURIST Forum, April 2013
 Elizabeth Ann Kronk

Abstract:

On March 15, 2013, the Little Traverse Bay Bands of Odawa Indians (LTBB) became the third tribal nation to recognize same sex unions. The LTBB statute, Waganakising Odawak Statute 2013-003, defines marriage as “the legal and voluntary union of two persons to the exclusion of all others.” The Coquille Tribe, in 2009, and Suquamish Tribe, in 2011, both previously recognized same sex unions. Unlike the Coquille Tribe, located within Oregon, and the Suquamish Tribe, located within Washington, LTBB’s tribal territory is located within Michigan, a state that does not currently recognize same sex marriages. Accordingly, some may question the authority of LTBB and similarly situated tribal nations to enact provisions, such as the Waganakising Odawak Statute 2013-003, that conflict with state policy. This article addresses issues surrounding the authority of tribal nations to enact provisions allowing for same-sex marriage or unions.

Copy of the OIN/NY State/County Agreement

Kate Fort1 Comment

The 79 page PDF is here

Via Syracuse.com.

Allison Dussias on American Indian Religious Freedom

Matthew L.M. Fletcher1 Comment

Allison Dussias has published “Friend, Foe, Frenemy: The United States and American Indian Religious Freedom” in the Denver University Law Review. Here is the abstract:

In 1990, the Supreme Court decided Employment Division v. Smith, in which the Court concluded that a claim that a neutral and generally applicable criminal law burdens religious conduct need not be evaluated under the “compelling interest” test set out by the Court in Sherbert v. Verner (1963). The Court relied on two recently decided cases, Bowen v. Roy (1986) and Lyng v. Northwest Indian Cemetery Protective Associa-tion (1988). All three of these cases rejected Free Exercise Clause claims brought by American Indians. Following the Smith decision, Congress enacted the Religious Freedom Restoration Act (RFRA) to restore the compelling interest test to all claims that the government has substantial-ly burdened religious exercise.

This Article analyzes and critiques the post-Smith responses to Indi-an religious freedom claims made by two groups: federal government officials making public lands management-related decisions and federal courts addressing claims related to Indian religious freedom. The primary focus is on claims involving sacred sites located on federal lands. These claims are in many ways unique to Indian religions, which, in contrast with mainstream religions, commonly share the belief that particular sites are imbued with sacredness and are consequently the only location at which certain ceremonies can be conducted. The presence of sacred sites on lands that were taken from tribes in the past to satisfy non-Indian re-source demands and are today held as public lands can lead to conflicts between Indian religious exercise rights and non-Indian desires to use the lands for commercial or recreational purposes.

First, the Article focuses on cases in which federal officials have taken account of Indian religious exercise needs in developing land man-agement plans and have subsequently faced Establishment Clause chal-lenges to their actions. Second, it examines cases in which officials have made decisions that burden Indian religious exercise on public lands, prompting challenges under RFRA. When confronting Establishment Clause challenges to management plans, the Government has emphasized the political and trust relationships between the United States and tribes, and has argued that accommodations appropriately alleviate government-imposed burdens on religious exercise. In responding to Indian claims that government decisions substantially, and unjustifiably, burden the plaintiffs’ religious exercise, however, the Government tells a different story. Courts have tended to side with the Government in both kinds of cases. Third, the Article discusses the lessons learned from this analysis about the need for heightened protection of religious exercise at sacred sites and offers suggestions on seeking a path toward ensuring that Indian religious practitioners are able to enjoy the level of religious freedom long provided to other Americans.

Columbia Law Review Article on Constitutionality of VAWA/TLOA-Type Statutes

Matthew L.M. Fletcher

Zachary S. Price has published “Dividing Sovereignty in Tribal and Territorial Criminal Jurisdiction” in the Columbia Law Review.

Here is the abstract:

In both federal Indian law and the law regarding United States territories, the Supreme Court in recent decades has shown increasing skepticism about previously tolerated elements of constitutionally unregulated local governmental authority. This Article proposes a framework for resolving constitutional questions raised by the Court’s recent cases in these areas. Focusing on the criminal context, where the stakes are highest both for individual defendants and for the affected communities, this Article considers three issues: (1) whether and under what circumstances Congress may confer criminal jurisdiction on tribal and territorial governments without requiring that those governments’ enforcement decisions be subject to federal executive supervision; (2) whether double jeopardy should bar successive prosecution by both the federal government and a tribal or territorial government exercising federally authorized criminal jurisdiction; and (3) what, if any, constitutional procedural protections apply when a tribal or territorial government exercises criminal jurisdiction pursuant to such federal authorization.

Through close examination of these three questions, this Article aims to show that framing the analysis in terms of divided sovereignty, and recognizing the close parallels between tribal, territorial, and related federal-state contexts, may yield the most attractive resolutions that are viable in light of the Supreme Court’s recent decisions. This Article contrasts this approach with an alternative framework that would organize the analysis around a distinction between “inherent” and “delegated” governmental authority.

Looks like a fascinating paper from a former OLC attorney. Will study with interest.