Scholarship

Bethany Berger on Race, Descent, and Tribal Membership

Matthew L.M. Fletcher

Bethany Berger has published “Race, Descent, and Tribal Membership” (PDF) in the California Law Review Circuit. Here is the description:

Connecticut School of Law Professor Bethany R. Berger looks at the relationship between descent-based tribal citizenship requirements and race or racism. She argues that tribal citizenship laws that require Indian or tribal descent are generally neither the product nor the source of racism in federal Indian law and policy, and instead are moral, legal, and consistent with federal and international norms.

Montana Lawyer Article on the Zepeda Case

Matthew L.M. Fletcher

Here, see pages 28-30.

Law Review Articles Relevant to the Baby Veronica Case

Matthew L.M. Fletcher1 Comment

We thought it would be helpful to make available a few useful law review articles that parse through the issues raised in the Baby Veronica case.

Indian Child Welfare Act: generally and legislative history

B.J. Jones, The Indian Child Welfare Act: In Search of a Federal Forum to Vindicate the Rights of Indian Tribes and Children against the Vagaries of State Courts, 73 N.D. L. Rev. 395 (1997) (PDF)

Patrice Kunesh-Hartman, The Indian Child Welfare Act of 1978: Protecting Essential Tribal Interests, 60 U. Colo. L. Rev. 131 (1989) (PDF)

Existing Indian Family Exception

Barbara Atwood, Flashpoints Under the Indian Child Welfare Act: Toward a New Understanding of State Court Resistance, 51 Emory L.J. 587 (2002) (PDF)

Christine Metteer, The Existing Indian Family Exception: An Impediment to the Trust Responsibility to Preserve Tribal Existence and Culture as Manifested in the Indian Child Welfare Act, 30 Loy. L. A. L. Rev. 647 (1997) (PDF)

ICWA Constitutionality

Matthew L.M. Fletcher, ICWA and the Commerce Clause, in The Indian Child Welfare Act at 30: Facing to the Future (2009) (PDF)

 

 

New Student Scholarship on VAWA’s Tribal Jurisdiction Provisions

Matthew L.M. Fletcher

Laura Saylor has posted “Back to Basics: Special Domestic Violence Jurisdiction in the Violence Against Women Reactivation Act of 2013 and the Expansion of Inherent Tribal Sovereignty” on SSRN.

Here is the abstract:

Indian Country is home to some of the highest rates of violent crime in the United States. Specifically, Indian women are at least twice as likely as women in any other demographic in the United States to be victims of domestic violence, dating violence, and sexual violence, and most Indian women report that their attacker was non-Native. On March 7, 2013, President Obama signed the Violence Against Women Reactivation Act of 2013, which contained provisions to help alleviate this crisis in Indian County. These provisions include Sections 904 and 905, which outline special criminal jurisdiction over certain non-Indian perpetrators of domestic violence, dating violence, and sexual violence in Indian Country. This Student Note proposes a method of interpretation of Sections 904 and 905 and argues that, upon a constitutional challenge to this special domestic violence jurisdiction, the Supreme Court should find that that these provisions validly expand inherent tribal sovereignty and do not represent a delegation of Congressional power. To reach this conclusion, Court should first return to the texts that form the foundation of tribal sovereignty, namely the Constitution and the Marshall Trilogy. Incorporating these early principles of robust inherent tribal sovereignty, the Court should then look to the legislative intent of Congress, as it has many times in Federal Indian law, to confirm that Congress has validly exercised its power to expand inherent tribal sovereignty. However, in explicating Congress’ power to enact such legislation, this Note further proposes that the Court should clarify that Sections 904 and 905 are consistent with a more limited understanding of Congress’ power to legislate in Indian Country that requires legislation to be rationally related to Congress’ unique obligations to the Indian tribes. Thus, on a constitutional challenge, this Note argues that the Court should uphold Sections 904 and 905 because they are both a valid exercise of Congress’ power to expand tribal inherent sovereignty and consistent with Congress’ unique obligations to the tribes.

Marcia Zug on the Adoptive Couple Case

Matthew L.M. Fletcher1 Comment

Marcia Zug has published “Adoptive Couple v. Baby Girl: Two-and-a-Half-Ways to Destroy Indian Law” in Michigan Law Review’s First Impressions.

The synopsis:

In December 2011, Judge Malphrus of the South Carolina family court ordered Matt and Melanie Capobianco to relinquish custody of Veronica, their two-year-old, adopted daughter, to her biological father, Dusten Brown. A federal statute known as the Indian Child Welfare Act (“ICWA”) mandated Veronica’s return.  However, the court’s decision to return Veronica pursuant to this law incited national outrage and strident calls for the Act’s repeal. While this outrage was misplaced, it may nonetheless have influenced the U.S. Supreme Court’s decision to hear the appeal. The case of Adoptive Couple v. Baby Girl is emotionally complicated, but it is not legally complex. Therefore, the Court’s interest is surprising and likely means that this case will determine more than the fate of a single child.

The court returned Veronica Capobianco to her biological father because the termination of his parental rights and the subsequent adoption attempt did not comply with the requirements of ICWA. South Carolina law would have permitted the involuntary termination of Brown’s parental rights, but ICWA supersedes state law and forbids such involuntary terminations. Consequently, because Brown never relinquished his rights, the family court held that Veronica was not eligible for adoption and that she must be returned to Brown. The South Carolina Supreme Court subsequently affirmed this decision. The court agreed that under the clear language of the Act, Brown qualified as a “parent” and that the termination of his parental rights must comply with ICWA.

Kyle Whyte — “Justice Forward: Tribes, Climate Adaptation and Responsibility”

Matthew L.M. Fletcher

Kyle Whyte has posted yet another paper, “Justice Forward: Tribes, Climate Adaptation and Responsibility,” on SSRN. It is forthcoming in Climatic Change.

Here is the abstract:

Federally-recognized tribes must adapt to many ecological challenges arising from climate change, from the effects of glacier retreat on the habitats of culturally significant species to how sea leave rise forces human communities to relocate. The governmental and social institutions supporting tribes in adapting to climate change are often constrained by political obstructions, raising concerns about justice. Beyond typical uses of justice, which call attention to violations of formal rights or to considerations about the degree to which some populations may have caused anthropogenic climate change, a justice framework should guide how leaders, scientists and professionals of all heritages and who work with or for federally-recognized tribes understand what actions are morally essential for supporting tribes’ adaptation efforts. This paper motivates a shift to a forward-looking framework of justice. The framework situates justice within the systems of responsibilities that matter to tribes and many others, which range from webs of inter-species relationships to government-to-government partnerships. Justice is achieved when these systems of responsibilities operate in ways that support the continued flourishing of tribal communities.

Meanwhile, Over at Another Blog

Kate Fort

I am periodically posting about teaching, writing, ICWA, and the Baby Veronica case over at The Faculty Lounge. I put up my second post today.

Blast from the Past: 1939 Oberlin College Master’s Thesis: “Decline of Indian Tribal Sovereignty in the Nineteenth Century”

Matthew L.M. Fletcher1 Comment

Interesting read, in that it comes right as World War II began and reads like it could have been written in the modern era. Also includes the text of the letter from President Jackson to Georgia Gov. Lampkin strongly implying he ought to let Samuel Worcester et al. go home:

Decline of Indian Tribal Sovereignty in the Nineteenth Century

New Scholarship on Native Hawaiian Land Disputes

Matthew L.M. Fletcher1 Comment

The Cardozo Journal of Conflict Resolution has published “Hawaiian Land Disputes: How the Uncertainty of the Native Hawaiian Indigenous Tribal Status Exacerbates the Need for Mediation,” a student note (PDF).

From the intro:

Many people see the Hawaiian Islands as a paradise in the Pacific Ocean.1 However, most are unaware that history has left an unpleasant and permanent scar on the original inhabitants of the islands, the Native Hawaiians. It is often forgotten that the islands were once ruled by its monarchy. In fact, the Hawaiian Kingdom was not overthrown until 1893,2 and the islands did not reach statehood until 1959.3 Despite this however, Native Hawaiians have never officially been considered an indigenous tribe.4 This lack ofrecognition from the federal government has caused a strong sense of injustice that is prevalent throughout the Native Hawaiian community.5

Wenona Singel: “Indian Tribes and Human Rights Accountability”

Matthew L.M. Fletcher5 Comments

Our own Wenona T. Singel has posted her paper, “Indian Tribes and Human Rights Accountability,” on SSRN. The San Diego Law Review recently published it.

Here is the abstract:

In Indian country, the expansion of self-governance, the growth of the gaming industry, and the increasing interdependence of Indian and non-Indian communities have intensified concern about the possible abuse of power by tribal governments. As tribes gain greater political and economic clout on the world stage, expectations have risen regarding the need for greater government accountability in Indian country. Despite these expectations, Indian tribes are largely immune from external accountability with respect to human rights. In fact, tribes have effectively slipped into a gap in the global system of human rights responsibility. The gap exists in the sense that tribal governments are not externally accountable in any broad sense for abuses of human rights that they commit. The failure of the legal system to provide for tribal accountability for human rights produces serious harms for Indian tribes and their polities. In this Article, I argue that the conventional understanding of tribal sovereignty must be reformed to reflect the transformative international law principle that all sovereigns are externally accountable for human rights violations. I then offer a proposal based on tribal accountability and respect for tribal sovereignty. I propose that tribes develop an intertribal human rights regime that includes the formation of an intertribal treaty recognizing tribal human rights obligations and establishing an intertribal institution with the capacity to enforce human rights violations. An intertribal human rights regime offers the best possible method for providing external accountability for tribal abuses of human rights. It allows tribes to address human rights violations without relying upon solutions supplied or imposed by the federal government. It also allows tribes to articulate and interpret universal human rights in light of their cultural, philosophical, spiritual, political, and social perspectives, and it allows them to develop effective and culturally appropriate institutional enforcement mechanisms.

You may recall that Michigan State Law Review hosted a symposium on Wenona’s paper. We will post those papers as soon as they’re published.