Scholarship

“Is Texas Hold ‘Em a Game of Chance?”: Georgetown Law Journal

Matthew L.M. Fletcher

Here’s a new article in the Georgetown Law Journal asking whether poker is a game of chance or skill, with implications on the enforcement of the Unlawful Internet Gambling Enforcement Act. Here is the abstract:

In 2006, Congress passed the Unlawful Internet Gambling Enforcement Act (UIGEA), prohibiting the knowing receipt of funds for the purpose of unlawful gambling. The principal consequence of the UIGEA was the shutdown of the burgeoning online poker industry in the United States. Courts determine whether a game is prohibited gambling by asking whether skill or luck is the “dominant factor” in the game. We argue that courts’ conception of a dominant factor— whether chance swamps the effect of skill in playing a single hand of poker—is unduly narrow. We develop four alternative tests to distinguish the impact of skill and luck, and we test these predictions against a unique data set of thousands of hands of Texas Hold ‘Em poker played for sizable stakes online before the passage of the UIGEA. The results of each test indicate that skill is an important influence in determining outcomes in poker. Our tests provide a better framework for how courts should analyze the importance of skill in games, and our results suggest that courts should reconsider the legal status of poker.

View .pdf for full Article.

Now we’ll have to fend off the online gaming spammers inundating our comments….

New Scholarship on Allowing Tribes to Declare Bankruptcy

Matthew L.M. Fletcher

Here is a new student article, “Shooting Craps: How Denying Tribal Casinos Bankruptcy Relief Ensures that Everyone Loses and a New Rule to Provide Potential Chapter 11 Relief,” available on SSRN. It will be published in the Temple Law Review.

Here is the abstract:

In August 2012, the Bankruptcy Court for the Southern District of California dismissed a Chapter 11 petition filed by the Santa Ysabel Resort and Casino finding that the casino was an ineligible debtor under the Bankruptcy Code. This Essay critiques the decision of the Bankruptcy Court and suggests that tribal casinos should not be summarily excluded from filing for bankruptcy. This is because the federal Indian Gaming and Regulatory Act dictates the corporate form of Indian casinos but potentially excludes them as eligible debtors.

Instead, this Essay proposes a new rule that courts should use when evaluating Tribal Casinos as semi-sovereign entities in Chapter 11 proceedings. Ultimately, this rule would allow certain tribal casinos to avail themselves of bankruptcy protection while still complying with federal law.

Fletcher on American Indian Legal Scholarship

Matthew L.M. Fletcher

The California Law Review Circuit published my meta-paper, American Indian Legal Scholarship and the Courts: Heeding Frickey’s Call. PDF here.

The description:

Michigan State University College of Law Professor Matthew L.M. Fletcher examines the late Berkeley Law Professor Philip P. Frickey’s call for more grounded and empirical American Indian legal scholarship. Fletcher analyzes the state of American Indian legal scholarship that led to Frickey’s call and the impact that Frickey’s call has had since.

Kristen Carpenter and Angela Riley: “The Jurisgenerative Moment in Indigenous Human Rights”

Matthew L.M. Fletcher

Kristen A. Carpenter and Angela R. Riley have posted their paper, “The Jurisgenerative Moment in Indigenous Human Rights,” on SSRN. It is forthcoming 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. International human rights law is now serving as a basis for indigenous peoples’ claims against states and even influencing indigenous groups’ internal processes of decolonization. In this Article, we set out to document and provide a theoretical account of an unprecedented, but decidedly observable, phenomenon: the current moment in indigenous human rights law – manifesting at the tribal, national, and international levels – reflects the convergence of a set of inter-dynamic, mutually reinforcing conditions. The intersection of the rise of international human rights with paradigm shifts in post-colonial theory has, we argue, triggered a “jurisgenerative moment” in human rights law, one that pervades law-making at every level of human experience, and now recognizes indigenous peoples not only as subjects of human rights law entitled to individual rights in the conventional sense but also as “peoples” with interests in self-determination, equality, and cultural survival. Beyond identifying and framing this current moment, this Article also begins to bridge vital conversations occurring among contemporary international law scholars, on the one hand, and indigenous legal scholars on the other, about the formation of human rights law and the extent to which it makes a difference. Using examples of legal implementation on the ground, we examine indigenous human rights development at the tribal, national, and international levels. Through this account — historical, descriptive, theoretical, and exemplary — we describe a jurisgenerative moment in human rights taking shape in indigenous communities today, with the capacity to change the way we think about and realize human rights for all people.

Kate Fort: “The Vanishing Indian Returns: Tribes, Popular Originalism, and the Supreme Court”

Matthew L.M. Fletcher3 Comments

Our own Kathryn E. Fort has posted her paper, “The Vanishing Indian Returns: Tribes, Popular Originalism, and the Supreme Court,” on SSRN. It was published in the St. Louis Law Journal.

Here is the abstract:

As the nation faces cultural divides over the meaning of the “Founding,” the Constitution, and who owns these meanings, the Court’s embrace of originalism is one strand that feeds the divide. The Court’s valuing of the original interpretation of the Constitution has reinforced the Founder fetishism also found in popular culture, specifically within the politics of those identified as the Tea Party. As addressed elsewhere, their strict worship of the Founders has historical implications for both women and African Americans, groups both marginalized and viewed as property in the Constitution. No one, however, has written about how the Court’s cobbled historical narrative and their veneration for the Founders have affected American Indian tribes. Tribes  barely exist in the Constitution, and the Founders’ “original” understanding of tribes was that they would inevitably disappear.

The “vanishing Indian” stereotype, promulgated in the early Republic, and reaching an apex in the 1820’s, continues to influence fundamentally how the Court views tribes. Compressing history from the Founding through the  Jacksonian era undermines tribal authority and sovereignty within the Court. In its federal Indian law cases, the Court relies on racial stereotypes and popular conceptions of American history. As a result of these shortcuts, the Court folds all tribes into one large group, empties the American landscape of tribal  peoples, and forces tribes into a past where they only exist to disappear.

New Scholarship on Domestic Violence and Alaska Natives

Matthew L.M. Fletcher1 Comment

Laura S. Johnson has published “Frontier of Injustice: Alaska Native Victims of Domestic Violence” (PDF) in American University Law School’s “The Modern American.”

An excerpt:

This paper will present three pieces of a strategy to better combat domestic violence in Alaska Native communities. First, cooperation among sovereigns is critical to ensure that laws are enforced. Second, effective law enforcement can be enhanced by creative, community-based, culturally-sensitive models that respond to domestic violence through alternate forms of dispute resolution in Alaska Native communities such as tribal courts. The State of Alaska should actively encourage the development of tribal courts to offer victims alternative forms of dispute resolution because they can offer victims more immediate, culturally-sensitive and community-based remedies. And finally, Alaska Native tribes should exercise regulatory civil jurisdiction over domestic violence crimes in their communities to help Alaska Native victims of domestic violence achieve justice and be protected from their abusers. Part I lays the foundation for a discussion of legal remedies available to Native Alaskans by briefly examining the limitations on tribal jurisdiction in Alaska. Part II presents the remedies that are currently available to Alaska Native victims of domestic violence. Part III expands from the Alaska Supreme Court’s monumental decision in John v. Baker to argue that Alaska’s courts should recognize tribal jurisdiction in domestic violence cases just as Alaska’s Supreme Court recognized tribal adjudicatory jurisdiction in the family law context.

North Dakota Law Review Article on Missouri River Basin Compact

Matthew L.M. Fletcher

Jeffrey T. Matson has published “Interstate Water Compact Version 3.0: Missouri River Basin Compact Drafters Should Consider an Inter-Sovereign Approach to Accommodate Federal and Tribal Interests in Water Resources” in the North Dakota Law Review.

The abstract:

In the aftermath of the historic 2011 Missouri River flood, Missouri River Basin (MRB) state representatives and governors criticize the U.S. Army Corps of Engineers (Corps) for operating the Missouri River Mainstem Reservoir System (System) in support of the multiple, often conflicting, purposes outlined in the Flood Control Act of 1944. These officials envision entering into an interstate compact to divest the Corps of some of its operational authority and to broaden their role in managing water resources. Similarly, MRB tribal leaders argue that the Corps fails to operate its System in a manner that respects the interrelated issues of Indian reserved water rights and tribal sovereignty. As States and Tribes contemplate a rebalancing of power in the MRB, it is essential that any water resources management solution provide a forum in which affected States, Tribes, and the Federal government might work together in pursuit of interconnected interests. Accordingly, it is time for stakeholders to think beyond the dualistic “federal-interstate” compact arrangement and seriously consider a pluralistic “federal-interstate-tribal” approach – even if Indian reserved water rights are not yet quantified. Although such a tripartite approach is a departure from traditional compacting practice, the great weight of Indian reserved water rights warrants tribal representation on any commission charged with implementing a twenty-first century MRB water resources compact. Further, it would be unrealistic to expect a federal commissioner to represent tribal interests until such time as rights are quantified, given the Federal government’s conflict of interest in operating the System for other consumptive users. This Article concludes that the Federal government’s interests in flood protection, navigation, and national security, and the Tribes’ interests in protecting reserved water rights and tribal sovereignty, warrant an inter-sovereign approach whereby power is shared equally among signatories to this compact.

Conner & Taggart on the Impact of Gaming on Indian Nations Nationally

Matthew L.M. Fletcher

Thaddieus W. Conner and William A. Taggart have published “Assessing the Impact of Indian Gaming on American Indian Nations: Is the House Winning?” in Social Science Quarterly. Send me an email if you need a copy.

Abstract here:

Objective. The objective of this article is to examine the impact of Indian gaming on reservation conditions in the contiguous American states following passage of the Indian Gaming Regulatory Act in 1988. Methods. Utilizing 1990 and 2000 Census data for 330 Indian nations, a pretest/posttest design permits a comparison of nongaming nations to three different types of gaming nations on eight economic measures, while controlling for multiple tribal characteristics and considering the effects of certain state contextual factors confronting nations due to location. Results. The analysis reveals (1) that the overall impact of gaming, while generally positive, is not as extensive after controlling for certain tribal features, (2) that there are differential effects evident across the three types of gaming nations, and (3) that the state context makes a difference in influencing the relationship between gaming and reservation conditions. The most substantial impacts are for a small subset of nations with Class III gaming and making per capita payments to their members in larger, wealthier states prohibiting non-Indian casinos. Conclusion. These results challenge some of the core assumptions about Indian gaming radically changing the poor economic conditions endemic to Indian country.

You may recall these authors previously published a paper focused on New Mexico.

Tribal Gaming Per Cap Payments May Decrease Labor Productivity and Increase Fertility (?!?!)

Matthew L.M. Fletcher6 Comments

Here is a study of the effects of gaming per capita payments on tribal members of three Michigan tribes (Keweenaw Bay Indian Community, Saginaw Chippewa Indian Tribe, and Pokagon Band of Potawatomi Indians). In line with the 1491s’ hilarious video in which a candidate for tribal office runs on the platform of “progression, procreation, per cap,” the study suggests that tribal members receiving per caps leads to “decreased work efforts,” while “weak” evidence exists that per cap payments increase fertility. Enjoy.

Here is the study:

The Effects of Per Capita Tribal Payments on the Fertility, Education, and Labor Force Participation of Tribal Members

The abstract:

The purpose of this research is to provide a preliminary examination of the effects of per capita tribal payments on the decision making of tribal members. Standard  microeconomic theory suggests that unearned income changes the labor-leisure tradeoff in utility maximization models. While the results of per capita payments on hours of work can be easily anticipated, the effects of these payments on human capital accumulation and family size are more ambiguous. Using Census data from 1990 and 2000 we shed some light on the impact of these per capita tribal payments on the lives of the recipients. We concentrate on three tribes in the state of Michigan: the Saginaw Chippewa Tribe, the Keweenaw Bay Indian Community, and the Pokagon Band of Potawatomi Indians of Michigan. The results lend support to the basic labor theory conclusion that an increase in nonlabor income causes individuals to decrease their work efforts. There is also weak evidence that the payment of per capita payments from casino profits is increasing the fertility rate of Saginaw Chippewa tribal families.

New Scholarship: “Property Law and American Empire”

Matthew L.M. Fletcher

Michael Burger and Paul Frymer have posted their paper, “Property Law and American Empire,” forthcoming in the University of Hawai’i Law Review.

Here is the abstract:

Current scholarship by legal commentators and political scientists recognizes that the weapons of American empire have involved non-militaristic activities as much as militaristic ones. Such non-militaristic activities include the hegemonic influence of trade agreements, the imposition of legal and procedural norms, and the dissemination of ideological and cultural predispositions through corporations and diverse medias. In this paper, we examine an under-explored area on the “soft” belly of the American leviathan, focusing specifically on how property and intellectual property law have operated on physical and ideological frontiers to comprehend, participate in, and legitimate the expansion of American empire. We offer new accounts of two historical instances of empire-building: the acquisition and seizure of property from Native Americans in the early- and mid-19th century, and the expropriation of intellectual property rights to plant genetic resources from indigenous communities in the global South in the late 20th century. These two stories, taken together, offer unique insights into both the process and the substance of law’s operation on the frontier of empire. They illuminate how the authority of law has fused with private power and legal legitimacy to enable the nation to expand swiftly, energetically, and powerfully. These insights, in turn, lead toward the more general conclusion that the rhetoric of property has functioned to subjugate peoples and places, cultures and natures, to an imperial regime.