American Indian Law Review

Fletcher on “Tribal Membership and Indian Nationhood”

Matthew L.M. Fletcher

I just posted a short paper prepared for an American Indian Law Review symposium on Indians and identity. The paper, “Tribal Membership and Indian Nationhood,” is a sort of sequel to my NYT’s piece on the Cherokee Freedmen (link to that whole debate is here).

Here is the abstract of the new paper:

American Indian tribes are in a crisis of identity. No one can rationally devise a boundary line between who is an American Indian and who is not. Despite this, each federally recognized tribe has devised a legal standard to apply in deciding who is a member and who is not. Even with some ambiguity and much litigation, these are relatively bright lines. Some Indians are eligible for membership, and others are not eligible. In some rare circumstances, some non-Indians are eligible and become members. However, these bright line rules are crude instruments for determining identity, and often generate outcomes that conflict with legitimate Indian identity.

This paper is about Indian tribes and Indian nations. For purposes of this discussion, there is a difference between the two. I hope to discuss how Indian tribes, shackled to some extent by these intractable questions, can develop into Indian nations. I believe there is room in the American constitutional structure for Indian nations.

I will define what I mean by Indian nationhood. I draw from pre-contact and early post-contact Anishinaabe history to reinvigorate what nationhood meant traditionally. I argue that nations must allow nonmembers some form of political power, though I leave specific details to others. I conclude by arguing that Indian nationhood, in the long-run, is a laudable and perhaps even mandatory goal for modern tribal communities’ survival.

New Scholarship by Hokelei Lindsey on the Native Hawaiian Ceded Lands Trust

Matthew L.M. Fletcher

Hokelei Lindsey has posted her paper, “Native Hawaiians and the Ceded Lands Trust: Applying Self – Determination as an Alternative to the Equal Protection Analysis,” on SSRN. It is forthcoming in the American Indian Law Review. The AILR’s shift over the last few years to a peer-review system continues to pay dividends.

Here is the abstract:

On February 25, 2009 the United States Supreme Court heard oral arguments in Hawai‘i v. Office of Hawaiian Affairs, a case dealing with Hawai‘i’s ceded lands trust. The aftermath of that case likely will put the ceded lands trust and its native Hawaiian purpose on a collision course with the Equal Protection clause of the United States Constitution. Scholars previously have argued that “native Hawaiian” is a racial classification and strict scrutiny should apply. Other commentators have drawn an analogy to programs that benefit Native American tribes and argue that a rational basis standard should apply. In this article, I propose a previously unexamined approach to analyzing the native Hawaiian purpose of the ceded lands trust. The original purpose of the lands that comprise the trust was determined by the Kingdom of Hawai‘i before incorporation into the United States, therefore, I argue that the logic of the equal protection analysis is misplaced. Consistent with its original purpose, the trust is about self – determination not the allocation of government benefits based on race, which would trigger equal protection. Thus, understanding the trust and the trust res through the lens of self – determination offers an alternative to the equal protection analysis and provides a means of reconciliation between the United States and the Native Hawaiian people.

Grant Christensen on Tribal Court Civil Jurisdiction

Matthew L.M. Fletcher

Grant Christensen has posted, “Creating Brightline Rules for Tribal Court Jurisdiction Over Non-Indians: The Case of Trespass to Real Property,” on SSRN (abstract only). It is forthcoming in the American Indian Law Review.

Here is the abstract:

The 2010 passage of the Tribal Law and Order Act will invest significantly more resources in tribal courts. As tribal courts expand, conflicts between sovereignties – tribal, state, and federal – are likely to occur with much greater frequency. Tribal court civil jurisdiction over non-Indians will be among the issues most frequently appealed into federal courts. I offer this piece to propose a new and novel solution; that tribal courts be extended civil jurisdiction in a piecemeal process that vests absolute tribal court jurisdiction over non-Indians for those civil offenses over which tribes have the greatest interest. This article takes one of the most common jurisdictional questions, tribal court jurisdiction over non-Indians in cases of trespass to land, and argues that a bright-line rule favoring tribal court jurisdiction in this instance is legally mandated, will pragmatically conserve judicial resources, and recognizes the broad tribal sovereignty recently reaffirmed by Congress.

Forthcoming Scholarship on Indian Law Preemption

Matthew L.M. Fletcher

Jackie Gardina has posted “Federal Preemption: A Roadmap for the Application of Tribal Law in State Courts,” forthcoming in the American Indian Law Review. [Also available at BEPRESS.]

Here is the abstract:

This article contends that state courts are not necessarily free to apply state law when the state court is exercising concurrent adjudicative jurisdiction with tribal courts. Instead Indian law principles of pre-emption direct state courts to apply tribal law in certain cases. A guiding principle emerges: if a tribe has legislative jurisdiction over the dispute, tribal law ordinarily must be applied. In these instances, a state’s laws, including its choice of law rules, are preempted by federal common law because their application interferes with the federal government’s and the tribe’s interest in promoting tribal self-government, including the tribe’s ability to create laws and have those laws applied to disputes over which they have jurisdiction. This article differs in a significant respect from other articles addressing the application of tribal law in state courts. Some commentators have argued that state courts should incorporate tribal law into their traditional choice of law analysis. While this argument is certainly viable, it fails to recognize the primacy of tribal law and tribal interests in certain instances. The forum bias inherent in state choice of law rules provides limited protection to a tribe’s sovereignty interest. To the extent that the state’s choice of law rules can be bypassed, they should be.

Newest Issue of American Indian Law Review

Matthew L.M. Fletcher

Here:

Current Issue – Vol. 34• No. 1 • 2009-2010

Article

  • United States v. Hatahley: A Legal Archaeology Case Study in Law and Racial Conflict – Debora L. Threedy

Comments

  • Biopiracy: The Struggle for Traditional Knowledge Rights – John Reid
  • NAGPRA Revisited: A Twenty-Year Review of Repatriation Efforts – Julia A. Cryne

Notes

  • Bittle v. Bahe: A Drunken Mistake – Brian Alan Burget
  • Yellow Snow on Sacred Sites: A Failed Application of the Religious Freedom Restoration Act – Joshua A. Edwards

Special Features

  • How the Anti-gaming Backlash Is Redefining Tribal Government Functions – Audrey Bryant Braccio
  • Winner, Best Appellate Brief in the 2009 Native American Law Student Association Moot Court Competition – Alex Hagen & J.R. LaPlante

Ezra Rosser Book Review of Ray Austin’s Book on Navajo Common Law

Matthew L.M. Fletcher

Ezra Rosser has posted Displacing the Judiciary: Customary Law and the Threat of a Defensive Tribal Council, http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1591153, forthcoming 35 Am. Indian L. Rev. __ (2010) to SSRN.  The abstract is below:

Displacing the Judiciary: Customary Law and the Threat of a Defensive Tribal Council is a brief article framed as a book review of RAYMOND D. AUSTIN, NAVAJO COURTS AND NAVAJO COMMON LAW: A TRADITION OF TRIBAL SELF-GOVERNANCE (2009). Raymond Austin is a former Justice of the Navajo Supreme Court and his book is an important contribution to Indian law and tribal law scholarship that should be of interest to general readers. Austin shows the origins of Navajo customary law norms and how the Navajo court system has incorporated those norms into Navajo common law. Although the majority of the article is dedicated to reviewing NAVAJO COURTS AND NAVAJO COMMON LAW, I also discuss the an ongoing tribal power struggle and the related effort of the Navajo Tribal Council to block the Navajo courts from using customary law.

Larry Cata Backer on Che and the UN Declaration

Matthew L.M. Fletcher

Larry Catá Backer has posted “From Hatuey to Che: Indigenous Cuba Without Indians and the U.N. Declaration on the Rights of Indigenous Peoples.” It is published in the most recent edition of the American Indian Law Review, Vol. 33, 2009. The abstract:

Indigenous peoples have been quite useful to political elites in Latin America almost since the time of the conquests by Spanish and Portuguese adventurers in the fifteenth and sixteenth centuries. In the nineteenth and early twentieth centuries, indigenous people supplied the foundations for a trope, both literary and political, essential for the construction of cultural, ethnic, racial, and political identities distinct from the traditional colonial masters of emerging Latin American states, as well as from that great power to the north. This paper looks at one aspect of this rich development by focusing on the noble savage, the construction of Caribbean (and principally Cuban) political identity, and the formation of governance ideals. The focus will be on three people, separated by hundreds of years but all connected by the parallels of their lives and their place within Caribbean literary and political thought. I will start with the great archetypical figure of Cuban history – a Taino Indian from the island of Hispaniola – el indio Hatuey. The heart of the paper examines essays of Jose Marti in the broader context of Latin indigenismo. Marti, like the Spanish before him, confronts the Indian in Cuban life. But unlike the Spanish, Marti deploys the Indian in the service of the construction of Cuban national indigenismo. The last great figure considered in the development of Cuban indigenismo is Fidel Castro Ruz. Castro served as the leader of Cuba from the successful conclusion of the Cuban Revolution of 1959 until early 2008 when illness forced his retirement. The indigenismo of Marti finds rich embellishment in the great speeches of Fidel Castro. With Fidel Castro we witness the maturation of the process of denaturing the Indian from indigenismo. The essay ends with a consideration of the U.N. Declaration on the Rights of Indigenous Peoples from the perspective of this constructed Cuban indigenismo without Indians. In a Cuba without Indians, but where the memory of the Indian is revered, Cuba can seek to assert the rights of indigenous peoples everywhere without having to confront the issue of its own Indians. In a construction of a social and ethnic order in which the Indian has disappeared, to assert the right of indigenous people in Cuba is to assert the rights of the Cuban nation as a singular but blended mass.

Kevin Washburn on Felix Cohen, Anti-Semitism, and American Indian Law

Matthew L.M. Fletcher

Kevin Washburn (Arizona) has posted “Felix Cohen, Anti-Semitism, and American Indian Law,” forthcoming in the American Indian Law Review, on SSRN. Here is the abstract:

Felix Cohen and his work is discussed in several new books, including an important intellectual biography of Cohen by Dalia Tsuk Mitchell. Using the Mitchell biography as a starting point, this essay discusses an important episode in Cohen’s life, involving apparent anti-Semitism at the Department of Justice, which is not adequately explored in the otherwise excellent biography by Mitchell. As a result, Cohen remains a mystery in some respects. The essay also discusses some of the paradoxes of Cohen’s key involvement in federal Indian policy and the contemporary importance of some of his legacies in American Indian law.

American Indian Law Review to Publish Papers from MSU Conference “American Indian Law and Literature”

Matthew L.M. Fletcher

Here is a listing of the articles to be published in volume 33, no. 1:

  • From Hatuey to Che: Indigenous Cuba Without Indians and the U.N. Declaration on the Rights of Indigenous Peoples – Larry Catá Backer
  • “Channeling Thought”: The Legacy of Legal Fictions from 1823 – Jen Camden & Kathryn E. Fort
  • Interpretive Sovereignty: A Research Agenda – Kristen A. Carpenter
  • Crossover – Richard Delgado & Jean Stefancic
  • Red Leaves and the Dirty Ground: The Cannibalism of Law and Economics – Matthew L.M. Fletcher
  • Genealogy as Continuity: Explaining the Growing Tribal Preference for Descent Rules in Membership Governance in the United States – Kirsty Gover
  • Writing the Living Law: American Indian Literature as Legal Narrative – Amelia V. Katanski
  • How Lawyers Resolve Ethical Dilemmas: An Essay on James Welch’s The Indian Lawyer – Renee Newman Knake
  • Narrative Braids: Performing Racial Literacy – Margaret Montoya & Christine Zuni Cruz, interviewed by Gene Grant
  • At the Edge of Indian Law Scholarship: A Poem Instead of a Footnote – Frank Pommersheim

Kristen Carpenter on Interpretative Sovereignty

Matthew L.M. Fletcher

Kristen Carpenter has posted her paper, “Interpretative Sovereignty: A Research Agenda,” on SSRN. It is forthcoming from the American Indian Law Review. Here is the abstract:

In federal Indian law, the treaty operates as our foundational legal text. Reflecting centuries-old historical political arrangements between Indian nations and the United States, treaties remain vital legal instruments that decide dozens of legal cases each year. Yet, these treaties — originally drafted in English by the federal government, following negotiations with tribal representatives who usually spoke their own languages — present a number of ambiguities for contemporary courts. The dominant model of treaty interpretation is one in which judges interpret treaties in a manner they they believe to reflect Indians’ understanding of treaty terms and, more generally, to promote the interests of Indian nations. While this liberal approach to treaty interpretation has secured a number of important Indian rights in the courts, it does not necessarily reflect the ways in which Indians actually perceived treaty terms in their own languages and cultures.

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