american indian law

American Indian Law Review 2021-2022 Writing Competition

gabrielagendreau

Writing Competition Rules

TOPICS: Papers will be accepted on any legal issue specifically concerning American Indians or other Indigenous peoples.

ELIGIBILITY: The competition is open to students enrolled in J.D. or graduate law programs at accredited law schools in the United States and Canada as of the competition deadline of Monday, February 28th, 2022. Editors of the American Indian Law Review are not eligible to compete.

AWARDS: The first place winner receives $1,500 and publication by the American Indian Law Review, an official periodical of the University of Oklahoma College of Law with international readership. The second place winner receives $750, and third place receives $400. Each of the three winning authors will also be awarded an eBook copy of Cohen’s Handbook of Federal Indian Law, provided by LexisNexis.

DEADLINE: All emailed entries must be received no later than 6 p.m. Eastern Standard Time on Monday, February 28th, 2022 (5 p.m. Central Standard Time). Entries will be acknowledged upon receipt. Submissions may be emailed to the American Indian Law Review at mwaters@ou.edu

JUDGES: Papers will be judged by members of the legal profession with an interest in American Indian law and by the editors of the American Indian Law Review.

STANDARDS: Papers will be judged on the basis of originality and timeliness of topic, knowledge and use of applicable legal principles, proper and articulate analysis of the issues, use of authorities and extent of research, logic and reasoning in analysis, ingenuity and ability to argue by analogy, clarity and organization, correctness of format and citations, grammar and writing style, and strength and logic of conclusions. All entries will be checked for plagiarism via an online service.

FORM: Entries must be a minimum of 20 double-spaced pages in length and a maximum of 50 double-spaced pages in length excluding footnotes or endnotes. All citations should conform to The Bluebook: A Uniform System of Citation (21st ed.). The body of the email must contain the author’s name, school, expected year of graduation, current address, permanent address, and email address. No identifying marks (name, school, etc.) should appear on the paper itself. All entries must have only one author. Entries must be unpublished, not currently submitted for publication elsewhere, and not currently entered in other writing competitions. Papers entered in the American Indian Law Review writing competition may not be submitted for consideration to any other publication until such time as winning entrants are announced, unless the entrant has withdrawn the entry or received a notification of release prior to that time. Any entries not fully in accord with required form will be ineligible for consideration.

SUBMISSION: Submissions may be emailed to the American Indian Law Review at mwaters@ou.edu by the competition deadline. Entries may be sent as Microsoft Word, PDF, or WordPerfect documents.

CONTACT: E-mail — Michael Waters, mwaters@ou.edu
Phone Numbers — (405) 325-2840 and (405) 325-5191
This rules sheet is also available on the AILR website, at http://www.ailr.net/writecomp.

Alex Pearl on Maximizing Welfare and Efficiency Through Informal Norms in Indian Law

Matthew L.M. Fletcher

M. Alexander Pearl has posted “Of ‘Texans’ and ‘Custers’: Maximizing Welfare and Efficiency Through Informal Norms,” forthcoming in the Roger Williams University Law Review, on SSRN.

Here is the abstract:

Professor Robert Ellickson (Yale) theorized that the informal norms of a close-knit community maximize aggregate welfare and Professor Barak Richman (Duke) identified two distinct types of private ordering systems: “shadow of law” and “order without law.” Under the Ellickson-Richman structure, many Indian tribes qualify as close-knit groups where informal norms effectively operate. The additional trait of isolation — both geographic and cultural — makes them ideal communities for the prioritization of informal norms. The imposition of external law, such as state law, is harmful and unnecessary to the maintenance of order in these communities. Recent legislative efforts to ameliorate criminal problems in Indian Country miss the mark and an alternative solution prioritizing the operation of informal norms and private ordering should prevail over application of external law and structures.

This article expands upon Ellickson’s assessment of how social behavior is affected by law and other forces, such as the informal norms in a given social group. Part I explains Ellickson’s theory and analyzes other important contributions made by other scholars. Part II discusses the taxonomy of historical and current examples of communities utilizing informal norms, or private law based mechanisms, to resolve disputes and how efficient results that maximize welfare (as defined by the community) are achieved. Part III, addresses the question of whether government law enforcement interferes with the close-knit community to an extent great enough to diminish the efficacy, or existence, of operative informal norms. Part IV examines anthropological sources to argue that the unique attributes of various Indian tribes and tribal communities warrant definition as the type of close-knit communities contemplated under Ellickson’s theory. Part V explains why the informal norms of certain tribal communities should be allowed to operate without interference from outside legal forces (Custers). Finally, Part VI looks at the relevant provisions in the recently passed Tribal Law and Order Act of 2010 and asks whether they effectively address the criminal justice issues facing Indian tribes subject to State criminal jurisdiction.

American Law Institute Proposed Project on American Indian Law

Matthew L.M. Fletcher3 Comments

Today, I will be make a presentation at the 2012 American Law Institute annual meeting (agenda here) in support of a proposed restatement or principles project on American Indian Law.

I organized a meeting on behalf of the ALI in March here in D.C. to discuss whether the ALI could effectively contribute the field (coverage of the meeting is here):

On March 29, the Institute hosted a conference on American Indian law at The Mayflower in Washington, DC, to discuss whether the ALI could produce work that would have a positive impact in the area of American Indian law. Among those attending the meeting, moderated by Professor Matthew L.M. Fletcher of Michigan State University College of Law, were government officials, judges, practitioners, and law professors with expertise in the field, including Deputy Solicitor General Edwin S. Kneedler; Arvo Mikkanen of the U.S. Attorney’s Office for the Western District of Oklahoma; Jon M. Sands, Federal Public Defender for the District of Arizona; Judges William Cameron Canby, Jr., and William A. Fletcher of the U.S. Court of Appeals, Ninth Circuit; Judge Diane P. Wood, U.S. Court of Appeals, Seventh Circuit; Patricia Ann Millett of Akin Gump in Washington, DC; John E. Echohawk of the Native American Rights Fund; Dean Kevin K. Washburn of the University of New Mexico School of Law; and Dean Stacy L. Leeds of the University of Arkansas School of Law.

 

Fletcher on Free Speech and Tribal Law

Matthew L.M. Fletcher1 Comment

My chapter, “Resisting Congress: Free Speech and Tribal Law,” from our book, The Indian Civil Rights Act at Forty.

Here is the abstract:

Congress codified the unsettled tension between American civil rights law and American Indian tribal law, customs, and traditions in American Indian communities by enacting the Indian Civil Rights Act (ICRA) in 1968. Concerned that individual rights were receiving short shrift in tribal courts and by tribal governments,Congress chose to apply a modified form of the Bill of Rights on tribal governments. In other words, Congress chose to impose American legal norms on Indian governments in order to protect those under tribal jurisdiction.As it had done previously in statutes such as the Indian Reorganization Act, Congress affirmatively sought to displace tribal law — and all the attendant customs and traditions, as well as Indian values — with American law. Ironically, after the Supreme Court interpreted ICRA in 1978, this law could only be interpreted and enforced by tribal courts. Tribal law and American civil rights law have been at odds in many tribal communities ever since, as tribal voters, legislatures, and courts have struggled with how (and whether) to apply American civil rights law in Indian country.

In this chapter, I explore several questions relating to tribal courts, tribal governments, and the Indian Civil Rights Act. For example, do tribal decision makers (i.e., voters, legislatures, and especially courts) deviate from the state and federal government and court interpretations of the Bill of Rights in applying ICRA; and if so, how much and in what way? Do tribal decision makers apply or incorporate tribal law, customs, and traditions into their decisions relating to civil rights under ICRA (and tribal laws that incorporate ICRA’s provisions); and if so, how? Are tribal decision makers truly bound by the provisions of the ICRA?The last question begs a final question: Does Congress have authority to force tribal decision makers how to decide civil rights disputes?

Patrick O’Donnell’s Bibliography of American Indian Law

Matthew L.M. Fletcher

Patrick S. O’Connell’s excellent resource is available at Ratio Juris (here).

Here is the text of the announcement:

American Indian Law Bibliography: Yes, Custer Died for Our Sins

Here is the bibliography for American Indian Law. What follows is meant to prod and provoke you, dear reader, to cultivate an ardent if only amateur interest in this domain of law as well as in the peoples to whom (in the first instance) it applies.

Easy knowledge about Indians is a historical tradition.
—Vine Deloria, Jr.

European explorers and invaders discovered an inhabited land.
—Francis Jennings
Continue reading →

Supreme Court & Indian Law

Matthew L.M. Fletcher

The Supreme Court issued its first order of the October 2007 Term last week — containing no Indian law grants, as I blogged elsewhere.

Today, the Court issued an order listing cert. denials, including Catawba Indian Tribe v. South Carolina (No. 07-69), Gros Ventre Tribe v. United States (06-1672), and Yakama v. Colville (No. 06-1588).

So what does this mean? By itself, I suppose it means nothing. But the Catawba and Gros Ventre cases were cases in which the tribal interests were petitioning (and the other case was an intertribal conflict) against a state and the federal government, respectively. A Court hostile to tribal interests would leave those cases alone.

With this round of cert. denials, keep in mind that the last time the S. Ct. granted cert. in an Indian law case was Wagnon v. Prairie Band Potawatomi Nation — and two “Westerners,” Rehnquist, C.J. and O’Connor, J., were still Members of the Court. Since then, the Court has denied cert. in something like 60 straight Indian law cases.

For background on my theory about how it matters that “Westerners” used to sit on the Supreme Court in the context of cert. petitions, see my editorial in Indian Country Today.

Of course, the editorial has an incorrect statement (my own fault) — for a few years in the early 1990s, there were four Westerners on the Court — Rehnquist, O’Connor, White, Kennedy.