Oregon Law Review

New Student Scholarship on Treaty Rights as Intangible Cultural Property

Matthew L.M. Fletcher1 Comment

The Oregon Law Review has published New Ways to Fulfill Old Promises: Native American Hunting and Fishing Rights as Intangible Cultural Property.

Here is an excerpt:

Current law and policy in the United States has failed to develop a framework that accounts for the unique nature of intangible cultural heritage. Therefore, intangible cultural heritage, such as Native American hunting and fishing rights, lacks adequate protection. However, international laws—such as the United Nations Declaration on the Rights of Indigenous Peoples, and the United Nations Educational, Scientific, and Cultural Organization (UNESCO) Convention for the Safeguarding of Intangible Cultural Heritage—can help United States lawmakers develop a framework that recognizes Native American hunting and fishing rights as intangible cultural heritage, and adequately protects them as such.

New Oregon Law Review Article on (Tribal) Criminal Jurisdiction and the Nation-State

Matthew L.M. Fletcher

David Wolitz has published “Criminal Jurisdiction and the Nation-State: Toward Bounded Pluralism” in the Oregon Law Review.

An excerpt:

In this Part, I argue that criminal jurisdiction on tribal lands already reflects major elements of the Bounded Pluralism approach I support, but that criminal justice in Indian Country could be improved if tribes had greater functional jurisdiction and if the federal government had greater supervisory authority to set fundamental-rights constraints on that jurisdiction.

New Oregon Law Review Article on the Application of the Reverse-Erie Doctrine and Indian Law

Matthew L.M. Fletcher

Here.

An excerpt:

After proposing a new framework for choosing the applicable body of law, one that more closely resembles a mirror image of the Erie framework, this Comment looks to decisions in Indian law to illustrate the problems produced by the current reverse-Erie paradigm and how they might be cured under the proposed framework. The tension between state and federal law is made all the more obvious when a third sovereign, a tribal nation, is thrown into the mix. While a choice-of-law methodology that produces predictable results better serves all litigants, its benefits become particularly clear when it affects a group that been historically disadvantaged in accessing the American justice system.

New Scholarship on “Whiteness” in the Pacific Northwest

Matthew L.M. Fletcher

John Shuford has posted “‘The Tale of the Tribe and the Company Town’: What We Can Learn About the Workings of Whiteness in the Pacific Northwest” on SSRN. It is forthcoming in the Oregon Law Review. What town is it?

Here is the abstract:

This Article relates ‘the Tale of the Tribe and the Company Town,’ which is unfolding somewhere in the Inland Northwest within the American Pacific Northwest. Insofar as the tale involves a federally recognized tribe, it is a tale that one might tell with attention to Indian law and policy, tribal sovereignty, and tribal interests and histories. However, this tale also implicates a nexus of historical influences and contemporary phenomena, and this Article presents the tale as an heuristic tool for surfacing and exploring some of these influences and phenomena, including white ‘amenity’ in-migration, ‘whitopia’ communities, company towns, secessionism, xenophobia and hate, racial exclusion and discrimination, domestic terrorism, and contested regionalisms. Some of these influences and phenomena have deep roots; others have unsettling current manifestations in the Inland Northwest region and throughout the Pacific Northwest (or Cascadia, as it is now sometimes called). Having presented the tale, and having worked to surface and explore facets of past factors, present conditions, and future possibilities that it implicates, the Article concludes with five insights and a few hopes.

Ezra Rosser on the Property Consequences of Indians

Matthew L.M. Fletcher

Ezra Rosser (American U.) has posted “Protecting Non-Indians from Harm: The Property Consequences of Indians“, forthcoming from the Oregon Law Review, on SSRN. Here is the abstract:

This article is an exploration of the assumption, last made by the U.S. Supreme Court in City of Sherrill v. Oneida Indian Nation of New York, that non-Indian property owners are harmed by Indian acquisition and control of land. Accepting for the moment the Court’s prioritization of a non-Indian perspective, the article explores (a) what lies behind non-Indian resistance to Indian land ownership, and (b) whether in fact non-Indians are harmed by proximity to Indian land. The article combines in its analysis core property law concepts with an empirical examination of the changes over time in assessed land value of properties located near Indian land.