New Indian Law Scholarship on SSRN


Law and Science Series No. 1: The Contemporary Methodology for Claiming Reserved Instream Flow Water Rights to Support Aquatic Habitat

Environmental Law, Forthcoming
Number of pages: 29 Posted: 19 Jul 2019
Working Paper Series

The Historical Evolution of the Methodology for Quantifying Federal Reserved Instream Water Rights for American Indian Tribes

Environmental Law, Forthcoming
Number of pages: 45 Posted: 19 Jul 2019
Working Paper Series

Traditional Ecological Rulemaking

Stanford Environmental Law Journal, Vol. 35, No. 2, 2016
Number of pages: 55 Posted: 01 Aug 2019
Accepted Paper Series

Lobbying as a Strategy for Tribal Resilience

2018 BYU Law Review 1159
Number of pages: 73 Posted: 14 Aug 2019
Working Paper Series

Judge Murphy’s Indian Law Legacy

103 Minnesota Law Review 37 (2018)
Number of pages: 28 Posted: 17 Aug 2019
Accepted Paper Series

Learning from Tribal Innovations: Lessons in Climate Change Adaptation

University of Utah College of Law Research Paper No. 328
Number of pages: 35 Posted: 10 Sep 2019 Last Revised: 13 Sep 2019
Working Paper Series

Tribal Data Governance and Informational Privacy: Constructing ‘Indigenous Data Sovereignty’

80 Montana Law Review 229 (2019), Arizona Legal Studies Discussion Paper No. 19-19
Number of pages: 41 Posted: 17 Sep 2019
Accepted Paper Series

Self-Determination, the Trust Doctrine, and Congressional Appropriations: Promise and Pitfalls of Federal Disentanglement from Indian Health Care

Fédéralisme et gouvernance autochtone/Federalism and Aboriginal Governance (Ghislain Otis & Martin Papillon eds., 2013),
Number of pages: 22 Posted: 15 Jul 2019
Accepted Paper Series

New Indian Law Scholarship

From SSRN:

Incl. Electronic Paper American Colonialism and Constitutional Redemption
California Law Review, Vol. 105, Forthcoming, UC Irvine School of Law Research Paper No. 2017-33
Seth Davis
University of California, Irvine School of Law

Incl. Electronic Paper Indian Sovereignty, General Federal Laws, and the Canons of Construction: An Overview and Update
Thomas Jefferson School of Law Research Paper No. 2987620
Bryan H. Wildenthal
Thomas Jefferson School of Law

Incl. Electronic Paper Indigenizing Equality
Yale Law & Policy Review, Vol. 35, No. 2, 2017
M. Alexander Pearl and Kyle C. Velte
Texas Tech University School of Law and Texas Tech University School of Law

From Bepress:

Budding Conflicts: Marijuana’s Impact On Unsettled Questions Of Tribal-State RelationsKatherine J. Florey

Denying Disgorgement: The Supreme Court’S Refusal To Grant The Crow Tribe ReliefAlex Galliani

Untangling The Court’S Sovereignty Doctrine To Allow For Greater Respect Of Tribal Authority In Addressing Domestic ViolenceLauren Oppenheimer


New Indian Law Papers (9/22/2016)

From SSRN:

Unwinding Non-Native Control over Native America’s Past: A Statistical Analysis of the Decisions to Return Native American Human Remains and Funerary Objects under the Native American Graves Protection and Repatriation Act, 1992–2013
University of Hawaii Law Review, Vol. 38, 2016
Jason C. Roberts
U.S. Department of State
Date Posted: September 21, 2016

Returning to the Tribal Environmental ‘Laboratory’: An Examination of Environmental Enforcement Techniques in Indian Country
Elizabeth Ann Kronk Warner
University of Kansas – School of Law
Date Posted: September 20, 2016

The Great Sioux Nation V. The ‘Black Snake’: Native American Rights and the Keystone Xl Pipeline
Buffalo Human Rights Law Review, Vol. 22, No. 67, 2016
Cindy Woods
International Corporate Accountability Roundtable (ICAR)
Date Posted: September 13, 2016

Traditional Problems: How Tribal Same-Sex Marriage Bans Threaten Indian Sovereignty
William Mitchell Law Review, Forthcoming
Marcia Anne Yablon-Zug
University of South Carolina School of Law

Clarkson: “Accredited Indians”

Gavin Clarkson posted “Accredited Indians: Increasing the Flow of Private Equity into Indian Country as a Domestic Emerging Market” on SSRN (and BEPRESS). Here’s the abstract:

Indian Country is America’s domestic emerging market, and as in a number of emerging markets, many successful businesses in Indian Country are starving for expansion capital. The US Treasury estimates that the private equity deficit in Indian Country is $44 billion. While the handful of wealthier tribes might be logical investors in private equity funds deploying capital in Indian Country, the existing securities laws present a significant impediment. In particular, Regulation D of the Securities Act of 1933 does not treat tribes as “accredited investors,” thus denying those tribes the ability to participate in the private equity market. Since there is no principled reason to exclude tribes from the list of accredited investors, this article makes the case for extending accredited investor status to tribes.

Forthcoming Federal Lawyer Article: “The Supreme Court and the Rule of Law: Indian Law Case Studies”

It looks like I’ll have a short paper in the Federal Lawyer in the March/April 2008 issue they publish in conjunction with the FBA Indian Law Conference. This one is called “The Supreme Court and the Rule of Law: Indian Law Case Studies” and is based in part on my forthcoming Hastings Law Journal article, “The Supreme Court’s Indian Problem” (well, it’s sort of like outtakes from that article).

Here’s the abstract:

Continue reading

Fletcher: On Black Freedmen

My newly revised paper, now titled “On Black Freedmen,” should be up on SSRN in the next few days. The paper will be part of Justice Unveiled: African American Culture and Legal Discourse (Lovalerie King & Richard Schur, eds.).

From the Abstract:

            In recent years, some legal, political, and cultural questions involving American Indians have begun to overlap – and conflict – with those of African Americans. The recent Cherokee Nation of Oklahoma’s vote to strip the Black Freedmen of tribal membership generated allegations of racism and calls to force Indian tribes to comply with the Reconstruction Amendments sheds light on this question. This controversy highlights a serious problem in Indian-Black political and social relationships – the discourse of Black-White racism has begun to intrude into the discourse of American Indian law. The Reconstruction Amendments, federal civil rights statutes, and federal case law—all established as a reaction to Black-White racism –– expresses important antidiscrimination principles that can conflict with the foundational elements of American Indian law: tribal sovereignty, the trust relationship, and measured separatism. To import the law of Black-White racism into American Indian law is to destroy American Indian law and, potentially, American Indian culture.