The Influence of Native American Legal Scholarship On the Courts

Matthew L. M. Fletcher, Michigan State University College of Law, has published American Indian Legal Scholarship and the Courts as MSU Legal Studies Research Paper No. 10-25. Here is the abstract.

Is legal scholarship influential on the courts? More particularly, is American Indian legal scholarship influential on the courts? In the 1960s, 1970s, and 1980s, tribal interests enjoyed historic success in the courts. While they didn’t win every case, tribal interests prevailed far more than they ever had prior to these few decades. Since the advent of the Rehnquist and Roberts Courts, however, those successes have once again become few and far between.
American Indian legal scholarship, which rose from virtual nonexistence in the 1950s to significance in the late 1960s and 1970s, appears to have been very influential on the courts during the period of success. Every decade since the 1960s has seen a dramatic increase in the number of law review articles on the subject of American Indian law. Courts cited to an incredible percentage of the Indian law articles published in the 1960s, 1970s, and early 1980s, but that citation pattern has leveled off since the 1980s. The lower courts continue to cite American Indian legal scholarship, but in a more limited manner. In the Supreme Court, Indian law scholarship has all but disappeared.
This short paper, prepared for the Henderson Center’s Fall 2012 Symposium, “Heeding Frickey’s Call: Doing Justice in Indian Country,” presents the data on the citation patterns of American Indian legal scholarship and reviews Professor Frickey’s call as a means of introducing the conference.

Download the paper from SSRN at the link. 

Environmental Politics and Indigenous Peoples

Eve Darian-Smith, University of California, Santa Barbara, has published Environmental Law and Native American Law, at 6 Annual Review of Law and Social Science 359 (2010). Here is the abstract.

This review seeks to engage two bodies of scholarship that have typically been analyzed as discrete areas of inquiry - environmental law and American Indian law. In the twenty-first century, native peoples' involvement in environmental politics is becoming more assertive. In this context it is necessary to think about the impact indigenous involvement may have in shaping future U.S. environmental agendas and regulations. After briefly discussing the rise of environmental movements and environmental law in the United States, I turn to the historical treatment of native peoples and in particular the treatment of their natural resources. This historical backdrop is essential to understanding tribal status today under the Environmental Protection Agency, and the challenges some tribal governments now present to environmental exploitation and degradation by states and corporations. The review concludes by reflecting on the future of U.S. environmental law in the context of increasing pressure being exerted by international environmental law and global indigenous politics.

The full text is not available from SSRN.

Native Americans in Popular Culture and the Law

andré douglas pond cummings, University of Iowa College of Law, University of Utah College of Law, and West Virginia University College of Law, has published A Shifting Wind?: Media Stereotyping of American Indians and the Law. Here is the abstract.

An accurate historical narrative of the treatment imposed upon American Indians at the hands of the United States Government reveals a sordid tale. The portrayal and stereotyping of North America’s indigenous civilizations by the United States’ popular media emulates this foul history. The U.S. legal system’s contemptuous judicial decrees and legal policies promulgated for more than two centuries testifies to the Government’s and the popular media’s hostility and historical abuse toward American Indians. Unfortunately for historical (and modern) purveyors, each of these abhorrent deeds is memorialized for the world to read and see in innumerable broken treaties, motion pictures, literary works and judicial reporters.

In recent decades, historians and scholars, both American Indian and non-native alike have skillfully documented the deceitful trail of broken promises and near annihilation. In addition, the popular U.S. media and the U.S. legal system have intersected curiously over the years in connection with a tag-team treatment of and discrimination against American Indians. The media, including print advertising, newspapers, literary works, television, online sources and motion pictures, seems to have borrowed historical stereotypical characterizations from the judiciary and U.S. government policies, and vice versa, simultaneously portraying American Indians as ferocious and savage yet simple and helpless. Proven instances of governmental abuse and discrimination, hostile portrayal and stereotyping by the media and contemptible judicial decrees are innumerable.

In very recent years, there is some evidence that the winds are shifting. Slowly and steadily, segments of the mass media seem to be trending toward a more honest historical account of U.S. history, and the portrayal of American Indians is becoming more reflective of reality and humanity. In the past decade, encouraging signs that the wind is shifting have signaled a potential sea change in the way that American Indians are presented to the United States public through the media and the law.

That said, favorite American Indian stereotypes and comfortable discriminations die hard. As the law and media stumble forward awkwardly, attempting to get it right, an assortment of U.S. contingencies, including professional sports franchises and American Universities, cling desperately to time-worn typecasts and hostile imagery.

While a veritable candelabra of options exist when attempting to describe the shameful historical treatment of American Indians, the following three brief snapshots will be presented to capture the essence of that treatment and to contemplate any further change in the curious intersection between the media and the law. The three snapshots will include a glimpse of the historical United States Government treatment of American Indians, followed by a look at the traditional stereotyping of American Indians by U.S. mass media and finally a brief examination of a few of the historically offensive judicial decrees handed down by federal judges. Thereafter an examination of the connection between the modern media and the law will be undertaken to assess whether a sea change is truly upon us.

Download the paper from SSRN at the link.

The Alternative Cultural Narrative and Legal Education

Brennan P. Breeland has published I Am Jack's Radical Self-Degradation: A Pedagogical Argument for the Inclusion of the Indigenous Narrative in the Postmodern Legal Education. Here is the abstract.

An American legal education begins with a first-year curriculum which is largely uniform across the spectrum of institutions: Contracts, Torts, Constitutional Law, Property, Civil Procedure, and the like are considered the requisite basis for the continued study of law. In the course of learning the basic precepts underpinning these areas of law, first-year law students are exposed not only to the majority rules and those which govern the jurisdictions which contain the law school itself, but also minority rules and important lines of alternative reasoning, because incorporating these alternative analyses is critical to providing future practitioners of the law the proper tools with which to practice. It goes without saying that the value gained from exposure to the minority rules is not insignificant, but this is not the end of the discussion of legal pedagogy and the best way to educate legal thinkers.

In analyzing legal pedagogy, it is important to determine not only the quality of the instruction, but what it is that is being taught. Of equal importance is the converse – an analysis of what is not being taught. The typical legal education does not usually incorporate an understanding of the nature of the law as a narrative, and further, it reinforces the silencing of alternative cultural narratives, or story-based understandings of legal concepts, in favor of the “color-blind” jurisprudence and pedagogy that is only color-blind in that it only sees white (i.e., non-colored) western narratives as viable. This article explores the value of incorporating native narratives into the traditional legal education, in a manner similar to the study of the common law of other jurisdictions for the purpose of learning basic concepts of law.

The article proposes the inclusion of the indigenous narrative in the baseline legal education by including cases from tribal courts in the case method of legal study, and considers this proposal through the lens of Lacanian psychoanalytic theory, specifically as illustrated by David Fincher’s film adaptation of Chuck Palahniuk’s novel Fight Club.

Download the paper from SSRN at the link.

Methods of Teaching Native American Literature and Law

Cristine Soliz, Colorado State University, Pueblo, and Harold Joseph have published "Native American Literature, Ceremony, and Law," in MLA Options for Teaching Literature and Law (Austin Sarat, Cathrine Frank & Matthew Anderson, eds., 2009). Here is the abstract.

The joint study of law and literature offers a platform for Indigenous Studies and other programs to explore divergent philosophies and systems of law that have marked the Americas since 1492: Native American Ceremony and Euro-U.S. Law. Although law and literary culture are seen as inextricable and thus seemingly preclusive of Native American ceremony, our essay suggests a rationale and approaches for exploring, in a classroom, the theme of Native American ceremony in its relation to law.

Native American ceremony, as fundamentally anomalous to Old World or Eurasian ceremony and law, interrogates, in the relation, the collective imaginary and ethos or internal logic that enters into creating and even needing law. This relation can be explored using imaginative literature and contrasted to networks that legitimate our practices, as well as to changing definitions of law, such as St. Augustine's Natural Law, and Jeremy Bentham's early definition that tied law to monarchy. Euro-U.S. law in America since 1492, for example, has relied on punitive force as its normative power, but what are the consent mechanisms in Native American ceremony and how does it differ from normative domains described by Euro-U.S. practices, such as religion and even literature? An exploration of this theme through interactive readings of literature and law would focus on what the relationship between law and Native American ceremony might be, based on the continuing presence of Indian ceremony against the force of the U.S. system of law as it increasingly exercises control over Native Americans on tribal lands. Despite the legalities of Euro-U.S. past and present control over Indians, Native American ceremony continues to play a strong part in the psychological processes of the Native American imaginary.

James Welch's Fools Crow is an exemplary fiction that raises these issues, which are made clearer through legal texts. The plight of a small village of Blackfeets and the implied historical events that follow receive a fuller reading through the Indian Removal Act of 1830, Andrew Jackson's Report to Congress in 1829 and 1835, including congressional rhetoric and Acts contemporary to the 1870s, the temporal setting of Fools Crow. These texts give access to divergent cultural practices both through the experience of imagination and through grounding the fictive in the reality of the political setting, setting being an important element of fiction. A reading through the lens of the legal texts motivates questions about why, in the last chapter, Fools Crow and the people observe a 7-day ceremony, even though they realize they are being overwhelmed by invasions of U.S. soldiers and settlers. This locus in the text creates an interpretive opening to the conflict between U.S. and Indian law, to divergent views of law itself and the collective imaginary that goes into its formulation and enactment. Law, as seen in Indian ceremony across America, is strongly tied to harmonious interaction with what the land offers.

Classroom approaches can be organized around major time periods addressing three kinds of legal texts: ceremony, Indian treaties, and federal law with corresponding texts in themes important for the 21st century because of environmental, humanitarian, and sustainability concerns and because of pressures for development of natural resources, many of which can be found on what remains of Indian land. Much of the conflict between Native Americans and Non-Indians, from the Makah whale hunt to more recent Hopi and Navajo opposition to creating artificial snow on San Francisco Peaks in Arizona, has been because of a lack of understanding of Indian Ceremony as valid law in the Americas.

Download the paper from SSRN here.

Indigenous Law Conference Planned at Michigan State University

News from Professor Matthew Fletcher of Michigan State University College of Law:

The Michigan State University College of Law will host its fourth Indigenous Law Conference from October 19 through October 20 of this year in East Lansing, Michigan. The welcome reception is October 18. The topic is American Indian Law and Literature. Guests include Richard Delgado, Frank Pommersheim, and Kristen Carpenter. Here's a link to the conference.

American Indian Literature and Law

Kristen A. Carpenter, University of Denver College of Law, has published "Contextualizing the Losses of Allotment Through Literature," in the North Dakota Law Review. Here is the abstract.

In this article, the Author undertakes a law and literature approach to a major Indian law problem: understanding the losses of allotment. Allotment was a mid 19th- early 20th century federal legislative program to take large tracts of land owned by Indian tribes, allocate smaller parcels to individual Indians, and sell off the rest to non-Indians. The idea was that Indians would abandon traditional patterns of subsistence to become American-style farmers, and great tracts of land would be freed up for the advance of white settlement. A key component of the federal government's larger project of assimilating Indians into mainstream society, allotment was devastating for Indian people who suffered incredible losses of land, economic livelihood, culture, and everything else that mattered. But the Supreme Court's caselaw on allotment might make you think otherwise. Indeed Lone Wolf v. Hitchcock (1903) characterizes allotment as a policy that simply changed the manner in which tribes owned their real property and did not cause any losses at all.

There are, of course, many ways to develop a fuller legal picture of the losses tribal people suffered during allotment, including historical and empirical research. But this article argues that fiction also has something to offer. Accordingly it argues that two novels by the Turtle Mountain Chippewa author Louise Erdrich can serve to contextualize the losses suffered by Indian people during allotment. While tribal people clearly lost a lot of land, Erdrich helps us understand how allotment brought about losses in socio-economic, familial, spiritual, and other realms of tribal life. And even though she is writing about fictional Ojibwe people and not the real Kiowa and Comanches involved in Lone Wolf, Erdrich raises important, relevant questions about allotment. Inspiring lawyers to contemplate these questions - completely ignored by Lone Wolf - can enhance both understanding of the case and contemporary advocacy to redress the losses of allotment today.

Download the entire article from SSRN here.