Law Commons^™

Icwa And The Commerce Clause, Matthew L.M. Fletcher

Matthew L.M. Fletcher

Congress enacted the Indian Child Welfare Act, it said, in accordance with its authority under the Indian Commerce Clause and because it has assumed responsibility over Indian affairs. But under the line of cases developed by the Rehnquist Court, the Court takes a very dim view of Congressional authority under the Commerce Clause, while resurrecting the Tenth Amendment from its stasis as a “truism.” At least one Justice asserts that there is nothing in the Constitution that authorizes Congress to assume authority over Indian affairs to the exclusion of the Executive branch or the states. This paper argues that, despite …

Preconstitutional Federal Power, Matthew L.M. Fletcher

Matthew L.M. Fletcher

In two fields of constitutional law, the Supreme Court has acknowledged that the federal government may possess preconstitutional power, or national authority derived not from the Constitution but from the very fact of sovereignty. This Article analyzes the two areas of law – the Foreign Affairs Power and the Indian Affairs Power – and assesses their viability in future cases. The case recognizing a preconstitutional Foreign Affairs Power resting with the Executive branch, United States v. Curtiss-Wright Export Corp., suffers from poor historical reasoning and has little precedential weight in modern foreign affairs cases, but has never been overruled. The …

The Supreme Court's Legal Culture War Against Tribal Law, Matthew L.M. Fletcher

Matthew L.M. Fletcher

The law of Indian tribes is under attack by non-Indians, with the most strident and hostile attacks coming from the Supreme Court. Justice Souter in particular is concerned that tribal law is "unusually difficult to sort out" for outsiders. This short essay argues that tribal law really isn't all that difficult, especially the law that applies to nonmembers. It is, in fact, very similar to American common law. While there is "difficult" tribal law, that law applies only to members, that is, people who can understand it.

"A Perfect Copy": Indian Culture And Tribal Law, Matthew L.M. Fletcher

Matthew L.M. Fletcher

A critical area of American Indian law is the resurgence, restoration, and development of tribal law in Indian Country. Some tribal law is borrowed or transplanted, while other tribal law is based on custom and tradition, but the ultimate purpose of developing a body of law that parallels Anglo-American law is the preservation of American Indian culture. Leech Lake Ojibwe David Treuer’s recent book of literary criticism, Native American Literature: A User’s Guide, offers a startling premise that reaches far beyond literature – American Indian literature that borrows from Anglo-American literary traditions is nothing more than a “copy” of Indian …

Bringing Balance To Indian Gaming, Matthew L.M. Fletcher

Matthew L.M. Fletcher

This Article proposes to codify the revenue sharing agreements already implemented, assuming the tribe consents; mandate all future casino-style gaming compacts include revenue sharing; and codify the Secretarial procedures designed to reestablish the enforcement mechanism. This proposal would cement the on-the-ground reality of Indian gaming that tribes and states have relied upon since 1996. Reform of the law of Indian gaming should focus on the underlying structure of the law of Indian gaming rather than the symptoms.

Congress enacted the Indian Gaming Regulatory Act in 1988 as a compromise between Indian tribes and states. Congress required tribes to compact with …

Rethinking Customary Law In Tribal Court Jurisprudence, Matthew L.M. Fletcher

Matthew L.M. Fletcher

Customary law still appears in many of the decisions of American state and federal courts. Customary law, part and parcel of the English common law adopted and adapted by the Founders of the United States, recurs less often given that statutory and administrative law dominate the field. In contrast, the importance of customary law in American Indian tribal courts cannot be understated. Indian tribes now take every measure conceivable to preserve Indigenous cultures and restore lost cultural knowledge and practices. Tribal court litigation, especially litigation involving tribal members and issues arising out of tribal law, often turns on the ancient …

The New Federal Indian Law, Matthew L.M. Fletcher

Matthew L.M. Fletcher

While many scholars suggest that the Court’s conservative views drive these Indian law decisions and criticize the Court for failing to follow foundational principles of federal Indian law, in this article I hope to show that the Court’s reasons for granting certiorari and for deciding against tribal interests in these cases are not Indian law-related. Instead, the Court identifies important, unrelated constitutional concerns that appear to arise more frequently in Indian law cases, decides those matters, and only then turns to the federal Indian law questions. Once the Court disposes of the important constitutional concern in its analysis, the Court’s …

Book Review -- Making Indian Law: The Hualapai Land Case And The Birth Of Ethnohistory, Matthew L.M. Fletcher

Matthew L.M. Fletcher

No abstract provided.