Law Commons^™

Factbound And Splitless: The Certiorari Process As A Barrier To Justice For Indian Tribes, Matthew L.M. Fletcher

Matthew L.M. Fletcher

The Supreme Court’s certiorari process does more than help the Court parse through thousands of uncertworthy claims – the Court’s application of the process creates an affirmative barrier to justice for parties like Indian tribes and individual Indians. The negative impact of the certiorari process is all but invisible unless one studies a specific area of constitutional law. This study takes up that challenge. Statistically, there is a near zero chance the Supreme Court will grant a certiorari petition filed by tribal interests. At the same time, the Court grants certiorari in far more petitions filed by the opponents to …

Race And American Indian Tribal Nationhood, Matthew L.M. Fletcher

Matthew L.M. Fletcher

American Indian tribes and nations are at a crossroads. One on hand, many tribes like the Cherokee Nation – mired in the politics and law of disenfranchising the Cherokee Freedmen – continue to hold to a citizenry based in race and ancestry. Federal Indian law tends to protect, and encourage, even the worst abuses of this regime. The United States long has adopted Indian blood quantum as a proxy for tribal citizenship, creating unfortunate paradoxes for Indian tribes and their citizens. For example, the Supreme Court just a few days ago in Carcieri v. Salazar held against an Indian tribe …

Race And American Indian Tribal Nationhood, Matthew L.M. Fletcher

Matthew L.M. Fletcher

As American Indian tribal nations develop the capacity to govern their own citizens, and engage in substantial economic and political activities with non-citizens, they are heading toward major roadblocks. Tribal nations, like other nations, seek to regulate the activities of all persons within their territorial jurisdictions, including the power to tax and prosecute those persons, citizen or not. The United States Supreme Court has expressed strong skepticism about the possibility of tribal nations asserting this authority and has placed tight controls on the authority of tribal nations to regulate the activities of non-tribal citizens.

Tribal governments are nations and should …

Factbound And Splitless: Certiorari And Indian Law, Matthew L.M. Fletcher

Matthew L.M. Fletcher

The Supreme Court has long maintained that the certiorari process is a neutral and objective means of eliminating patently frivolous petitions from consideration, but it is well known that the Court is far more likely to grant a cert petition when it questions the outcome below. This qualitative empirical study of preliminary memoranda drafted by the Supreme Court law clerk pool demonstrates the likelihood that the Court’s certiorari process is neither objective nor neutral – and may prejudice certain classes of petitioners. Cert pool clerks applying the subjective certiorari criteria – such as whether there is a legitimate split in …

The Original Understanding Of The Political Status Of Indian Tribes, Matthew L.M. Fletcher

Matthew L.M. Fletcher

This Article will demonstrate that virtually all elements of Indian affairs can be traced to the decision of the United States to recognize Indian tribes as political entities and to make Indian law and policy based on the political status of Indian tribes. Indian law is often assumed to be race law. As a result, observers tend to try to force Indian law into the constitutional race law paradigm. Justice Blackmun’s footnote 24 in Morton v. Mancari – describing federal legislation and rules relating to Indian tribes as a political classification – hit upon the proper understanding of Indian law. …

The Supreme Court's Indian Problem, Matthew L.M. Fletcher

Matthew L.M. Fletcher

No abstract provided.

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.

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 …

Same-Sex Marriage, Indian Tribes, And The Constitution, Matthew L.M. Fletcher

Matthew L.M. Fletcher

A same-sex marriage amendment, depending on the text, might serve to incorporate Indian tribes into the federal union as the third sovereign. The Constitution has not been amended to incorporate Indian tribes into the federal union, rendering their place in Our Federalism uncertain and unpredictable. A same-sex marriage amendment that applies to limit or expand tribal authority to recognize or authorize same-sex marriage could constitute an implicit recognition of Indian tribes as the third sovereign in the American system of federalism. Even an amendment that excludes mention of Indian tribes may have something to say about Indian tribes as the …