Copyright (c) 2009 All rights reserved. http://works.bepress.com/matthew_fletcher Recent documents in Matthew L.M. Fletcher en-us Thu, 15 Oct 2009 23:19:15 PDT 3600 http://works.bepress.com/matthew_fletcher/45 http://works.bepress.com/matthew_fletcher/45 Wed, 14 Oct 2009 09:10:09 PDT Matthew L.M. Fletcher Indian Law http://works.bepress.com/matthew_fletcher/44 http://works.bepress.com/matthew_fletcher/44 Wed, 14 Oct 2009 09:06:26 PDT Matthew L.M. Fletcher Constitutional Law Indian Law http://works.bepress.com/matthew_fletcher/43 http://works.bepress.com/matthew_fletcher/43 Mon, 02 Mar 2009 13:40:14 PST 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 tribal sovereignty. The Supreme Court has long maintained that the certiorari process is a neutral and objective means of eliminating patently frivolous petitions from consideration. This 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. The Court's clerks overstate the relative merits and importance of petitions filed against tribal interests, while understating the merits and importance of tribal petitions. And the Court's certiorari decisions are even more skewed against tribal interests than the clerks recommend. I study 163 certiorari petitions filed during OT 1986 through 1994, and the accompanying "cert pool" memos that only recently became available through the opening of Justice Blackmun's papers. The results show that a large percentage of petitions brought by tribal opponents received favorable treatment by Supreme Court clerks who simultaneously recommended denial in nearly all tribal petitions. The impact of this weighted review of cert petitions is that a disproportionate number of petitions filed by opponents to tribal interests are granted while very few tribal petitions are granted. The research presented here suggests that the Court's ostensibly neutral and objective measures are neither, and in the hands of the clerks - and the Justices who are their audience - measurably prejudice tribal interests before the Court. Matthew L.M. Fletcher Civil Rights Constitutional Law Courts Judges http://works.bepress.com/matthew_fletcher/42 http://works.bepress.com/matthew_fletcher/42 Sat, 28 Feb 2009 07:59:00 PST 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 in Rhode Island on an important land case, perhaps, because the tribe's citizens did not have significant blood quantum collectively. But in most other cases, the Court is skeptical of tribal government authority because tribal citizenship is based at least in part on race. This means for the Court, especially Justice Kennedy, that non-Indians by blood or ancestry can never be citizens of an Indian tribes. And the Court worries that a tribal government seeking to assert jurisdiction over these persons somehow violates the social contract.I argue, perhaps for the first time, that Indian tribes must move beyond race and ancestry as the single most important means of determining tribal citizenship. It will not be easy for Indian tribes to move beyond race and ancestry, but it is necessary if Indian nations wish to move beyond their status as an afterthought in the American constitutional structure and develop into more complete sovereign nations. I suggest several ways for Indian tribes to alter their citizenship criteria and recommend an incremental solution based on immigration law and policy. Matthew L.M. Fletcher Civil Rights Comparative Law Constitutional Law Immigration Law Indian Law Legal History http://works.bepress.com/matthew_fletcher/41 http://works.bepress.com/matthew_fletcher/41 Sun, 15 Feb 2009 19:11:13 PST 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 act like nations. For Indian nations to progress into self-governing, independent nations within a larger nation, they will need to find a way to include non-Indians in the political processes of the tribal government while still maintaining a distinctive tribal character. I suggest in this paper that Indian tribes either amend their citizenship criteria to allow non-blood Indians to become members, as the United States and other nations have done; or, failing that, adopting a sort of tribal immigration policy under the rubric of federal Indian law that would, perhaps, accomplish the same result over decades. Matthew L.M. Fletcher Civil Rights Constitutional Law Indian Law Jurisdiction Legal History http://works.bepress.com/matthew_fletcher/40 http://works.bepress.com/matthew_fletcher/40 Sat, 14 Feb 2009 07:32:36 PST 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 lower court authority, whether the lower court committed a gross error, or whether an important national interest is at stake - appear to overstate the relative merits and importance of petitions brought by state governments, while understating the merits and importance of petitions brought by others. This dichotomy appears in stark relief in the context of federal Indian law, where a disproportionate number of disputes arise between state and tribal interests. In this study of more than 162 certiorari petitions filed between 1986 and 1994, a majority of petitions brought by state and local governments received favorable treatment from the cert pool while recommending denial in all but a single tribal petition, often labeling them "factbound" and "splitless." While the cert pool recommendations are not binding on the Justices, the gatekeeping function of the cert pool is effective in denying tribal petitioners their day in court. Matthew L.M. Fletcher Civil Rights Constitutional Law Courts Indian Law Judges http://works.bepress.com/matthew_fletcher/39 http://works.bepress.com/matthew_fletcher/39 Wed, 14 Jan 2009 11:29:05 PST American Indian tribes once operated regional trade centers, with broad geographical impact. With the arrival of European traders and settlers, this system began to erode, and later, the treaty and reservation system effectively eliminated the regional Indian economic market. Under the policies of measured separatism and assimilation, American Indians had no broad geographic power. Recently, as the policy of self-determination has taken hold, Indian tribes have begun to assert their economic power through federal government contracts, casino gaming, and trade agreements with foreign governments. This Article argues that this rising involvement has caused a backlash, and that holdover American government policy favoring assimilation and dependence threatens to frustrate emerging tribal participation in the broader economy. Matthew L.M. Fletcher Indian Law http://works.bepress.com/matthew_fletcher/38 http://works.bepress.com/matthew_fletcher/38 Sun, 02 Nov 2008 11:24:16 PST Matthew L.M. Fletcher Indian Law http://works.bepress.com/matthew_fletcher/37 http://works.bepress.com/matthew_fletcher/37 Fri, 09 May 2008 07:03:00 PDT Matthew L.M. Fletcher Administrative Law http://works.bepress.com/matthew_fletcher/36 http://works.bepress.com/matthew_fletcher/36 Thu, 13 Mar 2008 04:28:49 PDT Matthew L.M. Fletcher Indian Law