Bethany Berger | University of Connecticut School of Law (original) (raw)

Papers by Bethany Berger

ABSTRACT This is the table of contents, prefaces, and introductory chapter for American Indian La... more ABSTRACT This is the table of contents, prefaces, and introductory chapter for American Indian Law: Cases and Commentary (2d ed. 2010). The preface for the second edition explains changes from the first edition, and the introductory chapter explains the subject and organization of the book, and provides data regarding tribal and indigenous governments, land, and demographics in the United States.

(American Casebook Series)https://digitalcommons.law.uw.edu/faculty-books/1036/thumbnail.jp

Social Science Research Network, Jan 24, 2006

Law and History Review, May 1, 2015

$Research paper thumbnail of Kelo and the Constitutional Revolution That Wasn\u27t Commentary Essays$

Wesley Horton and Brendon Levesque are right that public outrage over Kelo has overshadowed the r... more Wesley Horton and Brendon Levesque are right that public outrage over Kelo has overshadowed the real facts of the New London plan, and that the decision only affirmed well-established precedent. But while the facts were on New London’s side, those facts were harder to translate to the public sympathy than the story of the white, female plaintiffs effectively publicized by the Institute for Justice in the case. Kelo is also not Dred Scott in even more ways than Horton and Levesque state. Unlike Scott v. Sandford, Kelo preserved the rights of individuals to challenge taking of their homes and receive compensation for the same. For lead plaintiff Susette Kelo, this right to compensation resulted in a pay-out of about four times the value of her little pink house. And while Scott v. Sandford helped trigger a constitutional revolution, Kelo remains good law, and the state legal response to it is more show than substance. Although I agree with the authors on the big picture, I suggest cau...

Social Science Research Network, Nov 7, 2019

Social Science Research Network, Feb 12, 2021

This casebook provides an introduction to the legal relationships between American Indian tribes,... more This casebook provides an introduction to the legal relationships between American Indian tribes, the federal government and the individual states. The foundational cases are incorporated with statutory text, background material, hypothetical questions, and discussion problems to enliven the classroom experience and enhance student engagement. The second edition includes expanded materials on gaming, international and comparative law, and more photographs, images, and suggestions for links to external sources.

Social Science Research Network, Oct 29, 2021

Jotwell: The Journal of Things We Like, 2016

$Research paper thumbnail of It\u27s Not About the Fox: The Untold History of Pierson v. Post$

For generations, Pierson v. Post, the famous fox case, has introduced students to the study of pr... more For generations, Pierson v. Post, the famous fox case, has introduced students to the study of property law. Two hundred years after the case was decided, this Article examines the history of the case to show both how it fits into the American ideology of property, and how the facts behind the dispute challenge that ideology. Pierson is a canonical case because it replicates a central myth of American property law, that we start with a world in which no one has rights to anything and the fundamental problem is how best to convert it to absolute individual ownership. The history behind the dispute, however, suggests that the heart of the conflict was a contest over which community would control the shared resources of the town and how those resources would be used. The historical record is far from complete, so I offer my conclusions tentatively. But this is what I believe it shows. Pierson was among the proprietors, those who had inherited from the town\u27s original settlers specia...

Judge Noonan argued that by concealing the reality of the parties whom the court was acting on, a... more Judge Noonan argued that by concealing the reality of the parties whom the court was acting on, and by obscuring the institutional power of the court in acting on those persons, courts were able to cloak lawmaking in the guise of inevitability and compulsion, rather than human agency and suffering. Id. at 14-28. In a recent book, David Wilkins applied this concept to fifteen Indian law cases, including Rogers. DAVID E. WauLNS, AMERIcAN INDIAN SOVEREIGNTY AND THE U.S. SUPREME COURT: THE MASKING OF JUSTICE (1997). Wilkins' work provides the most thorough legal historical analysis of Rogers to date. See id. at 38-49. This Article, however, focuses more sharply on the history behind the case, 35. See id. 36. See Rogers, 45 U.S. at 571-74. 37. Id. at 571-72. 38. Id. at 572. 39. Id. 40. Id.

The Supreme Court issued its decision in Kelo v. New London ten years ago this June. This short p... more The Supreme Court issued its decision in Kelo v. New London ten years ago this June. This short piece, invited in response to a conference at UConn Law this spring, presents the backstory and aftermath of the case. The article frames the case against the distinctive situation of post-industrial cities like New London, and looks at why the case so resonated with the public. It summarizes the legal impact of the case at the state level and its limitations, and the less visible political impact on governmental decision makers. Finally, the article looks at what happened to New London and the plaintiffs after the case was decided.

Social Science Research Network, 2017

There has long been speculation that the Supreme Court is hostile to Indian tribes. Between 1990 ... more There has long been speculation that the Supreme Court is hostile to Indian tribes. Between 1990 and 2015, tribal interests lost in 76.5 percent of Supreme Court cases distinctly affecting them; the loss rate rose to 82 percent in first decade of the Roberts Court. With four Indian law cases on the docket last year, Native communities were poised for disaster. Newspapers speculated on why tribes couldn’t win in the Supreme Court. By the end of June 2016, however, tribal interests had lost just one case, won two, and the Court split four-four in a fourth, affirming a lower court decision upholding tribal jurisdiction without opinion. This Article cautiously argues that 2016 was not just a blip.One Term does not reverse a pattern of decades, and the Court remains a very dangerous place for Indian tribes. But together with other recent majority and dissenting opinions, the Term suggest a resurrection on the modern Court of an old idea: that tribes are a third sovereign in the federal s...

(American Casebook Series)https://digitalcommons.law.uw.edu/faculty-books/1036/thumbnail.jp

Social Science Research Network, Jan 24, 2006

Law and History Review, May 1, 2015

$Research paper thumbnail of Kelo and the Constitutional Revolution That Wasn\u27t Commentary Essays$

Social Science Research Network, Nov 7, 2019

Social Science Research Network, Feb 12, 2021

Social Science Research Network, Oct 29, 2021

Jotwell: The Journal of Things We Like, 2016

$Research paper thumbnail of It\u27s Not About the Fox: The Untold History of Pierson v. Post$

Social Science Research Network, 2017

PENN LAW REVIEW Online, 2021

“Unlawful acts, performed long enough and with sufficient vigor, are never enough to amend the la... more “Unlawful acts, performed long enough and with sufficient vigor, are never enough to amend the law.” So reads McGirt v. Oklahoma, the most important reservation boundary case in the history of the Supreme Court. But before McGirt, courts often rewarded unlawful acts with reservation diminishment. This Article first places McGirt in the context of the Muscogee (Creek) Nation’s century long fight to restore sovereign rights illegally denied after allotment, and the even longer fight by the Muscogee Nation and others to survive a trail of broken treaty promises. It then corrects the false assumptions about the past and present of reservation boundaries that led the Court to turn lawbreaking into law.
As to the past, I show that the allotment-era Congress knew that reservations did not depend on land tenure, and that its statutes distinguished between allotment acts that diminished reservations and those that did not. States, however, regularly broke the law, asserting jurisdiction in violation of federal Indian law rules. Before McGirt, however, the Court falsely assumed that “[t]he notion that reservation status of Indian lands might not be coextensive with tribal ownership was unfamiliar at the turn of the century,” and so justified relying on state violations of tribal sovereignty as “evidence” of congressional intent.
As to the present, I show that reservation status is not disruptive for non-Indian communities, and often benefits tribal and non-tribal citizens alike. In high-profile cases in Tacoma, Washington and Pender, Oklahoma, life in those communities began to improve at the same time reservation boundaries were affirmed. Throughout the country tribal governments contribute to the economies and social welfare of their surrounding communities. The Muscogee Nation, whose sophisticated law enforcement, health care, governance, and economic development arms already partner with non-tribal governments throughout its territory, exemplifies the benefits that strengthening tribal self-governance can provide.

Connecticut Law Review, 2019

The pipeline protests at Standing Rock continued a long tradition of Native people coming togethe... more The pipeline protests at Standing Rock continued a long tradition of Native people coming together to protect natural resource rights. Indeed, this Essay argues, natural resource disputes are responsible for core advances in Native peoples' rights in the twentieth century. Although there are many examples, I focus on four particularly influential disputes. First, in 1905, at the height of an aggressively assimilationist federal policy, United States v. Winans preserved and expanded principles of treaty rights and preemption of state law. Next, in the 1920s, Pueblo struggles over water catalyzed new federal Indian policies that turned away from assimilation and toward tribal self-determination. Then, in the 1960s, a resurgent struggle for off-reservation fishing rights both created powerful judicial precedents and initiated a new era of pan-Indian activism and federal Indian policy. Most recently, the global indigenous struggle against natural resources exploitation by states and multinational corporations was decisive in moving international law to recognize indigenous rights as human rights. The resurgence of rights of tribal nations is about much more than natural resources. Indigenous peoples have always struggled for self-determination broadly defined; understanding them solely through traditional resource use denies that self-determination. But the pivotal role of natural resource struggles is not a coincidence. Because so many indigenous groups built key parts of their cultures around resource use, natural resource claims have helped reinvigorate sometimes-frayed tribal bonds and identities. Although rooted in tradition, these struggles have also been uniquely generative, inspiring new forms of protest and creating new coalitions and organizations. In the twentieth century, as all peoples have

Washington Law Review, 2019

Equality arguments are used today to attack policies furthering Native rights on many fronts, fro... more Equality arguments are used today to attack policies furthering Native rights on many fronts, from tribal jurisdiction over non-Indian abusers to efforts to protect salmon populations in the Pacific Northwest. In 2018, these efforts won a potentially devastating victory when a federal district court held the Indian Child Welfare Act unconstitutional in Brackeen v. Zinke. Such attacks align with a modern movement challenging many claims by disadvantaged groups as unfair special rights. In American Indian law and policy, however, these arguments have a long history, dating almost to the founding of the United States. Tribal removal, confinement on reservations, involuntary allotment and boarding schools, tribal termination—all were justified, in part, as necessary to achieve individual Indian equality. The results of these policies, justified as equalizing the savage, are now recognized as savage themselves, impoverishing Native people and denying them fundamental rights.

Many, including some tribal advocates, respond to equality-based attacks by arguing that sovereignty, cultural difference, or some other value trumps the value of equality in Indian law and policy. This Article, in contrast, reveals the egalitarian roots of demands for tribal rights. It argues that such rights are in fact demands to recognize the equality of tribes as governments, so the proper comparison is to rights of other sovereign groups. This governmental equality yardstick, moreover, has an even older historical pedigree and has repeatedly triumphed when U.S. policy bent toward justice.

The governmental rubric does not lead to an easy metric for equality claims—tribal nations and their people are far too entwined with non-Native governments and communities for that. Additional principles, including individual equality, the history and context of modern disputes, and the impact of particular measures on the most vulnerable, are relevant as well. To show how these principles apply, I conclude by examining modern conflicts, including those over the Indian Child Welfare Act, Cherokee freedmen citizenship, and off-reservation fishing rights.