The American Law Institute, which held its annual meeting last week in Washington DC, is poised to undertake a new project on American Indian Law. Professor Matthew L.M. Fletcher of Michigan State University College of Law led the discussion at the annual meeting. Previously, he convened a conference on American Indian law to discuss whether the ALI could produce work that would have a positive impact in this area.
Professor Fletcher is the right person for the job. In addition to his expertise in American Indian law, he also has an especial sensitivity to and appreciation for legal history scholarship, which is essential, as he writes, for understanding modern American Indian law. His own work includes Preconstitutional Federal Power, 82 Tulane L. Rev. 510 (2007), among others. A post about the ALI project and Professor Fletcher's role can be found on his blog, Turtle Talk.
Professor Fletcher’s memo to ALI members emphasized the need for historical understanding for the modern undertaking. He noted, for example: “Federal government policymaking has outlined American Indian affairs throughout American history. The fluctuating history of federal-tribal legal affairs is extremely well documented.” The memo canvasses the “Treaty Era”, the “Removal Era,” and the “Reservation Era,” with numerous citations to the scholarly literature.
Appropriately enough for the ALI, Professor Fletcher also invokes the memory of Karl Llewellyn and what he termed Llewellyn's “implicit contributions” to the project on American Indian Law. Professor Fletcher wrote:
In 1941, Professor Llewellyn and E. Adamson Hoebel published The Cheyenne Way: Conflict and Case Law in Primitive Jurisprudence, a deeply influential work of legal anthropology involving the reduction of Cheyenne dispute resolution outcomes to writing. Some argue that Professor Llewellyn applied his experience studying the Cheyenne Indians as the Reporter of Article 2 (Sales) of the Uniform Commercial Code, perhaps persuading Llewellyn to draft Article 2 to remove many of the formalistic aspects of contract. We meet to hopefully evoke that teaching once again.