Melissa L Tatum

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Scholarly Contributions

Books

• Tatum, M. L., & Christensen, G. (2019). Reading American Indian Law: Foundational Principles. Cambridge University Press.
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  Professor Christensen and I have been offered and have accepted a contract to prepare a book entitled "Reading American Indian Law: Foundational Principles." The book excerpts 16 law review articles identified as part of our empirical study, providing introductory material to set the stage for each except. Each excerpt is also followed by notes and comments material to provide guidance for discussion.
• Tatum, M. L., & Urbina, A. (2022). Implementing VAWA 2022’s Special Tribal Criminal Jurisdiction and TLOA’s Enhanced Sentencing Authority: Lessons from the Pascua Yaqui Tribe.
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  When Congress enacted VAWA 2022, we revised and updated our earlier version, which focused on VAWA 2013. Due to time pressures, the second edition (like the first edition) did not go through a formal publisher, but it received extensive circulation in PDF format
• Tatum, M. L. (2020). Reading American Indian Law: Foundational Principles. North America (note: was published in Europe in December 2019): Cambridge University Press. doi:https://doi.org/10.1017/9781108770804
• Tatum, M. L. (2018). Indigenous Justice: New Tools, Approaches, Spaces. Palgrave McMillan.
• Tatum, M. L., White Eagle, M. L., & Beetso, C. H. (2015). Guide for Drafting or Revising Tribal Laws to Implement the Tribal Law and Order Act and the Violence Against Women Reauthorization of 2013.

Chapters

• Tatum, M. L., & Crepelle, A. (2022). Oliphant v Suquamish Tribe. In Feminist Judgments: Rewritten Criminal Law Opinions. Cambridge University Press.
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  This book is part of a series. Each chapter consists of two parts: a commentary to provide context and a rewritten version of an opinion. I am the author of the rewritten opinion and Professor Crepelle wrote the commentary.
• Christensen, G., & Tatum, M. L. (2019). Introduction: Responding to a Changing Field. In Reading American Indian Law: Fundamental Principles. Cambridge University Press. doi:10.1017/9781108770804.002
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  Thirty years ago the Indian law community was small enough that it was possible for even a scholar new to the field to keep up with most of the Indian law scholarship published annually. However, as our field has proliferated, it has also fragmented, and today more than two hundred pieces of new legal scholarship are published annually in law reviews alone.* These law reviews are not just ivory tower musings; there are now some scholarly contributions which are as fundamental for the study of Indian law as many cases or statutes. These articles help to contextualize the changing doctrines announced by the Court, reconcile contradictory authority, challenge assumptions of race/place/power, and push for courts, tribal leaders, legislators, lawyers, educators, and students to adopt new ways of thinking about our fundamental doctrine. However, with so many new contributions we realized that new scholars may miss some of the most impactful articles, and even the progenitors of the field will have forgotten about some of the best ideas put forward by colleagues over the years. While several federal Indian law textbooks exist to preserve judicial doctrine, there is no definitive collection of related legal scholarship.
• Hendry, J., Tatum, M. L., Jorgensen, M., & Howard-Wagner, D. (2018). Introduction. In Indigenous Justice: New Tools, Spaces, and Approaches. Palgrave Macmillan. doi:10.1057/978-1-137-60645-7_1
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  In December 2013, a small group of academics gathered at the University of Leeds for a working paper conference entitled Spaces of Indigenous Justice. According to the concept paper for the workshop, the plan was to use the ‘spatial turn’ that occurred in the humanities as a foundation for exploring new conceptions of space and to facilitate dialogue across academic disciplines under the umbrella of socio-legal studies. The ultimate objective of this interdisciplinary and comparative project is to bring together scholars of law, legal theory, sociology, political philosophy, anthropology, geography, and public policy in order to consider ‘spaces’ of Indigenous justice and governance, as well as those of interaction, transfer, reciprocity, recognition, and hybridity between the Indigenous and non-Indigenous worlds.
• Hendry, J., Tatum, M. L., Jorgensen, M., Howard-wagner, D., & Jorgensen, M. R. (2018). Introduction : Indigenous Justice: New Tools, Approaches, and Spaces. In Indigenous Justice: New Tools, Approaches, and Spaces. Palgrave Macmillan.
• Tatum, M. L., & Hendry, J. (2018). Building New Traditions: Drawing Insights From Interactive Legal Culture. In Indigenous Justice: New Tools, Spaces, and Approaches(pp 22 pages/ 10,100 words). Palgrave MacMillan.
• Tatum, M. L., & Hendry, J. (2016). Constitution as Dialogue: Lessons from the American Experience. In Constitutional Recognition of Indigenous Australians: Comparative and Critical Perspectives(p. 17). Federation Press.
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  The debate in Australia over whether the constitution should be amended to recognise Aboriginal and Torres Strait Islander peoples is about more than just altering a document – it is about national identity, past, present and future. The identity issues at play in Australia are more than religious or ethnic differences; Australia’s cultural plurality effectively takes the form of an asymmetric duality, that is to say, it comprises the descendants of both the Indigenous inhabitants and the European colonisers. These communities are very different politically and socially, and these differing socio-political dynamics are further complicated by Australia’s colonial legacy. Indeed, that these diverse cultures exist and persist today creates the situation of robust cultural pluralism which, along with Australia’s politico-legal monism, gives rise to the very tension that we explore throughout this chapter. It is our contention that this tension is generated by the conjunction of two historical events: in its erosion of Indigenous systems of law and governance, colonisation removed from Aboriginal and Torres Strait Islander peoples the possibility of political participation in their own governments, while their subsequent exclusion from the constitutionalisation process of federation effectively silenced their collective voice. The process of constitutional reform requires un-muting that collective voice and giving it a channel on which to speak and be heard.
• Hendry, J., & Tatum, M. L. (2016). Constitution as Dialogue: Legal Pluralism and the American Experience. In Constitutional Recognition of Australia’s First Peoples, (Young, Nielsen & Patrick eds). Federation Press.
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  This collection of essays explores the history and current status of proposals to recognise Aboriginal and Torres Strait Islander Peoples in the Constitution of Australia. The book had its genesis in a colloquium co-hosted by the University of Southern Queensland and Southern Cross University, attended by scholars from Australia and overseas and prominent participants in the recognition debates. The contributions have been updated and supplemented to produce a collection that explores what is possible and preferable from a variety of perspectives, organised into three parts: 'Concepts and Context', 'Theories, Critique and Alternatives', and 'Comparative Perspectives'. It includes work by well-regarded constitutional law scholars and legal historians, as well as analysis built from and framed by Indigenous world views and knowledges. It also features the voices of a number of comparative scholars – examining relevant developments in the United States, Canada, the South Pacific, the United Kingdom, New Zealand and South America. The combined authorship represents 10 universities from across Australia, the United Kingdom, the United States and Canada. The book is intended to be both an accurate and detailed record of this critical step in Australian legal and political history and an enduring contribution to ongoing dialogue, reconciliation and the empowerment of Australia's First Peoples.

Journals/Publications

• Tatum, M. L. (2019). Customary Law of Indigenous Communities: Making Space on the Global Environmental Stage. TEL, 8200 words.
• Ablavsky, G., Berger, B., Christensen, G., Eaglewoman, A., Fort, K. E., Graham, L., Hedden-nicely, D., Hoffmann, H. M., Hoss, A., Kalt, J., Krakoff, S., Lavelle, J. P., Leeds, S., Mills, M., Pomp, R., Rolnick, A., Salzberg, K. C., Schwartz, J. I., Singer, J. W., , Stark, K., et al. (2021). Brief for Indian Law and Policy Professors as Amici Curiae Supporting Petitioner in United States v. Cooley. SSRN Electronic Journal. doi:10.2139/ssrn.3859647
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  Amici curiae are 25 scholars who teach, write, and/or practice in the area of federal Indian law and federal Indian policy. The amici are concerned with the Ninth Circuit Court’s decision in United States v. Cooley, 919 F.3d 1135 (9th Cir. 2019). There, the circuit court held that tribal police officers lack authority to briefly detain and search a non-Indian on a public highway running through the Crow Reservation unless it is either “apparent” or “obvious” that the non-Indian has violated state or federal law. Under that theory, the court affirmed the district court’s decision to suppress drug and firearm evidence obtained from a non-Indian defendant by a tribal law enforcement officer. The amici urge the Supreme Court to reverse the Ninth Circuit decision as the circuit court’s legal theory contradicts the custom, tradition, and policy of policing, as well as the treaties between the United States and indigenous nations. This all demonstrates that the United States has long recognized tribal authority to detain and search non-Indians.
• Tatum, M. L. (2019). Customary Law of Indigenous Communities: Making Space on the Global Environmental Stage. Michigan Journal of Environmental and Administrative Law, 9.
• Tatum, M. L. (2020). Customary Law of Indigenous Communities: Making Space on the Global Environmental Stage. Michigan Journal of Environmental & Administrative Law, 9(1), 77-105. doi:10.36640/mjeal.9.1.customary
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  The high stakes often involved in controversies regarding who owns valuable natural resources and who has the authority to regulate environmental contaminants have resulted in fierce legal battles and struggles to establish and define international principles of law. Grand theoretical debates have played out on the international stage regarding the principle of free, prior, and informed consent and the legal contours of corporate social responsibility. Meanwhile, often under the radar, Indigenous people around the world have worked to create a sustained niche for their community and culture in the face of exploitation and environmental devastation at the hands of the dominant culture. Working both within and outside of formal legal systems, Indigenous communities have consciously stayed rooted in their customary law and traditions to address the biggest challenges facing their way of life. As the beginning of an effort to study these approaches more thoroughly, this article sets forth a taxonomy for classifying different uses of the customary law of Indigenous peoples. A taxonomy will provide a common language for identifying and discussing these efforts and how they fit into a multicultural, international legal system.
• Tatum, M. L. (2019). Customary Law of Indigenous Communities: Making Space on the Global Environmental Stage. Michigan Journal of Environmental and Administrative Law, 9(1), 29.
• Hendry, J. (2018). Justice for Native Nations: Insights from Legal Pluralism. Arizona Law Review, 60(1), 91-113.
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  This Article makes the case that, despite being underused by U.S. scholars in the field of Indian and Indigenous peoples law, a legally pluralist approach can and does provide vital conceptual insights. Not only does legal pluralism supply an important framework through which to conceptualize and address existing power imbalances between Indian tribes and the federal government, but it also makes instances of interaction between these different and yet connected normative orders—or legal cultures—readily more apparent. Scholarly arguments within this research field in the United States tend to take the form of either wholehearted reliance on constitutional and human rights advocacy to address injustices or the wholesale rejection of the Anglo-American legal system as simply incompatible with indigenous norms and traditions. By contrast, and in proposing an alternative to this academic deadlock, this Article submits that these distinct legal cultures must necessarily interact, and that these interactions are always fertile ones. Drawing on Robert Cover’s concept of “jurisgenerativity” to inform an interactive conception of legal culture, it is argued that this has the capacity to lay a foundation for discursive approaches capable of giving rise to new, mutual traditions.
• Tatum, M. L., & Christensen, G. (2018). Reading Indian Law: Evaluating Thirty Years of Indian Law Scholarship. Tulsa Law Review, 54(1), 31 pp / 12,500 words.
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  This article surveys thirty years of law review articles and compiles a formal ranking system to create a list of the 100 most influential Indian law scholarly pieces from the last thirty years. As Indian law has grown from a niche field offered by a couple schools to a robust legal discipline it is now impossible for the thousands of professors, students, practitioners, and judges to identify the most important pieces published each year. This piece, with its first of its kind approach to ranking Indian law scholarship, has the potential to not only highlight other important works but to become an article that is itself the focus of conversation.
• Hendry, J., & Tatum, M. L. (2016). Human Rights, Indigenous Peoples, and the Pursuit of Justice. Yale Law & Policy Review, 34(2).
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  There are three major problems with the use of the rights-based approach to tackle issues of Indigenous justice: It privileges (the worldview of) the dominant legal culture; It artificially restricts the conversation about causes of and solutions to problems of Indigenous justice; and It masks the inherent tension between human rights and legal pluralism. We explore the first of these problems in Part I by examining what is meant by a “rights-based approach,” how those ideas came into being, and how they differ from Indigenous conceptions. We address the second problem in Part II, which examines six representative U.S. cases and the patterns that can be derived from those cases. In Part III we turn to the third issue, which we operationalize in order to begin building possible solutions to the problem and possible alternate approaches to achieving justice for Indigenous people.
• Tatum, M. L. (2016). Lessons from the United States on Building More Effective Means of Addressing Indigenous Child Welfare Issues. Australia Indigenous Law Review, 23.
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  The socio-economic indicators for Indigenous children are devastating, and it is imperative that effective methods be found to address these problems. Unfortunately, most efforts to date have focused on only one aspect of the problem (although which aspect has varied). This narrowed focus all too often results in an incomplete understanding of the root causes of the problem, which in turn results in solutions that are often simplistic and ineffective. These problems are further complicated by the friction that exists between the federal, state, and tribal governments as they compete for authority to handle a wide variety of matters, including family and child welfare cases. Two recent pilot programs in the United States, however, demonstrate both promising results and hope for the future. Both pilot programs focus on domestic violence and both take a more nuanced look at issues impacting child welfare. This article explores those programs, how they can be used to build more effective methods of improving the well-being of America’s Indigenous children, and whether those methods are applicable outside the U.S. context.
• Tatum, M. L., & Hendry, J. (2015). Human Rights, Indigenous Peoples, and the Pursuit of Justice. Yale Law & Policy Review, 34(2), 34.
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  As Indigenous people in the U.S. and around the world gain a more powerful voice, they are increasingly bringing claims for justice before a variety of tribunals. Many, if not most, of these claims have failed, causing scholars and activists to focus attention on how more effectively to vindicate the rights secured to Indigenous people by national and international laws. This article argues that Western legal culture, and the rights-based approach that forms its foundation, is often ill suited to accommodating claims made by subaltern legal cultures. To the extent that we can move beyond a rights-based approach – and we must – there must be greater acknowledgement at both national and international levels of the importance of contextual considerations to issues of Indigenous justice, along with genuine commitments to legal pluralism.
• Tatum, M. L., & Urbina, A. (2016). On-the-Ground VAWA Implementation: Lessons From the Pascua Yaqui Tribe. ABA Judges Journal, 55, 8-.
• Spoo, R., & Tatum, M. L. (2010). Does Gender Influence Attitudes toward Copyright in the Filk Community. The American University journal of gender, social policy & the law, 18(2).
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  I. Filk and the Filk Com m unity 220 A. The Origins of the Filk Movement 220 B. Intellectual Property Implications of Filk Creations 223 II. Intellectual Property Issues in Filk 229 A . C opyright for Songs 229 B . F air U se 233 C . Parody as Fair U se 236 D . C reative Com m ons 238 III. S urvey 2 39 A . Study M ethodology 240 B . F indings 24 1 C . Song D atabase 242 D . Filk Survey D atabase 246 E . B asic B ackground 246 F . Types of Songs 250 G. Understanding of Copyright and Intellectual Property Law ...... 250 H. Attitudes and Approaches to Copyright and Intellectual Property L aw 253 IV . C onclusion 254
• Tatum, M. L. (2009). Identity and authenticity in the filk community. Transformative Works and Cultures, 3. doi:10.3983/twc.2009.0139
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  As a result of several studies examining the relationship between identity and music subcultures, sociologists have developed a framework for analyzing those relationships. I apply this framework to the filk community, using the question "Is wizard rock filk?" as a vehicle for exploring slippery questions: What is filk? What is the filk community? What does it mean to be a filker? Part of the difficulty with defining these terms rests with the fact that people approach filk in different ways; it can be one of many activities at a convention, a genre of music, a subculture, or some or all of these. Although both wizard rock and filk are musical movements within fandom, I conclude that the answer to the question "Is wizard rock filk?" depends on the context of who is answering the question and what perspective that person holds with respect to the filk community. This dependence on perspectives is particularly important in the filk community and has repercussions for the larger fan community because one of the hallmarks of these fan communities is a tolerance of differing perspectives.
• Deer, S., & Tatum, M. L. (2003). Tribal Efforts to Comply with VAWA's Full Faith and Credit Requirements: A Response to Sandra Schmieder. Tulsa Law Review, 39(2), 403-418.
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  With this statute, Congress intended to make one protection order valid throughout the United States. The "one order" system would allow those persons holding a protection order to avoid the hurdles and hassles of obtaining multiple protection orders, one for each jurisdiction in which the person travels, lives, or works. Although VAWA's mandate is broad, Congress left the details of how to accomplish that mandate up to each state and each tribe. As a result, each jurisdiction can use different procedures, so long as the congressional objective is achieved. Law
• Tatum, M. L. (2001). A Jurisdictional Quandary: Challenges Facing Tribal Governments in Implementing the Full Faith and Credit Provisions of the Violence Against Women Acts. Kentucky Law Journal, 90(1).
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  Over the last twenty-five years, the Supreme Court has consistently eroded the sovereignty of Indian tribes, largely by limiting their jurisdiction over persons who are not members of the tribe. The Court's decisions have created different sets of jurisdictional rules for tribes, states, and the federal government, resulting in a complex set of rules that is difficult to master even for lawyers who work regularly in Indian law. The full faith and credit requirements of the Violence Against Women Act are a paradigmatic example of the problems stemming from these complicated rulings. The special jurisdictional rules for tribes have tripped up Congress's efforts to create a national blanket of coverage for those individuals holding protection orders. In this article, published in the Kentucky Law Journal, I explore the jurisdictional rules that apply to state and to tribes and examine the impact of those different rules on VAWA's Full Faith and Credit provisions. The article also includes a model tribal code for enforcement of foreign protection orders.
• Tatum, M. L. (2001). Symposium: Native American Law--Foreword. Tulsa Law Review, 37(2), 481-484.
• Tatum, M. L. (2000). Extending the Status Quo: Indian Law and the Supreme Court's 1999-2000 Term. Tulsa Law Review, 36(1), 195-216.

Presentations

• Tatum, M. L. (2023, April).

  Moderated panel on Tribal Co-Management of Federal Lands

     

  . Symposium on Indigenous Land Stewardship. Tucson, Arizona, USA: AJELP'.
• Tatum, M. L. (2018, May). Justice for Native Nations: New Tools, Spaces, and Approaches. Udall Center Fellows Presentation. Tucson, Arizona: The University of Arizona's Udall Center for Studies in Public Policy.
• Tatum, M. L. (2017, September). Customary Law of Indigenous Communities: Making Space on the Glabal Stage. Symposium on Global Environmental Law. Glasgow, Scotland: University of StrathclydeCustomary Law of Indigenous Communities: Making Space on the Glabal Stage, presented as part of the University of Strathclyde’s Symposium on Global Environmental Law, September 2017, posted on youtube at https://www.youtube.com/watch?v=KQ2FAxWrIZc.
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  Customary Law of Indigenous Communities: Making Space on the Glabal Stage, presented as part of the University of Strathclyde’s Symposium on Global Environmental Law, September 2017, posted on youtube at https://www.youtube.com/watch?v=KQ2FAxWrIZc

Others

• Tatum, M. L., & Hendry, J. (2020, July). Situating McGirt: SCOTUS and the Role of Precedent. Socio-Legal Studies Association’s Blog, http://slsablog.co.uk/blog/blog-posts/situating-mcgirt-v-oklahoma-scotus-and-the-role-of-precedent/. http://slsablog.co.uk/blog/blog-posts/situating-mcgirt-v-oklahoma-scotus-and-the-role-of-precedent/
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  Blog post discussing importance and impact of major US Supreme Court decision
• Tatum, M. L. (2018, February). No Religious Freedom for Traditional Native Religion. Berkley Center Forum (Georgetown University).
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  No Religious Freedom for Traditional Native Religions, (Blog essay responding to “Using a Religious Freedom Framework to Protect the Rights of Native Americans”)https://berkleycenter.georgetown.edu/forum/using-a-religious-freedom-framework-to-protect-the-rights-of-native-americans/responses/no-religious-freedom-for-traditional-native-religions (February 20, 2018)
• Tatum, M. L. (2018, February). Tribal Governments and the Death Penalty. Native America Calling Radio Show.
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  panelist along with Kevin Washburn on radio call in show
• Tatum, M. L., & Hendry, J. (2016, December). Contested Spaces and Cultural Blinders: Perspectives on the Dakota Access Pipeline. Law At the End of the Day Blog. http://lcbackerblog.blogspot.com/2016/12/jen-hendry-melissa-tatum-contested.html
• Tatum, M. L., & Hendry, J. (2016, June 2016). Dehumanization and Control: Not a Gorilla, Not an Emblem.. Law at the End of the Day (Blog). http://lcbackerblog.blogspot.com/2016/06/dehumanization-and-control-essay-by.html
• Tatum, M. L. (2015, February 2015). In Memoriam: G. William Rice. Law at the End of the Day (BLog). http://lcbackerblog.blogspot.com/2016/02/in-memorium-g-william-bill-rice.html