Matthew L.M. Fletcher

The Supreme Court ruling in McGirt v. Oklahoma drastically changed the legal jurisdiction of most of the state of Oklahoma under federal law. In 2017 the 10th Circuit held in Murphy v. Royal that the Oklahoma Enabling Act of 1906 never disestablished the reservations of the Five Civilized Tribes and the Supreme Court would concur with that opinion in McGirt v. Oklahoma which means that the Major Crimes Act and other federal and tribal laws relating to Indians now apply in Eastern Oklahoma, including the City of Tulsa, and not Oklahoma law in applicable cases. In doing so, the Supreme Court inadvertently created a white-collar crime jurisdictional nightmare but one that has many solutions that enshrine tribal sovereignty and corporate responsibility among Tulsa based businesses. These solutions include state and tribal compacts, congressional legislation and proactive measures by Tulsa corporations such as “McGirt forms” that list Indian status of involved parties under federal law in case of a crime, choice of law provisions in contracts for civil suits in Tribal Courts so that corporations know what to expect and can shape the outcome of a case and working with local law schools so that new hires are prepared for the post McGirt and Castro-Huerta landscape.

Kevin Washburn on the Biden-Harris Administration’s Expanding Work with Tribes

July 31, 2023Matthew L.M. Fletcher

Kevin Washburn has posted “The March of Co-Management — The Biden-Harris Administration’s Expanding Work with Tribes” on SSRN.

Here is the abstract:

In response to a request from the Foundation of Natural Resources and Environmental Law for a description of the Biden-Harris Administration’s efforts to increase the role of tribal communities in federal land management, this essay provides a variety of ways that the Biden-Harris Administration has worked to provide a stronger relationship between the federal government and tribal governments. These efforts include historic appointments of Native Americans to significant positions, especially in the areas governing natural resources in the federal government. It also includes better processes for incorporating traditional ecological knowledge into decision making, enhancing efforts at tribal consultation, and dramatically increased appropriations for tribal governments. The essay also explains how tribes fit within broader administration priorities, such as the American the Beautiful initiative to conserve 30 percent of American land by 2030, and the Justice 40 initiative, providing 40 percent of federally-appropriated funds invested in support of the clean energy transition to communities burdened by traditional energy infrastructure.

Alexandra Fay on Criminal Jurisdiction and Federalism in Indian Country

July 31, 2023Matthew L.M. Fletcher

Alexandra Fay has posted “Criminal Jurisdiction and Federalism in Indian Country” on SSRN.

Here is the abstract:

This Article examines criminal jurisdiction in Indian Country to describe tribal status in American federalism. In 2022, Congress and the Supreme Court altered the already byzantine scheme of criminal jurisdiction on tribal land through the Reauthorization of the Violence Against Women Act and Oklahoma v. Castro-Huerta, respectively. By instating both tribal and state jurisdiction over a common class of offenders without any structure for coordinating prosecutions, VAWA and Castro-Huerta have necessitated a new kind of inter-sovereign cooperation — in other words, a federalism problem.

To understand the import of these jurisdictional shifts, the Article traces the history of tribal criminal jurisdiction from the American War of Independence to the present. The national policies and decisions that shaped this record can be characterized by both a persistent distrust of tribal justice and an enduring recognition for tribal sovereignty. Given the historic antagonism between the subordinate sovereigns, namely states’ penchant for ignoring and undermining tribal governance, tribes have good reason to be wary of concurrent jurisdiction today.

At its heart, this Article is a study of federalism. It adapts existing theories of federalism to illuminate tribal political status and suggestions federalism values (e.g. innovation, local self-determination, minority empowerment) to guide tribal sovereigns’ continued integration into American constitutionalism. Ultimately, it presents a federalism argument for tribal sovereignty.

Fascinating New Scholarship on the “Wendigocene”

July 31, 2023Matthew L.M. Fletcher

Jonelle Walker has published “Wendigocene: A Story of Hunger” with the Turtle Island Journal of Indigenous Health.

Highly recommended.

The abstract:

My mother once told me that if you speak about Wendigos out loud, they will come. They are cannibals, flesh eaters, spirit eaters. Wendigos survive by consuming the life of others without reciprocity, care, consent, or regard in the name of personal gain or profit. Growing up, I was taught that the Wendigo condition was something that you caught like a disease or that grew within yourself like a cancer. They were monsters, they were the closest thing we had to “human.” Afterall, according to the ideological lineages of Marxism, liberal Enlightenment, and settler colonialism, to be “human” is to be a monster, a capitalist, a cannibal. Each of these ideological lineages root the definition of the “human” in transcendence, defined by property, exhibited through man-made aesthetics rooted in capital, white supremacy, anti-Black racism, anti-Indigeneity, and a false human/nature divide. In this paper, I argue that the term “Anthropocene”, much like the “human” it centers, requires an ontological limiting that fails to encapsulate the fullness of Anishinaabe worlds, but most importantly Anishinaabe responsibility to each other. I offer a reframing from my positioning, where the last 500 years of apocalypses can be theorized through an analysis of the rise of the Wendigos. In conversation with other critiques of the well-problematized “Anthropocene,” this contribution offers a theoretical exploration of Wendigo theory to further support that the term “Anthropocene” is reflective of itself (Davis & Todd, 2017, p. 761-780). I suggest the term “Wendigocene” as an alternative to “Anthropocene” within the context of Anishinaabe communities for Indigenous theorists, as this reframing invokes a responsibility to care for our relations and exercise abolitionist legal praxes which are central to our sovereignty.