Author: Matthew L.M. Fletcher

Eighth Circuit Affirms Indian Country Drug Conviction over Potentially Interesting Jurisdictional Objections

Matthew L.M. Fletcher

Here is the opinion in United States v. Milk.

Briefs:

Opening Brief

Federal Answer Brief

Reply

An excerpt from the opinion:

Milk, who is Native American and an enrolled member of the Oglala Sioux Tribe, contends that the district court lacked jurisdiction because (1) he was convicted of crimes that are not enumerated under the Major Crimes Act, 18 U.S.C. § 1153,4 and (2) under the General Crimes Act, 18 U.S.C. § 1152, the alleged unlawful acts in this case occurred on the Pine Ridge Reservation and only involved American Indian people. But Milk’s arguments are foreclosed by precedent.

New Student Scholarship on Indian Country Criminal Sentencing

Matthew L.M. Fletcher

Nasrin Camilla Akbari has published “The Gladue Approach: Addressing Indigenous Overincarceration Through Sentencing Reform” in the NYU Law Review. PDF

Here is the abstract:

In the American criminal justice system, individuals from marginalized communi- ties routinely face longer terms and greater rates of incarceration compared to their nonmarginalized counterparts. Because the literature on mass incarceration and sentencing disparities has largely focused on the experiences of Black and Hispanic individuals, far less attention has been paid to the overincarceration of Native peo- ples. Yet there are clear indications that Native peoples are both overrepresented within the criminal justice system and subject to unique sentencing disparities as compared to other ethnicities. While these issues are partly motivated by traditional drivers of criminal behavior, including access barriers to housing, employment, and education, this Note argues that there is a greater systemic issue at play: the enduring legacy of colonialism. Accounting for—and correcting—this legacy in the criminal justice system is a complex task, though not an impossible one. For example, over the past twenty years, the Canadian criminal justice system has implemented a novel, remedial sentencing approach to address the overincarcera- tion of Aboriginal offenders: the Gladue approach. Recognizing the extent to which the Canadian legal system has failed to account for the unique needs, exper- iences, and circumstances of Aboriginal offenders, the Gladue approach mandates an individualized and contextualized approach to sentencing, one which prioritizes community-based alternatives to incarceration and emphasizes restorative justice. This Note proposes two legal pathways by which to transplant the Gladue approach to the American criminal justice system. In so doing, it offers the first comprehensive analysis of the normative and constitutional implications of applying the Gladue approach to the sentencing of Native peoples within the United States. While the approach has challenges and shortcomings, it is neverthe- less a powerful tool by which the American criminal justice system can begin to reckon with its colonial past and present.

The Whitney’s effort to get you to feel good about giving them zhoonya.

Michael McNally on Indian Sacred Sites

Matthew L.M. Fletcher

Michael D. McNally has published “The Sacred and the Profaned: Protection of Native American Sacred Places That Have Been Desecrated” in the California Law Review. PDF

Here is the abstract:

From Standing Rock to San Francisco Peaks, Native American efforts to protect threatened sacred places in court have been troubled by what this Article identifies as the profanation principle: a presumption that places already profaned or degraded by development or pollution can no longer be sufficiently sacred to Native peoples to merit protection. When the Supreme Court of Hawai’i rejected Native Hawaiian challenges to a massive new telescope on Mauna Kea because its summit was already developed, the sole dissenting justice termed it the “the degradation principle”: a view that because eleven telescopes had already despoiled the summit, the new telescope would cause no substantial adverse impacts on natural and cultural resources. This Article draws on religious studies training to show that, from the Ganges River to Jerusalem’s Western Wall, what makes the holy places of the world’s religions sacred seldom hinges on their natural purity. A presumption that Native American sacred places must be pristine to be authentically sacred is discriminatory, rooted in romanticized stereotypes of Native religions as nature piety rather than complex systems of obligation and relationship to sacred places. If the profanation principle seldom manifests as an explicit legal reason for an outcome, the Article demonstrates how consistently it plays out in cases under religious liberty, historic preservation, and environmental law. The Article suggests moving beyond the profanation principle, likening desecrated sacred places to sick relatives in need of healing and intensifying Native obligations to defend the sacred.

More Jaune Smith . . .

Ninth Circuit Rules against Sauk-Suiatte in U&A Matter

Matthew L.M. Fletcher

Here is the opinion in Upper Skagit Indian Tribe v. Sauk-Suiatte Indian Tribe.

Briefs and so on here.

Jaune Smith — it’s as if I took a lot of close-up shots at a Whitney exhibition of her work. . . .

Modoc Nation and FAA Prevail in Challenge to Airport Sale to Tribe

Matthew L.M. Fletcher

Here is the unpublished order in Tule Lake Committee v. FAA:

20230105 – Memorandum Order Affirming Dismissal (9th Cir.).pdfDownload
Jaune Smith

Nebraska Federal Court Rules in HCI Distributing Tax Case

Matthew L.M. Fletcher

Here are the available materials in HCI Distributing v. Hilgers (formerly Peterson) (D. Neb.):

124 HCI Motion for Summary J.pdfDownload
184 DCT Order.pdfDownload

Prior post here.

Montana Court Recognize Duty to Educate Students on Native History

Matthew L.M. Fletcher

Here is the opinion in Yellow Kidney v. Montana Office of Public Instruction:

Order – Order Denying Motion To Dismiss.pdfDownload

Briefs here.

Ute Tribe Sues Farm over Water Rights

Matthew L.M. Fletcher

Here is the complaint in Ute Indian Tribe of the Uintah and Ouray Reservation v. McKee (D. Utah):

1 Complaint.pdfDownload

New Student Scholarship on Tribal Citizenship and Blood Quantum

Matthew L.M. Fletcher

Ashleigh Lussenden has published a Note, “Blood Quantum and the Ever-Tightening Chokehold on Tribal Citizenship: The Reproductive Justice Implications of Blood Quantum Requirements,” in the California Law Review. PDF

The abstract:

Blood often serves as the basis for identity for many groups in the United States. Native Americans, however, are the only population in which blood is a requirement for collective belonging and can be the determining factor for whether one receives tribal benefits and services. Many Tribal Nations use blood quantum, the percentage of Indian blood one has, as a bright-line rule to determine qualification for tribal membership. Initially established as a colonial tool of dispossession and assimilation, tribes adopted blood quantum to ensure the preservation of culture and community.

This Article contends that tribal adoption of blood quantum limits tribal members’ reproductive autonomy and violates the tenets of reproductive justice. Forcing tribal members to consider the blood quantum of their future children limits individual choice of partner and the manner in which tribal members choose to build their families. This limitation of autonomy and violation of reproductive justice principles is especially stark when analyzed in combination with contemporary pressures on Native conception and parenting, including urban migration, dysgenic environmental impacts on fertility, sexual violence, and inadequate, underfunded, and abusive reproductive healthcare. Collectively, these pressures decrease fertility, the number of available partners, and the ability for Native people to conceive and parent within their own communities.

By applying the principles of reproductive justice, Tribal Nations may begin to reassess what belonging means in Native communities and how tribal membership policies can support reproductive autonomy. The current rise of nation-building and concentrated push for self-determination in Native communities provides a unique opportunity to interrogate the priorities of tribal membership requirements and reimagine inclusion and collective belonging in Native Nations.

D.C. Circuit Rejects Federal Recognition of “Pilchuk Nation”

Matthew L.M. Fletcher

Here are the materials in Kanam v. Bureau of Indian Affairs:

Order

Kanam Opening Brief

Answer Brief

Reply