Author: Matthew L.M. Fletcher

Washington Law Review Indian Law Restatement Symposium

Matthew L.M. Fletcher

Issue: Volume 97, Number 3 (2022)

Table of Contents

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Table of Contents

Front Matter

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Masthead

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Foreword
Eric D. Eberhard

Lake Michigan from Milwaukee — kinda the same, kinda different than Puget Sound.

Articles

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Bringing Congress and Indians Back into Federal Indian Law: The Restatement of the Law of American Indians
Kirsten Matoy Carlson

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Tribal Sovereignty and Economic Efficiency Versus the Courts
Robert J. Miller

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Off-Reservation Treaty Hunting Rights, the Restatement, and the Stevens Treaties
Ann E. Tweedy

Symposia

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Reflections on the Restatement of the Law of American Indians
Matthew L.M. Fletcher

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Protection for Indian Sacred Sites
William A. Fletcher

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Why Our Stories Matter: A Perspective on the Restatement from the State Bench
Raquel Montoya-Lewis

Greg Ablavsky’s Further Thoughts on the Indian Affairs Powers of Congress

Matthew L.M. Fletcher

Gregory Ablavsky has posted “Further Thoughts on the Constitutional History of Federal Power Over Indian Affairs” on SSRN.

The abstract:

This short piece builds on my earlier response to Robert Natelson’s purported “cite check” of my 2015 Yale Law Journal article by addressing some of the arguments in his new Federalist Society Review article. It argues 1) that Natelson misinterprets Federalist 42, 2) that colonial-era regulations of Indian trade support a quite broad scope for the law merchant, and 3) that Natelson mischaracterized my methodology while making some odd methodological choices of his own. It also briefly offers some new evidence on the historical scope of federal authority in Indian affairs that further supports an interpretation of the meaning of “commerce with the Indian tribes” that encompasses intercourse.

Muskrat vs. Canary: The Future of Federal Indian Law

Matthew L.M. Fletcher

This Thursday @ 7PM it’ll be time to unveil the new book project (now just have to write it).

Federal Indian law is marked by dramatic confrontations between paradigms such as George Washington’s “Savage as the Wolf” policy or Felix Cohen’s “Miner’s Canary” parable. These metaphors reflect the reality that federal Indian law and policy was imposed on tribal nations. Even today, five decades after the beginning of the tribal self-determination era, the Miner’s Canary parable remains the most used metaphorical shorthand to describe Indigenous affairs in the United States, but those metaphors are no longer useful. Tribal nations now possess political and economic power. Congress and the executive branch have largely embraced tribal self-determination. The Supreme Court has not. Or has it? Tribal nations have fared better in the Supreme Court since 2014 than in any other period of American history. Even so, the Court is paradigmatically split. The Anishinaabe creation is a story about the lowly, but heroic, Muskrat as a metaphor to describe modern tribal nations. The Supreme Court is poised to either accept the new paradigm of tribal self-determination or eradicate it in favor of keeping tribal nations weak. It is a paradigmatic battle of the Muskrat versus the Canary.

Miigwetch to John Low at THE school that shall not be named on this blog for the invitation to present!

Montana Federal Court Dismisses Wrongful Death Action, Ordering Exhaustion in Fort Belknap Tribal Court

Matthew L.M. Fletcher

Here are the materials in Grant v. Norton (D. Mont.):

3 Amended Complaint.pdfDownload
12 Request for Stay.pdfDownload
13 Motion to Dismiss.pdfDownload
15 DCT Order.pdfDownload

SCTOUS Grants United States and Arizona Petitions in Navajo Water Case

Matthew L.M. Fletcher

Here was yesterday’s order.

Prior post here.

Thinking if SCOTUS had some good frybread, they’d let Indian country have the nice things we deserve, like an enforceable duty of protection.

Montana Federal Court Dismisses Native Inmates’ Suit over Jail Conditions that Allegedly Violate Hellsgate Treaty Because 11th Amendment Makes State Officials Immune (which a textualist would know says nothing like that whatsoever)

Matthew L.M. Fletcher

Here are the materials in Black Crow v. Lake County Jail, recaptioned In re Conditions at Lake County Jail (D. Mont.):

2 Complaint.pdfDownload
28 Motion to Dismiss.pdfDownload
41 Opposition.pdfDownload
50 Reply.pdfDownload
111 DCT Order.pdfDownload

Four White Men to Argue Brackeen

Matthew L.M. Fletcher

It’s now been 21+ years since the last Indigenous person argued a Supreme Court; 39 tribal or individual Indian parties since that time.

Ann Estin on Equal Protection and the Indian Child Welfare Act

Matthew L.M. Fletcher

Ann Estin has posted “Equal Protection and the Indian Child Welfare Act: States, Tribal Nations, and Family Law,” forthcoming in the Journal of the American Academy of Matrimonial Lawyers, on SSRN.

Here is the abstract:

Congress has long exercised plenary power to set the boundaries of federal, state and tribal jurisdiction, and Supreme Court precedents have required that such legislation be tied rationally to the fulfillment of Congress’s unique obligation to Indian tribes. Exercising this power, Congress set parameters for state and tribal jurisdiction in child welfare and adoption cases with the Indian Child Welfare Act of 1978 (ICWA). In response to the recent Equal Protection challenge to ICWA by a small number of states in Haaland v. Brackeen, many more states have argued in support of the legislation, which addressed longstanding problems in the states’ treatment of Indian children and provided an important framework for cross-border cooperation in child welfare cases. Looking beyond ICWA, this article points to unresolved jurisdictional and conflict of laws challenges in other types of family litigation that crosses borders between states and Indian country. Arguing that citizens of tribal nations should have the same right to bring family disputes to courts in their communities that other Americans enjoy, the article argues for greater cooperation and comity between states and tribes across the spectrum of family law.