Author: Matthew L.M. Fletcher

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.

Eighth Circuit Rejects Challenge to Shakopee Child Custody Decision

Matthew L.M. Fletcher

Here is the unpublished opinion in Van Nguyen v. Foley.

Briefs here.

Louis V. Clark III, Kimberly Blaeser, and Fletcher @ Southeast Wisconsin Festival of Books This Saturday

Matthew L.M. Fletcher

Here.

The Native American Experience through Poetry, the Law, and Memoir
Writers: Louis V. Clark III, Kimberly Blaeser, Matthew Fletcher
Moderator: Tim Thering
Three authors express what it actually means to be Native American through the use of very different words. Explore this culture with the lyricism of poetry, the experience of memoir, and the meaning of the law. 

Kimberly Blaeser, past Wisconsin Poet Laureate and founding director of In-Na-Po, Indigenous Nations Poets, is the author of five poetry collections including Copper Yearning (2019), Apprenticed to Justice (2007), and Résister en dansant/Ikwe-niimi: Dancing Resistance (2020). An enrolled member of the White Earth Nation, Blaeser is an Anishinaabe activist and environmentalist, a Professor Emeritus at UW–Milwaukee, and an MFA faculty member at Institute of American Indian Arts in Santa Fe. She lives in rural Wisconsin; and, for portions of each year, in a water-access cabin near the Boundary Waters Canoe Area Wilderness in Minnesota. Additional information is available here: http://kblaeser.org

Louis V Clark III was born on the Oneida reservation of Wisconsin. Raised during the often troubled, often wonderful decade of the 1960’s, Clark learned to stand up for what he thought was right, aided by the guiding hand of many influential people. He joined forces with his beautiful wife during their high school years and together they ran away to build their own life aided by the Oneida principle of “looking ahead seven generations.” Encountering many obstacles along the way including a poetry professor who said that what he wrote wasn’t poetry and a theater professor who said that if what he wrote was any good that it was already being done. Clark continued to write. In Clark’s fifth decade the University of Arkansas along with the Sequoyah National Research Center published his chapbook “Two Shoes.” This work received an Oneida Fellowship Award and a Wisconsin Arts Board Award. In 2016 the Wisconsin Historical Society Press published his Memoir in Poetry and prose “How to be an Indian in the 21st Century.” This book received the 2017 Midwest Booksellers Choice Award as well as Oneida/Wisconsin Arts Board Award. WHSP published his follow up book, “Rebel Poet” in 2018 and this work received a Midwest Independent Publishers Book award. Clark currently has a play “Little Boy Lost/Stupid Indian” scheduled for airing on public radio sometime this year.

Matthew L.M. Fletcher is the Harry Burns Hutchins Collegiate Professor of Law at Michigan Law. He teaches and writes in the areas of federal Indian law, American Indian tribal law, Anishinaabe legal and political philosophy, constitutional law, federal courts, and legal ethics, and he sits as the Chief Justice of the Pokagon Band of Potawatomi Indians and the Poarch Band of Creek Indians. Professor Fletcher also sits as an appellate judge for the Cabazon Band of Mission Indians, the Colorado River Indian Tribes, the Grand Traverse Band of Ottawa and Chippewa Indians, the Hoopa Valley Tribe, the Lower Elwha Klallam Tribe, the Mashpee Wampanoag Tribe, the Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians, the Nottawaseppi Huron Band of Potawatomi Indians, the Rincon Band of Luiseño Indians, the Santee Sioux Tribe of Nebraska, and the Tulalip Tribes. He is a member of the Grand Traverse Band.