Matthew L.M. Fletcher

Student Note on Native Voting Rights

February 9, 2023Matthew L.M. Fletcher

Noelle N. Wyman has published “Native Voting Power: Enhancing Tribal Sovereignty in Federal Elections” (PDF) in the Yale Law Journal. Here is the abstract:

Members of tribal nations are disproportionately burdened by barriers to voting, from strict voter identification and registration requirements to inadequate language assistance and inaccessible polling locations. Restrictive voting laws are on the rise, while the avenues for challenging them under the prevailing model of voting rights are narrowing. This Note advocates for a different approach to conceptualizing and combatting Native American voter suppression.

First, it advances a new jurisprudential theory centered on tribal sovereignty: suppressing the Native vote not only denies rights to individual citizens but also denies sovereign power to tribes. Historically, states required Native American people to renounce tribal membership, culture, and lands to vote. Today, states and localities continue to denigrate tribal sovereignty in the administration of elections, such as by rejecting tribal-issued IDs and interfering with tribes’ organization of their own political communities. Apart from securing the fundamental rights of individual Native citizens, Congress has a substantive duty to secure tribal sovereignty in federal election administration that is rooted in its trust obligation to tribes.

Second, this Note proposes a new legal framework for enhancing Native voting power: Congress should require states and local election officials to negotiate with federally recognized tribes toward the formation of tribal-state compacts governing federal election administration in Indian Country. This framework would relieve tribes of the burdens that they currently carry to initiate collaboration with local election officials, fill gaps in voter assistance, and challenge unlawful voting restrictions in court. Meanwhile, it would involve tribes in the process of lawmaking and regulation, enabling them to exert a measure of sovereign power over federal elections in Indian Country.

Interview with Fletcher and Rebecca Tsosie on Indian Law

February 9, 2023Matthew L.M. Fletcher

Here, on Prism, is “Supreme Court Rulings Undermine Indian Law.”

An excerpt:

Levy Uyeda: What is sovereignty, and how has its definition changed over time?

Fletcher: Sovereignty, I suspect, is not really an Indigenous principle. It comes from the notion that there is an all powerful sovereign entity like a king that has an absolute monopoly on violence, over lands, and over the people on those lands, who typically are called subjects. By offering individual rights to people in the U.S. we’ve papered over some of the difficult aspects of that understanding of sovereignty. On one hand, when tribes assert sovereignty, it means tribes are saying that there is a hierarchical group of people and an elite that makes decisions for all others beneath them.

Tsosie: I do agree that the terminology of “sovereignty” is problematic because Anglo-American law and jurisprudence does give that hierarchical meaning that comes out of English tradition.

I tell my students that the term “property,” which also has that Western meaning, along with “sovereignty,” are both modes of discourse. If you think about these terms in the context of a treaty, the treaty is designed to be a contract between sovereigns.

Tribe and State Offer Additional Evidence in Line 5 Matter before Michigan Public Service Commission

February 8, 2023Matthew L.M. Fletcher

Here are the new materials:

Bay Mills Experts.pdf Download

MPSC Testimony.pdf Download

SCOTUS Sets Oral Argument Dates for Navajo and LDF Cases

February 7, 2023Matthew L.M. Fletcher

Arizona v. Navajo will be argued on March 20, 2023.

LDF v. Coughlin will be argued on April 24, 2023.

Ray Cross and Alex Skibine Walk On

February 6, 2023Matthew L.M. Fletcher

It’s been a terrible last few weeks in Indian law — two of the most accomplished, passionate, and delightful Native men I have ever met have walked on. More when I gather myself.

Here is the notice for Ray Cross, who died on January 24, 2023.

Here is the notice for Alex Skibine, who died on February 4, 2023.

Oklahoma Federal Court [with New Mexico Judge] Dismisses Cherokee Citizens Claims against Oklahoma on State Court Exhaustion Grounds

February 6, 2023February 7, 2023Matthew L.M. Fletcher

Here are the materials in Pickup v. District Court of Nowata County (N.D. Okla.):

18 Counties Motion to Dismiss

24 District Attorneys Motion to Dismiss

27 Towns Motion to Dismiss

70 Clerks Motion to Dismiss

71 Clerk Edwards Motion to Dismiss

72 Clerk Newberry Motion to Dismiss

84 Reply in Support of 18

85 Reply in Support of 24

86 Reply in Support of 27

87 Owasso Motion to Dismiss

88 Reply in Support of 70

89 Reply in Support of 71

90 Reply in Support of 72

94 Opposition to 87

95 Reply in Support of 87

143 Tribes Motion to File Amicus Brief

143-1 Amicus Brief

170 DCT Order

Complaint here.

Fletcher on Due Process and Equal Protection in Michigan Anishinaabe Courts

January 31, 2023Matthew L.M. Fletcher

The Michigan State Law Review Forum has published my short article, “Due Process and Equal Protection in Michigan Anishinaabe Courts.” Check it out.

Burt Lake Band Attempting to Re-open Federal Recognition Suit

January 31, 2023January 31, 2023Matthew L.M. Fletcher

Here are the new materials in Burt Lake Band of Ottawa and Chippewa Indians v. Haaland (D.D.C.):

63-1 Burt Lake Motion

Docket No. 64: MINUTE ORDER. Federal courts are courts of limited jurisdiction and the law presumes that “a cause lies outside this limited jurisdiction.” Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994); see also Gen. Motors Corp. v. EPA, 363 F.3d 442, 448 (D.C. Cir. 2004) (“As a court of limited jurisdiction, we begin, and end, with an examination of our jurisdiction.”). Subject matter jurisdiction may not be waived, and “courts may raise the issue sua sponte.” NetworkIP, LLC v. FCC, 548 F.3d 116, 120 (D.C. Cir. 2008), quoting Athens Cmty. Hosp., Inc. v. Schweiker, 686 F.2d 989, 992 (D.C. Cir. 1982). Indeed, a federal court must raise the issue because it is “forbidden… from acting beyond [its] authority, and ‘no action of the parties can confer subject-matter jurisdiction upon a federal court.'” Id., quoting Akinseye v. Dist. of Columbia, 339 F.3d 970, 971 (D.C. Cir. 2003). In connection with the 63 Motion to Rule Upon Constitutional Claims and For Permanent Injunction, then, plaintiff must show cause by January 6, 2023 why the question of the validity of the proposed rule would be ripe at this time, and why the Court has subject matter jurisdiction to consider the constitutional issues when there is no live controversy before it. The 2015 rule has been vacated but its replacement has not yet been promulgated, so plaintiff must explain why it is not simply seeking an advisory opinion. SO ORDERED. Signed by Judge Amy Berman Jackson on 12/23/2022. (lcabj2) (Entered: 12/23/2022)

65 Burt Lake Response

66 Interior Response

Prior post here.

Emily Harwell on the Effects of McGirt

January 31, 2023Matthew L.M. Fletcher

Emily N. Harwell has published “Judicial Discretion Across Jurisdictions: McGirt’s Effects on Indian Offenders in Oklahoma” in the Cornell Law Review. PDF.

HIGHLY RECOMMENDED.

Here is the abstract:

Oklahoma’s exercise of criminal jurisdiction over crime committed on tribal reservations remained unchecked until 2020. In McGirt v. Oklahoma, the Supreme Court held that the Muscogee Creek Nation’s reservation had in fact never been disestablished and remains in existence today. In doing so, the Court restored criminal prosecution authority to tribal and federal courts. McGirt received praise throughout the United States from tribal nations and federal Indian Law practitioners for Justice Gorsuch’s strong affirmation of the Muscogee Creek’s sovereignty over its reservation and the honoring of treaties made between the United States and the Muscogee Creek Nation. Similarly situated tribes in Eastern Oklahoma including the Cherokee, Choctaw, and Chickasaw have already joined the Muscogee Creek Nation in asserting the changes that McGirt brings.

In the wake of this change, legal and political discussion has centered around practical matters: Does the Tribe have adequate resources for managing criminal jurisdiction within its reservation? Will the increase in cases overload the federal court system? The question of how the change in prosecutorial authority will affect Native American criminal defendants has yet to be asked, though. This Note assesses the effects of McGirt on the sentencing of Native Americans who commit crimes on a reservation in Oklahoma. Oklahoma state court judges exercise discretion in areas of sentencing different from federal court judges. Existing empirical studies suggest federal sentencing produces harsher, lengthier sentences than state courts. By comparing Oklahoma and federal court sentencing data, this study attempts to answer whether McGirt‘s celebration of tribal sovereignty is simultaneously a devastating blow to Native American criminal defendants committing crimes on tribal reservations in Oklahoma.

Turtle Talk

Author: Matthew L.M. Fletcher