Matthew L.M. Fletcher

Christiana Ochoa has posted “Nature’s Rights,” forthcoming in the Michigan Journal of Environmental & Administrative Law, on SSRN.

The abstract:

Do forests and rivers possess standing to sue? Do mountain ranges have substantive rights? A recent issue of The Judges’ Journal, a preeminent publication for American judges, alerts the bench, bar, and policymakers to the rapidly emerging “rights of nature,” predicting that state and federal courts will increasingly see claims asserting such rights. Within the United States, Tribal law has begun to legally recognize the rights of rivers, mountains, and other natural features. Several municipalities across the United States have also acted to recognize the rights of nature. United States courts have not yet addressed the issue, though in 2017, a Colorado District Court dismissed a suit claiming rights for the Colorado River ecosystem. Meanwhile, fourteen foreign countries have extended standing and substantive rights to nature, and that number is growing quickly. This international trend matters because U.S. Supreme Court Justices, including Sonia Sotomayor and Stephen Breyer, have argued that American courts should note and address cutting-edge legal developments in foreign jurisdictions.

This Article provides the key foundational and theoretical basis for recognizing the rights of nature. It explores the intellectual and precedential basis for accepting nature’s rights, surveying developments in the natural sciences, social sciences, and humanities, and providing the only comprehensive survey of all legal systems that currently recognize such rights. It traces the geographic, theoretical, and practical development of the idea of nature’s rights, illustrating that human thought regarding the intrinsic value and rights of nature has evolved significantly since our common law on the issue was established. This Article thus provides the intellectual, moral, and philosophical grounding for students, clerks, judges, and lawmakers facing questions about extending rights to nature.

New Student Scholarship on Right to Counsel in Tribal Justice Systems

March 11, 2021Matthew L.M. Fletcher

Samuel Macomber has published “Disparate Defense in Tribal Courts: The Unequal Rights to Counsel as a Barrier to Expansion of Tribal Court Criminal Jurisdiction” in the Cornell Law Review. Full article PDF here.

An excerpt:

Michael Bryant, Jr. was a defendant in the Northern Cheyenne Tribal Court.¹ He pled guilty to committing domestic abuse in violation of the Northern Cheyenne Tribal Code and was sentenced to a term of imprisonment. Although he was indigent, Bryant was not appointed counsel.² Meanwhile, Frank Jaimez was a defendant in the Pascua Yaqui Tribe of Arizona Tribal Court.³ A jury found Jaimez guilty of committing domestic violence, and he was sentenced to a term of imprisonment. Jaimez was indigent and was represented by a public defender.⁴
Bryant appeared without counsel while Jaimez received a court-appointed attorney. Why? Because Bryant is Indian, and Jaimez is not.⁵ Indians do not have the same right to counsel in tribal court as non-Indians do.⁶ Moreover, Bryant was prosecuted in tribal court because tribes have “inherent power” to “exercise criminal jurisdiction over all Indians.”⁷ But tribal courts do not have general criminal jurisdiction over non-Indians—Jaimez was only prosecuted by the Pascua Yaqui Tribe because U.S. Congress granted tribal courts limited criminal jurisdiction over non-Indians for certain crimes of domestic violence.⁸ Thus, both a tribe’s authority to prosecute and a defendant’s subsequent right to counsel can vary depending on the defendant’s Indian status.
This Note argues that modifying the right to counsel for Indians will help expand tribal court criminal jurisdiction over non-Indians. Fixing the discrepancy in representation between Bryant and Jaimez may increase U.S. Congress’s faith in tribal courts and thus encourage Congress to extend tribal jurisdiction over more non-Indian offenders. This Note arises from a deeply held belief in both the rights of the accused as presumptively innocent and the rights of tribes as sovereign nations.⁹

Interesting New Scholarship on Cultural Linguistics and Treaty Language

March 11, 2021Matthew L.M. Fletcher

Sammy Matsaw, Dylan Nicely-Hedden, and Barbara A. Cosens have posted “Cultural Linguistics and Treaty Language: A Modernized Approach to Interpreting Treaty Language to Capture the Tribe’s Understanding“, forthcoming in Environmental Law, on SSRN.

Here is the abstract:

Language is a reflection of a thought world. A worldview that has been shaped by place to describe one’s identity in space and time does not equate to species relatedness as a default to know one another. In the legal system of the United States, there is acknowledgement of treaties in colonized lands that there are rights granted from the tribes and not to them, and those rights are landbased. Yet, the Indigenous voice is dead before arrival, before it enters the room of science, justice, academe, or otherwise. The exclusion of Indigenous peoples at the table of knowledge and from the power to make decisions within their homelands has proven a detriment to the land, waterways, flora and fauna, and human beings. Nowhere would tribal peoples have agreed to our own destruction, it is and has been a forced hand. This Article explores the changing interpretation of the U.S. Supreme Court canon to construe treaties with Native American tribes as the tribe would have understood them, and why mere translation of Native language to English fails to capture a Native understanding. Through the juxtaposition of western legal analysis and the powerful voice of a Native scientist, this Article illustrates how difficult and yet how necessary it will be to bridge that divide if this powerful western nation is to fulfill its sacred promises to Native people. As a contribution to the Issue on the fiftieth anniversary of United States v. Oregon, this Article looks to the future of federal jurisprudence on the interpretation of treaties with American Indians and envisions one in which reconciliation through an understanding of different worldviews is possible.