Scholarship – Turtle Talk

New Scholarship on Electrifying the Navajo Nation

April 6, 2026Matthew L.M. Fletcher

Carington Lowe & Michael Hamersky have published “The Tribal Energy Act: A Necessary Step Toward the Electrification of the Navajo Nation” in the Pepperdine Law Review.

Here is the abstract:

The Navajo Nation stands as a sovereign nation, yet many families still lack access to electricity because of enduring historical, structural, and regulatory barriers. This Article identifies the legal and technical barriers that have hindered meaningful progress and argues that supplementing the utility grid with distributed energy resources, such as biodigesters, offers a viable path toward electrification, particularly for remote and rural communities within the Navajo Nation. Biodigesters convert organic waste generated through community practices, such as sheep raising, into biogas through an anaerobic process. This form of energy reflects circular economy principles while also aligning with Diné cultural practices of environmental harmony and stewardship. As a flexible and scalable energy source, biodigesters can be adapted to meet the diverse needs of these communities.

With these barriers in mind, this Article examines the Tribal Energy Act and the authority it grants the Navajo Nation to implement new regulations to encourage clean electrification. It further proposes targeted revisions to existing regulatory frameworks to facilitate the wider adoption of distributed energy resources and promote greater energy access across the reservation.

Jordan Gross on White Collar Crime in Indian Country

April 6, 2026Matthew L.M. Fletcher

Jordan Gross has published “White-Collar Crime in Indian Country: Teaching and Researching Familiar Issues in a Unique Context” in the Stetson Law Review.

Here is the abstract:

Some locations within Indian Country make up the most dangerous places in the United States. Remoteness, extreme poverty, and complex federal jurisdictional rules, combined with a paucity of law enforcement resources, have given some Indian reservations reputations as safe havens for lawlessness and organized crime. Crime in Indian Country is often associated with violent offenses, drug running, and human trafficking. Indian Country faces a less well known, but equally pernicious threat from white-collar crime. The federal government directs billions of dollars to Indian Country every year to fund Tribal projects, grants, and contracts. Indian Tribes operate and have interests in many highly profitable gaming operations and resource extraction industries. The vast sums of money flowing through these businesses are an attractive target for fraudsters and opportunists. And the same circumstances that contribute to high rates of violent crime in some parts of Indian Country create fertile conditions for white-collar crime, particularly federal program fraud, embezzlement, public corruption, money laundering, and tax evasion. These crimes cause more than pecuniary losses in Indian Country: monies lost to fraud and corruption in this context are often earmarked for public services and desperately needed infrastructure for residents of Indian Country, thus undermining the ability of Tribal governments to address acute needs in some of the most underserved and poverty-stricken communities in the United States. The jurisdictional and legal contexts in which crime in Indian Country is investigated and prosecuted in the United States are sui generis and unstable. Yet criminal justice issues as they impact residents of Indian Country as well as the self-determination and sovereignty interests of Tribes are overlooked and underexamined in legal education and discourse. This is especially true of white-collar crime in Indian Country, a topic that receives virtually no attention in legal scholarly publications and textbooks. This Article is directed at this void in the academic and pedagogical literature. Its goal is to provide white-collar crime teachers and researchers with background, resources, and encouragement to add Indian Country issues and topics to their repertoire.

Marcia Zug on Custom

March 26, 2026Matthew L.M. Fletcher

Marcia Ann Zug has posted “‘In My Defense, I Have None:’ Taylor Swift, Indian Law, And A Re-Examination Of Custom’s Inapplicability In The United States,” forthcoming in the Harvard Journal of Environmental Law, on SSRN. Here is the abstract:

Traditions matter. They connect people with their past and provide a sense of identity and community in the present. When they disappear, the opposite occurs; individuals are left isolated and detached. The common law doctrine of custom was crafted to protect community customs and traditions, yet for centuries, American courts have repeatedly declared this doctrine inapplicable and irrelevant. This Article demonstrates that the inapplicability of customary law in the United States has been greatly exaggerated. More specifically, this Article shows it was a deliberate fabrication created to justify both the seizure of native lands and the commencement of the American Revolution. Acknowledging this shameful history, which includes the centuries-long erasure of native nations and the modern-day denial of tribal rights, demands the reexamination of the doctrine of custom, and its alleged inapplicability. This Article explores how and why custom was declared dead in America while also advocating for its revival. Custom defines who we are, and the doctrine of custom provides an essential framework for protecting the cultural practices that shape our collective identity. Safeguarding our customs-from what we eat, to where we play-is vitally important. Unfortunately, current methods of protection are limited and largely ineffective. Reviving customary law offers a potential solution that will benefit all Americans while also addressing the particular injustice of declaring native customs, and by extension, native people, irrelevant.

Grant Christensen on Indian Affairs Agency Deference Post-Chevron

March 26, 2026Matthew L.M. Fletcher

Grand Christensen has posted “Indian Deference” forthcoming in the University of Chicago Law Review, on SSRN. Here is the abstract:

The Supreme Court’s decision in Loper-Bright Enterprises v. Raimondo, 144 S. Ct. 2244 (2024), formally retired Chevron deference. By rejecting the long-standing presumption that courts should defer to an agency’s reasonable interpretation of ambiguous statutes, Loper-Bright reshapes the relationship between the judiciary and the executive branch. Yet this shift poses unique challenges in the field of federal Indian law, where agency decisions have long been essential to the implementation of the federal government’s trust responsibility to Indian tribes. This Article argues that despite Loper-Bright’s general rejection of Chevron, federal courts are obligated to defer to federal agency decisions involving Indian tribes. This deference is a distinct, sui generis doctrine grounded in constitutional structure, history, and the unique status of tribal nations.

Federal Indian law has always occupied a special place in the constitutional order, one shaped by the trust relationship between the United States and tribal nations. When federal agencies act pursuant to statutes and treaties embodying that trust, their decisions do not merely interpret general administrative policy, they execute sovereign obligations owed to another Nation. Judicial deference in this context therefore protects not just agency expertise but also the political accountability of the elected branches, which are constitutionally charged with managing relations between the United States and tribes. The elimination of Chevron’s framework should not be read to eliminate this constitutionally anchored respect for the federal government’s political and moral commitments to tribal self-determination.

The implications are profound for federalism and for Indian law. Judicial deference to agency decisions in Indian affairs aligns with both Article III’s limits on judicial power and the federal government’s trust obligations. Judicial modesty in this arena reinforces the proper constitutional balance among the branches, ensuring that the courts do not displace the executive’s policy judgments or the legislature’s political commitments toward tribal nations. Recognizing the Indian deference doctrine honors the jurisprudential history of tribal-federal relations, safeguards tribal sovereignty, and preserves the integrity of federal Indian law.

2026 MLaw Indian Law Workshop: Monte Mills and Bill Wood

March 23, 2026Matthew L.M. Fletcher

New Student Scholarship on EPA Water Quality Standards and Tribal Reserved Water Rights

March 16, 2026Matthew L.M. Fletcher

Mostyn Josty has published “Rivers of Sovereignty: The EPA’s New Water Quality Standards Rule as a Potential Channel for Revitalizing Tribal Reserved Water Rights” in the Cardozo Law Review.

Here is the abstract:

This Note explores the federal government’s evolving approach to its obligation to protect tribal reserved water rights through a case study of the Environmental Protection Agency’s (EPA) 2024 Water Quality Standards Regulatory Revisions to Protect Tribal Reserved Rights rule (the “WQS Rule”). It argues that while the WQS Rule represents a step forward in safeguarding tribal water rights, the legal challenge it faces underscores broader issues of federalism, administrative authority, and the country’s fluctuating commitment to tribal sovereignty. The Note examines the WQS Rule’s legal foundation, its potential challenges, and the implications for tribal self-determination, emphasizing the need for a more accountable and enforceable framework for tribal water protections.Additionally, this Note situates these legal developments within international human rights frameworks, suggesting that evolving global standards on Indigenous rights and water access could offer a more stable foundation for securing equitable water for reservations. Ultimately, this Note argues that regardless of the WQS Rule’s future, it is the underlying principle of the federal trust obligation and the need for lasting protections that must guide efforts to ensure Native Nations’ access to water.

New Student Scholarship on the Federal Indian Boarding School Initiative

March 16, 2026Matthew L.M. Fletcher

Jilly Horowitz has published “Pursuing Restorative Justice for the Legacy of Federal Indian Boarding Schools” in the Cardozo Journal of Dispute Resolution.

An excerpt:

The federal government started to acknowledge its role in causing devastating damage throughout Native communities, but acknowledgement is just the beginning of restorative justice. Because the federal government has not communicated any plans for ongoing restorative and reparative work, this Note will analyze the federal government’s efforts to date. Finally, the Note will conclude with a discussion of what an ongoing restorative justice practice might look like and how this work would help to restore Native sovereignty.

New Student Scholarship on the Need for Tribal Criminal Jurisdiction over Non-Indian Drug Offenses

March 16, 2026Matthew L.M. Fletcher

Shivani Singh has published “The Need for Special Tribal Criminal Jurisdiction Over Drug Crimes” in the Cornell Journal of Law and Public Policy.

An excerpt:

Limitations to Tribal criminal jurisdiction, especially over drug crimes, have ultimately contributed to “limited law enforcement; delayed prosecutions; too few prosecutions, and other prosecution inefficiencies” that have allowed non-Indian perpetrators to exploit a failing system and endanger vulnerable Tribal communities.