Scholarship

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

Matthew 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

Matthew 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

Matthew 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.

Tana Fitzpatrick on the History of Tribal Access to Legal Representation

Matthew L.M. Fletcher

Tana Fitpatrick published “Federal Gatekeeping and Hollow Sovereignty: A Historical
Statutory Analysis of Tribal Access to Legal Representation” in the Sovereignty Symposium XXXVII (2025). It seems like a really good paper. Wish I knew about it earlier.

FedGatekeeping_TribalSovDownload

2026 MLaw Indian Law Workshop Series: Aaron Mills and Neoshia Roemer

Matthew L.M. Fletcher

Stephanie Safdi on Tribal Water Governance Beyond Indian Country

Matthew L.M. Fletcher

Stephanie Safdi has posted “Indigenous Water Governance and the Clean Water Act” on SSRN. Here is the abstract:

Cultural lifeways for many Indigenous communities in the United States are intimately tied to water. Nationally, the Clean Water Act of 1972 is the principal framework for regulation of water quality. The core purpose of the Act is to ensure water quality—and, by extension, water quantity—sufficient to protect designated uses, including but extending beyond familiar fishable, swimmable, and drinkable uses. Though uses protected under the Act can be seen as expressions of social and ecological values, the cultural dimensions of these water uses have generally been underappreciated.

This paper excavates requirements and possibilities for Indigenous water governance under the Clean Water Act, centering on the work of the Act’s water quality standards provisions. Previous scholarship in this area has focused on Indigenous water governance within Tribal territorial jurisdiction—particularly through Tribal promulgation of on-reservation water quality standards under Treatment-as-a-State authority or federal gap-filling standards for Indian country. This paper extends this scholarship by looking to Indigenous water governance beyond Indian country. Doing so is imperative, as Tribal cultural, ceremonial, and subsistence practices involving water remain rooted in ancestral territories over which Tribes often do not exercise formal regulatory governance and which are increasingly imperiled by conflicts over water allocation under conditions of mounting scarcity. The failure to formally recognize Tribal cultural uses of ancestral waterways, both practically and in the law, continues to marginalize Tribes and Tribal water uses in decision-making over the nation’s waterways.

In this paper, I posit that the Clean Water Act contains important mechanisms to advance the exercise of Indigenous cultural sovereignty over ancestral waterways beyond the jurisdictional bounds of Indian country. These mechanisms include calibration of water quality standards to protect Tribes’ off-reservation reserved rights to aquatic resources and designation of Tribal cultural uses as uses to be protected through state and federal water quality standards for Tribes’ ancestral waterways, including through instream flow standards and other functional flow controls. Though these mechanisms are underappreciated aspects of Clean Water Act administration, there are strong arguments that protecting Tribal reserved rights and cultural uses is legally required in water quality standard-setting, as well as ethically and ecologically imperative. These also function as much-needed pathways toward meaningful co-governance of water resources and exercise of Traditional Ecological Knowledge in regulation of ancestral waterways in furtherance of cultural and ecological continuity.

New Student Scholarship on Tribal Courts’ Role in the Federalist Judicial System

Matthew L.M. Fletcher

Sharon Nunn has published “Correcting Nevada v. Hicks: Recognizing Tribal Courts as Courts of General Subject-Matter Jurisdiction” in the Yale Law Journal.

Here is the abstract:

This Note challenges the Supreme Court’s conclusion in Nevada v. Hicks that tribal courts are not courts of general subject-matter jurisdiction. Tribal courts satisfy the definition of general subject-matter jurisdiction courts: they are primary courts created by nonfederal sovereigns to hear a broad range of cases under their laws. Unlike previous scholarship, this analysis does not premise jurisdiction on near-perfect parity between tribal and state sovereignty, but focuses instead on tribal courts’ function in our federalist system. Recognizing tribal courts as general-jurisdiction courts would affirm tribal sovereignty and enable tribes to hear federal claims critical to self-governance.

Suzan Shown Harjo, Vine Deloria, Sam Deloria, Oren Lyons, Joe de la Cruz

Tribal Law Journal Call for Papers

Matthew L.M. Fletcher

TLJ is inviting scholarly, practitioner, and student submissions addressing legal issues affecting tribal nations and their internal justice systems. Contributions may include tribal court case comments, reflections on tribal systems, the development of tribal law, the value of tribal law, interviews, and teachings. Submissions are due by August 31, 2026, and chosen work will be published by Spring 2027

New Student Scholarship on Rule 19, Tribal Immunity, and Indian Gaming Cases

Matthew L.M. Fletcher

Marissa Uri has published “Rule 19 and Tribal Representation in Indian Gaming Litigation” in the Stanford Law Review.

Here is the abstract:

Since 1988, when Congress passed the Indian Gaming Regulatory Act (IGRA) into law, many Indian tribes have established gaming as a vital source of economic and political sovereignty. The process envisioned by IGRA, however, has allowed private actors to challenge tribal gaming operations by suing state and federal entities that negotiate the gaming operations with the tribes, rather than the tribes themselves. These third parties have succeeded in legal challenges enjoining tribal gaming without ever making the operating tribe a party to the suit.

Tribes, protected by the well-established doctrine of tribal sovereign immunity, frequently intervene in these suits under Rule 19, arguing that their inability to be joined necessitates dismissal of the case. An emerging disagreement among federal circuit courts underscores the procedural and practical difficulties that courts face in weighing these interests, particularly in assessing whether existing federal or state defendants can adequately represent absent tribal interests such that the case can proceed “in equity and good conscience.” This Note argues that consistent with the deference under Rule 19 case law accorded to other sovereigns, there should be a presumption of dismissal when tribes cannot be joined in discrete gaming challenges due to tribal sovereign immunity. In doing so, this Note examines Indian gaming challenges as a unique form of Administrative Procedure Act litigation and catalogs where federal, state, and tribal gaming interests diverge, underscoring why this divergence poses significant legal and practical threats to tribal sovereignty in a budding area of contemporary Indian law.

New Student Scholarship on Tribal Health Compacts and Medicaid

Matthew L.M. Fletcher

Trudel Pare has published “Ensuring Sovereignty in Healthcare: A Comparison of Tribal Healthcare Compacts and Medicaid” in the Yale Law Journal.

Here is the abstract:

This Note examines federal-state and federal-tribe relationships through a comparison of Medicaid and the Indian Health Service (IHS). Analysis of tribal contracting and compacting documents and Medicaid state plans reflects the history of each program: Medicaid is a product of trusting federal-state collaboration, while the IHS reflects a history of distrust between tribes and executive-branch agencies in particular. This finding suggests that IHS compacting and contracting practices have significant lessons for Medicaid as the latter program negotiates with a hostile federal government.