Scholarship

Dylan Hedden-Nicely and Stacy Leeds on McGirt and the Future of Federal Indian Law

Matthew L.M. Fletcher

Dylan Hedden-Nicely and Stacy Leeds have posted “A Familiar Crossroads: McGirt v. Oklahoma and the Future of the Federal Indian Law Canon” on SSRN. The paper is forthcoming in the New Mexico Law Review.

The abstract:

Federal Indian law forms part of the bedrock of American jurisprudence. Indeed, critical parts of the pre-civil war constitutional canon were defined in federal Indian law cases that simultaneously provided legal justification for American westward expansion onto unceded Indian lands. As a result, federal Indian law makes up an inextricable part of American rule of law. Despite its importance, federal Indian law follows a long and circuitous road that requires “wander[ing] the maze of Indian statutes and case law tracing back [over] 100 years.” That road has long oscillated between two poles, with the Supreme Court sometimes applying foundational principles that view tribes as sovereigns “retaining all their original natural rights,” and at other times treating tribes as mere “wards subject to a [self-imposed] guardian.”

Supreme Court respect for tribal sovereignty and self-determination reached its zenith in the so-called “modern era” of federal Indian law, spanning from 1959 through the late 1970s. During this era, the Court tended to adhere to federal Indian jurisprudence and solidified a relatively coherent doctrine based upon the foundational principles developed in the 1830s. The late Dean David Getches described the modern era as a time that “encouraged a reinvigoration of tribal governments throughout the country. During this period, tribes gained political influence and economic security as [the federal government] generally promoted a policy of tribal self-determination.”

The Court turned away from its foundational Indian law principles with the onset of the 1980s and the departure intensified as Chief Justice William Rehnquist was appointed chief justice in 1986. Since then, the touchstone of the Supreme Court’s federal Indian jurisprudence has been to employ a “subjectivist” approach whereby it “gauges tribal sovereignty as a function of changing conditions”—demographic, social, political, and economic—and the expectations of non-Indians that may be potentially by the exercise of tribal power. As a result, the Supreme Court became a strikingly hostile place for American Indian tribes as the Court became increasingly willing to divest tribes of governmental powers, not by upholding the enactments of Congress, but through its own interpretation of what tribal inherent governmental rights ought to be.

The appointment of Justice Sonia Sotomayor and, more recently, Justice Neil Gorsuch seems to have brought change to the Court’s direction in Indian law cases. Since then, cases have been consistently decided in favor of tribal litigants by reaffirming treaty rights through the application of foundational principles that focus on the plain language of treaties and the application of the Indian canons of construction. However, to be sure, even the Rehnquist Court did “recite[] and sometimes act[] upon foundation principles,” but those cases were limited to situations where “non-Indian interests [were] not seriously threatened.” All of Indian Country waited for, or perhaps dreaded, a true litmus test.

That test came to the Supreme Court in the form of two Indian law cases—Sharp v. Murphy and McGirt v. Oklahoma—both of which were framed by non-Indian parties to affect the interests of an estimated 1.8 million people in eastern half Oklahoma. Ready or not, Indian Country found its test case, which squarely placed the Court’s competing jurisprudential philosophies— its foundation principles versus its “subjectivist” approach—on a collision course.

In a powerful and uncharacteristically passionate decision, Justice Gorsuch wrote for a 5-4 majority, upholding treaty-based rights to re-recognize the historic reservation boundaries of the Muscogee (Creek) Nation, the fourth largest Indigenous nation in the United States. The decision was the fourth consecutive treaty-rights victory and seemed to solidify a shift toward a consistent approach rooted in foundational principles.

The victory was short-lived. Just weeks after the Court’s decision in McGirt, Justice Ruth Bader Ginsburg passed away, once again shifting the make-up of the United States Supreme Court. As a result, Federal Indian law once again finds itself at a crossroads. The Murphy and McGirt decisions are landmark decisions that bring change to the legal landscape of much of Oklahoma. It remains to be seen whether the perceived new Supreme Court era in Indian law is here to stay.

Highly recommended!!!

Trevor Reed on Indigenous Dignity and the Right to be Forgotten

Matthew L.M. Fletcher

Trevor Reed has posted “Indigenous Dignity and the Right to be Forgotten,” forthcoming in the BYU Law Review, on SSRN.

Here is the abstract:

Indigenous cultural documentation amassed over more than two centuries currently occupies the shelves and databases of American museums, universities, archives and other institutions. Field notes, photographs, sound recordings, maps, kinship charts, and all manner of other cultural materials collected from Tribal members constitutes what is perhaps America’s first instance of “big data.” While often touted by collectors and institutions as rich historical and cultural resources, I argue that some of these collections have become toxic in their preserved forms, separated from their communities’ modes of care. These materials are among those that Indigenous groups should have the right to remove from settler archives, museums, digital repositories, and other institutions and if necessary, erase, delete, or destroy. The kind of Indigenous right to erase sensitive cultural material held by settler institutions, the contours of which I begin to etch out in this symposium essay, is not unlike the right to be forgotten and other data privacy rights already adopted by the European Union, and to some extent, the State of California. While much of the debate surrounding the right to be forgotten in the United States has focused on tensions between personal autonomy and the right of the public to be informed, the collective rights of Indigenous peoples to maintain cultural dignity and sovereignty in the wake of colonization, I argue, provides a compelling case for recognizing an Indigenous right to be forgotten.

Tribal Law Journal Volume 20

Matthew L.M. Fletcher

Here:

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Santa Clara Pueblo v. Martinez in the Evolution of Federal Law
Richard B. Collins

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Tribal Justice: Honoring Indigenous Dispute Resolution (Symposium Keynote Address)
Deb Haaland

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Native American Oral Evidence: Finding a New Hearsay Exception
Max Virupaksha Katner

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Tribal Opposition to Enbridge Line 5: Rights and Interests
John Minode’e Petoskey

Stephanie Hall Barclay & Michalyn Steele on Protections for Indigenous Sacred Sites

Matthew L.M. Fletcher

Stephanie Hall Barclay & Michalyn Steele have published “Rethinking Protections for Indigenous Sacred Sites” in the Harvard Law Review. Here is the abstract:

Meaningful access to sacred sites is among the most important principles to the religious exercise of Indigenous peoples, yet tribes have been repeatedly thwarted by the federal government in their efforts to vindicate this practice of their religion. The colonial, state, and federal governments of this Nation have been desecrating and destroying Native American sacred sites since before the Republic was formed. Unfortunately, the callous destruction of Indigenous sacred sites is not just a troubling relic of the past. Rather, the threat to sacred sites and cultural resources continues today in the form of spoliation from development, as well as in the significant barriers to meaningful access Indigenous peoples face.

Scholars concerned about government failure to protect Indigenous sacred sites on government property have generally agreed that the problem stems from the unique nature of Indigenous spiritual traditions as being too distinct from non-Indigenous religious traditions familiar to courts and legislators, and therefore eluding protection afforded to other traditions. By contrast, this Article approaches the problem from an entirely different angle: we focus instead on the similarities between government coercion with respect to Indigenous religious exercise and other non-Indigenous religious practices. We illustrate how the debate about sacred sites unwittingly partakes in longstanding philosophical debates about the nature of coercion itself — a phenomenon that has previously gone unnoticed by scholars. This Article argues that whether or not one formally labels the government’s actions as “coercive,” the important question is whether the government is bringing to bear its sovereign power in a way that inhibits the important ideal of religious voluntarism — the ability of individuals to voluntarily practice their religious exercise consistent with their own free self-development. Indeed, this is precisely the sort of question courts ask when evaluating government burdens on non-Indigenous religious exercise. The failure to ask this same question about voluntarism for Indigenous religious practices has created a double standard, wherein the law recognizes a much more expansive notion of coercion for contexts impacting non-Indigenous religious practices, and a much narrower conception of coercion when it comes to Indigenous sacred sites.

This egregious double standard in the law ought to be revisited. Doing so would have two important implications. First, when government interference with religious voluntarism is viewed clearly, tribal members and Indigenous practitioners should be able to prove a prima facie case under statutes like the Religious Freedom Restoration Act much more easily. Second, this Article makes the novel claim that clearer understanding of the coercive control government exercises over sacred sites should animate a strong obligation under the government’s trust responsibility and plenary power doctrine to provide more — rather than less — robust protection of Indigenous sacred sites.

Govind Persad on Allocating Medicine Fairly in an Unfair Pandemic

Matthew L.M. Fletcher

Govind Persad has posted “Allocating Medicine Fairly in an Unfair Pandemic,” forthcoming in the University of Illinois Law Review, on SSRN. Here is the abstract:

America’s COVID-19 pandemic has both devastated and disparately harmed minority communities. In this Article, I focus on the pressing question of how the allocation of scarce treatments for COVID-19 and similar public health threats should respond to these racial disparities. Many policymakers and popular commentators have recognized that the inevitable initial scarcity of vaccines presents questions about racial disparity. Therapeutics like monoclonal antibodies raise similar questions, as do emergency interventions such as ventilators and ICU beds. Some have proposed that members of racial groups who have been especially hard-hit by the pandemic should receive priority for scarce treatments. Others have worried that this prioritization misidentifies racial disparities as reflecting biological differences rather than structural racism, or that it will generate mistrust among groups who have previously been harmed by medical research. Still others complain that such prioritization would be fundamentally unjust.

In Part II, I provide a brief overview of current and proposed COVID-19 treatments and identify documented or likely scarcities and disparities in access. In Part III, I argue that randomly allocating scarce medical interventions, as some propose, will not effectively address disparities: it both permits unnecessary deaths and concentrates those deaths among people who are more exposed to infection. In Part IV, I explain why using individual-level racial classifications in allocation is precluded by current Supreme Court precedent. Addressing disparities will require focusing on factors other than race, or potentially considering race at an aggregate rather than individual level. I also argue that policies prioritizing members of Native American tribes can succeed legally even where policies based on race would not. In Part V, I examine two complementary strategies to narrow racial disparities. One would prioritize individuals who live in disadvantaged geographic areas or work in hard-hit occupations, potentially alongside race-sensitive aggregate metrics like neighborhood segregation. These approaches, like the policies school districts adopted after the Supreme Court rejected individualized racial classifications in education, would narrow disparities without classifying individuals by race. The other strategy would address the starkly disparate racial impact of deaths early in life by limiting the use of policies that explicitly deprioritize the prevention of early deaths, and by considering policies that prioritize their prevention.

Fletcher and Fort’s Rewritten Opinion in Adoptive Couple v. Baby Girl

Matthew L.M. Fletcher

Fletcher and Fort posted “Intimate Choice and Autonomy: Adoptive Couple v. Baby Girl,” forthcoming in CRITICAL RACE JUDGMENTS (Cambridge Univ. Press, eds. Bennett Capers, Devon Carbado, Robin A. Lenhart, and Angela Onwuachi-Willig) (forthcoming 2021).

As if there was any doubt, we have reached the opposite outcome as the Supreme Court did back in 2013. A few excerpts:

This case is about a little girl (Baby Girl) who is a citizen of the Cherokee Nation, like her father, grandparents, and a multitude of generations before her. American Indian tribal citizenship with a federally recognized tribe is a unique concept in American law. E.g., Santa Clara Pueblo v. Martinez, 436 U.S. 49, 55 (1978) (“[Indian tribes] have power to make their own substantive law in internal matters. . . .”). Tribal citizens are beneficiaries of the federal government’s trust relationship with Indian tribes, and the federal government has promised to tribal citizens for centuries to assist in the maintenance of tribal governments, cultures, and sovereignty. Worcester v. Georgia, 31 U.S. 515, 556 (1831) (“[The Cherokee treaty], thus explicitly recognizing the national character of the Cherokees, and their right of self government; thus guarantying their lands; assuming the duty of protection, and of course pledging the faith of the United States for that protection; has been frequently renewed, and is now in full force.”).

And:

The ethically dubious acts of the Petitioners in this case extends to this Court’s amici. Several amici invoked the racist dog whistle of referring to the Petitioners as the “only family” Baby Girl has ever known. E.g., Brief for Guardian Ad Litem, as Representative of Respondent Baby Girl, Supporting Reversal at 56 (“Indeed, it is hard to imagine what liberty interest is more important to a 27-month old child than maintaining the only family bonds she has ever known, absent a strong showing of necessity.”) (emphasis added); Brief of Amica Curiae Birth Mother in Support of Petitioners at 3 (“The decision below effectively negated Birth Mother’s decision to place Baby Girl with Adoptive Couple, and ripped Baby Girl from the only family she has ever known, in derogation of both Birth Mother’s and Baby Girl’s rights and expectations under state law.”) (emphasis added); Brief of Amici Curiae Bonnie and Shannon Hofer; Roger, Loreal, and Sierra Lauderbaugh; and Craig and Esther Adams in Support of Petitioners at 38 (“[T]he lower court took non-Indian Petitioners’ adopted Indian daughter from them – destroying the only family she has ever known.”) (emphasis added); Brief of Amici Curiae National Council for Adoption in Support of Petitioners at 13-14 (“ICWA is implemented in some cases to traumatize children by forcing them into completely unknown environments, traumatizing them by removal from the only family they’d ever felt a connection with and imposing the developmental delays that come with the traumatic removal from a secure attachment.”) (emphasis added).[1] It appears that for some of our amici, the “only family” that matters is the non-Indian Petitioners’ family. For these amici, the Indian family and other biological relatives are strangers and foreigners. The only pain and shame of removal and separation that matters is that of the non-Indian family. It is apparent the “only family” dog whistle is designed to distract our attention from the ever-present bias against Indian parents and relatives in the child welfare and adoption system. This we will not accept. As noted above, this Court long has been complicit in dehumanizing Indian people. In Professor Harris’ words, “[C]ourts established whiteness as a prerequisite to the exercise of enforceable property rights.” Harris, supra, at 1724. No longer. We additionally suspect that this form of advocacy implicates American Bar Association Rules of Professional Conduct 3.4 (Fairness to Opposing Party and Counsel), 3.5 (Impartiality & Decorum of the Tribunal), 4.4 (Respect for Rights of Third Persons), and 8.4 (Misconduct).

[1] One commentator even referred to the Cherokee family here, who descend from an Indigenous nation that has been present in this hemisphere since time immemorial, as “foreign.” Thomas Sowell, Indian Child Welfare Act does not protect kids, Denton Record-Chronicle, Feb. 1, 2018, at 6A (“This little girl is just the latest in a long line of Indian children who have been ripped out of the only family they have ever known and given to someone who is a stranger to them, often living on an Indian reservation that is foreign to them.”) (emphasis added).

Seth Davis on Tribalism and Democracy

Matthew L.M. Fletcher

Seth Davis has published “Tribalism and Democracy” in the William & Mary Law Review. Here is the abstract:

Americans have long talked about “tribalism” as a way of talking about their democracy. In recent years, for example, commentators have pointed to “political tribalism” as what ails American democracy. According to this commentary, tribalism is incompatible with democracy. Some commentators have cited Indian Tribes as evidence to support this incompatibility thesis, and the thesis has surfaced within federal Indian law and policy in various guises up to the present day with disastrous consequences for Indian Tribes. Yet much of the talk about tribalism and democracy—within federal Indian law, and also without it—has had little to do with actual tribes. Looking at the histories and practices of Indian Tribes calls the premises of the incompatibility thesis into question. Indeed, many examples of Indian Tribalism reflect the democratic practices that critics of “political tribalism” praise. First, Indian Tribal self government safeguards democracy by ensuring that Indians not only are governed (by the federal and state governments), but also have the opportunity to govern. Second, Indian Tribal governance is compatible with democracy because it depends in no small measure upon discourse and negotiation, not upon coercion and zero-sum gaming. And third, the persistence of Indian Tribes in the face of the coercion and violence of colonialism challenges Americans to honor the democratic ideal of consent of the governed. In all three ways, Indian Tribalism and American democracy are compatible.