Scholarship

New Empirical Research on the Impacts of McGirt and Castro-Huerta

Matthew L.M. Fletcher

Alexandra Fay, Stephen Galoob, W. Robert (Will) Thomas, and Jeffrey Y. Zhang have posted “Testing McGirt” on SSRN.

Here is the abstract:

McGirt v. Oklahoma (2020) and Oklahoma v. Castro-Huerta (2022) reallocated criminal jurisdiction across federal, state, and tribal governments in eastern Oklahoma on a scale unmatched in modern American history. Three testable predictions framed the debate around these landmark decisions: (1) that the federal courts would be inundated and incapacitated (the Deluge Hypothesis); (2) that concurrent state jurisdiction over General Crimes Act cases under Castro-Huerta would either strengthen or undermine enforcement (the Dual Sovereignty Hypotheses); and (3) that Indian country defendants would face harsher or more lenient sentences in federal court than in state court (the Disparity Hypotheses).  

We test these predictions against a novel dataset of over 140,000 Oklahoma state criminal sentences and nearly 1,500 federal Indian country prosecutions hand-collected from PACER. Four findings emerge. State sentences imposed on American Indian defendants in the McGirt reservation counties fell by roughly 78%, while sentences elsewhere held steady or rose. The federal deluge was real but short-lived, consistent with the Oklahoma Court of Criminal Appeals’ 2021 decision against retroactive application in Matloff v. Wallace. Federal General Crimes Act filings collapsed after Castro-Huerta, supporting the warning that concurrent state jurisdiction would result in federal underenforcement. However, the increase in state prosecutions in the affected counties apparently subsumed the decline in federal prosecutions. And across every offense category we examine, federal sentences are equal to or lighter than their state counterparts.  

These empirical findings should inform the future of federal Indian law and policy. The restoration of reservation status triggers serious consequences for federal, state, and tribal courts, and these consequences can be managed without sacrificing the rule of law. McGirt challenged the federal courts but did not break the system. Courts can wield criminal procedural rules to limit the fallout of major jurisdictional change. Our findings also show that concurrent jurisdiction results in significant effects on criminal practice. For better or for worse, Castro-Huerta produced a substantial return of General Crimes Act cases to the state system. And despite their strained capacity, federal courts tasked with adjudicating Indian country crimes sentenced consistently throughout the surge, at levels at or below those of Oklahoma-one of the most punitive states in the Union.

Highly, highly recommended.

New Student Scholarship on Compensation for Indigenous Language Loss

Matthew L.M. Fletcher

David Yanda has published “Compensation for Indigenous Language Loss” in the Wisconsin International Law Journal.

Here is the abstract:

The destruction of Indigenous languages in both the United States and Canada has largely been the result of state-sanctioned boarding schools built and operated on the premise of destroying Indigenous culture. The United Nations Declaration on the Rights of Indigenous Peoples establishes international standards through which states can reconcile such boarding school histories. While Canada has aligned itself with these international standards to take accountability and provide compensation, the United States has lagged behind. This Note explores the history of Indigenous boarding schools, the legal channels through which compensation for Indigenous language loss has been provided in Canada, and how compensation for Indigenous language loss ought to be provided in the United States.

New Scholarship on the 2016 Choctaw and Chickasaw Water Agreement

Matthew L.M. Fletcher

J. Eric Reed has published “Towards Balance and Equity: An Indigenous Review For Updating the 2016 Water Agreement Between the Choctaw & Chickasaw Nations with Oklahoma & the United States Government for a Sustainable Future of Water Use” in the Vermont Journal of Environmental Law

New Scholarship on State Tax Exemptions for Cultural Property

Matthew L.M. Fletcher

Grant Christensen & Andrew Appleby have published “State Tax Exemptions for Cultural Property” in the Yale Law Review Forum.

Here is the abstract:

In 2026, the California legislature enacted Assembly Bill (AB) 1485, which exempts from real property transfer taxes certain transactions that return tribal land to tribes. This Essay examines AB 1485 as a model for how state tax policy can further tribal sovereignty by facilitating the return of culturally significant land to federally recognized Indian tribes. This Essay argues that state and local taxes imposed on the transfer of land to tribal governments create practical financial barriers to reacquisition, reinforcing the historic erosion of tribal land and limiting tribes’ ability to protect sacred sites and sustain community life. Understanding these tax burdens within the broader legacy of allotment and dispossession, this Essay contends that other states should adopt more durable and inclusive exemptions than AB 1485. By reframing transfer tax exemptions as a state’s recognition of inherent tribal sovereignty, and as a modest response to the colonial foundations of state land ownership, this Essay concludes that state tax reform can serve as a meaningful tool for states to participate in rebuilding reservation communities and in strengthening tribal-state relations.

Teri Greeves, tax-exempt?

Meghan Gupta on History and Tradition in Federal Indian Law

Matthew L.M. Fletcher

Meghanlata Gupta has published “‘In Keeping with the Constitution’s Original Design”: History and Tradition in Federal Indian Law” in the Public Land & Resources Law Review.

HIGHLY RECOMMENDED!

Here is the abstract:

This Article examines the Supreme Court’s use of history and tradition in federal Indian law. In recent years, the Court has increasingly relied on Founding-era practices and historical traditions to determine constitutional meaning in areas such as firearm regulation, substantive due process, and religious liberty. At the same time, while the Founding-era record contains substantial evidence that Native nations were understood and treated as independent, sovereign political communities, this evidence has not yet been fully incorporated into the Supreme Court’s Indian law jurisprudence. Examining decisions from Oliphant to Castro-Huerta, this Article describes the Court’s approaches to historical analysis in Indian law cases and identifies areas where deeper engagement with the historical record could inform the doctrine. By centering Indian law within the broader history-and-tradition framework, this Article argues that more consistent applications of history support the robust conception of tribal sovereignty contemplated at the Founding.
Buffalo Bill and Herman Melville flashing west coast gang signs— Ray Martin Abeyta

Jason Robison on Tripartite Water Sovereignty

Matthew L.M. Fletcher

Jason Robison has published “Tripartite Water Sovereignty” in the Yale Law Journal.

Here is the abstract:

Former U.S. Supreme Court Justice Felix Frankfurter and former Harvard Law School Dean James M. Landis published in 1925 the seminal work on the U.S. Constitution’s Compact Clause. Their article focused on cosovereignty within the United States, but only in a binary sense. While indelibly shaping interstate and federal-state relations, North America’s original sovereigns—Native nations—were not visible within this influential piece. So, too, with the approximately two dozen compacts later formed to apportion water from rivers running across and along state lines, agreements that acknowledged Native nations and their water rights only at the margins, if at all. Revisiting Frankfurter and Landis’s pivotal piece one century later, this Article urges advocates and scholars to look beyond the binary conception of cosovereignty apparent in that piece and entrenched in the suite of compacts created in its wake. Tracking Native nations’ growing calls for inclusion in transboundary water management, the Article contends that these cosovereigns must be respected as what they are—sovereigns—and afforded opportunities for direct representation on compact commissions beside their state and federal counterparts. The Article outlines several ways to achieve this indigenization and, ultimately, move from binary to tripartite water cosovereignty.

Lee Aamodt

Paul Spruhan on the Legal History of Slavery in the Reconstruction Southwest

Matthew L.M. Fletcher

Paul Spruhan has posted “The Unfulfilled Liberation: The Navajo Nation, the Federal Government and the Legal History of Indian Slavery in the Reconstruction Southwest” on SSRN.

Here is the abstract:

The article discusses the legal history of enslavement of American Indians, particularly Navajos, in territorial New Mexico during the Civil War and Reconstruction. It focuses Indian slavery within the relationship between the Navajo Nation and the Federal Government from 1846 to 1877, spanning the federal occupation of New Mexico in the Mexican-American War to the end of Reconstruction. It discusses in detail the role of the Army, the Office of Indian Affairs, and Congress in declaring the legal emancipation of Navajos and other Indian slaves but failing in implementing true liberation. It also discusses the role of the slavery issue in the negotiations and implementation of the Navajo Treaty of 1868, and the failure of General William Tecumseh Sherman and other federal officials to liberate Navajo slaves after the execution of the Treaty and the return of Navajos to their homeland. The article concludes with a discussion of why the Federal government tolerated the continued existence of Navajo slavery despite the end of southern slavery, and its place in the longer arc of federal assimilation policies against Indian people.

Geoffrey Heeren on Tribes, Noncitizens, and the Supremacy Clause

Matthew L.M. Fletcher

Geoffrey Heeren has published “Native Nations, Noncitizens, and the Supremacy Clause” in the Brooklyn Law Review.

Here is the abstract:

Native Nations and noncitizens have often prevailed in the face of adverse state action by asserting treaty rights, arguing that state actions are preempted by federal authority, or relying on federal common law. These claims are largely rooted in the Supremacy Clause of the United States Constitution, rather than Native Nations’ or noncitizens’ rights of their own. At the same time, the Supremacy Clause jurisprudence that developed as Native Nations and noncitizens raised these claims coincided with the growth of federal “plenary power” in both areas, depriving immigrants and Native Nations of strong rights of their own when faced with federal action. The Supreme Court’s approach to the Supremacy Clause in immigration and federal Indian law is inconsistent with the textualist and originalist method preferred by its majority. Existing scholarship has extensively examined the Supremacy Clause through a textualist lens, but has not addressed federal Indian law and immigration law. This is a particularly stark omission since much Supremacy Clause litigation centers on the experience of Native Nations and noncitizens. This article offers a new framework for Supremacy arguments in Immigration and federal Indian law. Under a textualist reading of the Supremacy Clause, the Court should alter its doctrine concerning self-executing treaties, return to an approach grounded in the inherent sovereignty of Native Nations rather than federal common law, and abandon its strongest form of “plenary power preemption.” Finally, the article situates these supremacy claims within the larger landscape of the Court’s retrenchment from anti-subordination principles and growing solicitude toward states’ rights. Moving forward, preemption claims may be less effective for the immigrants or Native Nations that assert those claims against states. Moreover, preemption arguments reify the experiences of noncitizens and Native Nations by translating them into arguments about federal power. In contrast, rights claims—even when they do not prevail—can mobilize and ground a political strategy for subordinated groups. In this shifting doctrinal landscape, treaty rights claims may be the supremacy arguments most likely to support a multifaceted movement to empower some historically disempowered groups.

New Student Scholarship on Land Back, Land Grab Universities, and the Morrill Act

Matthew L.M. Fletcher

Melissa Fergusson has published “#Landback to Indigenous Peoples from “Land-Grab” Universities” in the Cornell Law Review. PDF

Here is the abstract:

The Morrill Land Grant Act of 1862 (Morrill Act) was the first federal legislation to fund public higher education in the United States, funding fifty-two land-grant universities (LGUs) that still exist today. While the purpose of the Act was to “democratiz[e] . . . education” focusing on the study of agriculture and mechanical arts, it created LGUs by taking Indigenous land. In 2020, High Country News issued an investigative report, “Land-Grab Universities,” documenting how LGUs were established both on occupied Indigenous land and through the sale of Indigenous land taken by treaty, land cession, or seizure, which provided seed money for the universities. While some LGUs have increased support for Indigenous students through tuition assistance or increased funding for Indigenous studies, none have implemented land return to Indigenous peoples.

This Note analyzes potential remedies to redress the taking of Indigenous lands by the Morrill Act in the context of the #LandBack movement. Part I discusses the Morrill Act provisions and impact as well as the historical context. Part II discusses the modern-day #LandBack movement and past #LandBack actions at the federal and state levels. Part III provides a survey of current responses from LGUs to their Morrill Act legacy. Part IV explains why #LandBack is needed to make amends to Indigenous peoples for the taking of their lands via the Morrill Act. Part V identifies #LandBack remedies that LGUs can take to recompense Indigenous peoples and provides an implementation framework. It also proposes legislative reform, including creating a cause of action for land claims, to compensate Indigenous peoples for the taking of their lands via the Morrill Act.