Scholarship

Torey Dolan on the Indian Law Aunties

Matthew L.M. Fletcher

Torey Dolan has published “The Indian Law Aunties” in the UMKC Law Review.

An excerpt:

American Indian women in the legal academy have stepped in to fight this persistent othering and invisibility in the law: through service, scholarship, and tenacious advocacy. In doing so, they have created Indigenous feminist spaces
whereby Native people can resist intellectual and social assimilation to varying degrees. Sarah Deer (Muscogee Nation) argued prophetically in 2019, “to cultivate future feminist interventions in Indian law, I contend we must do more to recruit and support Native women law students, and, ultimately, more Native women law professors.” In Native communities, “auntie” is a term of endearment for Indigenous women, often women who take positions of leadership: cultural, social, professional, or otherwise. The term encompasses blood relatives but also extends beyond them to accommodate expansive Indigenous philosophies of kinship and community care. As Laurel Goodluck (Tsimshian Tribe) describes her children’s book “Fierce Aunties,” aunties come in a variety of shapes, sizes, experiences, and backgrounds, but what these fierce aunties share is “[they] see you, they know you, and they love all of you, always.” Aunties are who you go to for guidance, advice, support, and courage. Native women entering the legal academy today are heirs to a generation of Native aunties who have toiled to build communities and infrastructures to support Native students and Indian law education. I call them the “Indian law aunties.” Native women in the legal academy (the “Indian law aunties”) resist invisibility through labor, advocacy, and institution-building for the Native women coming into law behind them. They have paved the way for future generations of Native women scholars through their unapologetically indigenous feminist interventions. This Essay seeks to name the othering and disappearing of Native women within U.S. settler colonialism, contextualize the invisibility of Native women in the academy, honor the interventions of the Indian law aunties, and advocate for a more equitable future where the labor is not theirs alone.

Some NDN law aunties.

This article comes from a symposium on women in legal education.

New Scholarship on Bordertowns and the Bad Men Clauses

Matthew L.M. Fletcher

Taylor Graham has published “Bad Men in the Bordertown” in the New Mexico Law Review.

Here is the abstract:

In nine treaties signed by Tribal Nations and the United States between 1867 and 1868, the United States promised redress to Native Americans for wrongs committed against them by “bad men among the whites.” Today, Native Americans are more likely to be killed by police than any other group, with much of this violence concentrated near the borders of Tribal Nations. Although claims brought under the “bad men” treaty clauses offer an avenue for combatting this epidemic of violence, courts have begun interpreting the clauses to apply only when “wrongs” occur within Tribal boundaries. This article argues that the territoriality of the bad men clauses should be read broadly to encompass violence committed outside of Tribal boundaries to address the disproportionate police violence against Native Americans that occurs there.

New Scholarship on Implicit Divestiture

Matthew L.M. Fletcher

Issac Santos and Elizabeth Ann Kronk Warner have posted “Turning Sugar to Alcohol:  An Originalist Critique of Implicit Divestiture” on SSRN.

Here is the abstract:

This Article challenges one of federal Indian law’s most consequential doctrines through the lens of originalism, the constitutional methodology now dominant on the U.S. Supreme Court. The doctrine of “implicit divestiture,” first articulated in Oliphant v. Suquamish Indian Tribe (1978), holds that tribal governments have been divested of certain sovereign powers deemed “inconsistent with their status” as domestic dependent nations-even absent any congressional statute or treaty provision explicitly abrogating such authority. Through comprehensive examination of the doctrine’s development from Oliphant through United States v. Cooley (2021), this Article demonstrates that implicit divestiture represents precisely what originalism rejects: judge-made policy disguised as law, where contemporary judicial preferences about fairness have supplanted interpretation of fixed legal sources understood by the founding generation. Tribal sovereignty existed at the Constitution’s enactment, making this area uniquely suited to originalist analysis. Yet no constitutional provision, founding-era treaty, or principle of eighteenth-century international law authorized courts to unilaterally diminish tribal sovereignty without congressional action. Even the Marshall Trilogy-decided within decades of the founding-identified only two limited exceptions to retained tribal sovereignty, both grounded in the doctrine of discovery and European law of nations as contemporaneously understood. Following the analytical path marked by Justices Gorsuch and Thomas’s recent dissent questioning the plenary power doctrine’s constitutional foundations, this Article argues that implicit divestiture similarly lacks any basis in the Constitution’s original meaning and should be abandoned in favor of originalist principles that preserve tribal sovereignty except where explicitly abrogated by Congress or limited by founding-era legal sources. This intervention arrives at a crucial moment when the Court’s originalist majority is actively reconsidering longstanding judge-made doctrines across constitutional law, making reconsideration of implicit divestiture both timely and methodologically imperative for a Court committed to fidelity to the Constitution’s original public meaning.

Kyle Whyte on Nonanthropocentric Environmental Ethics

Matthew L.M. Fletcher

Kyle Whyte has posted “Recovering Scale for Climate Action: Indigenous Peoples, Nonanthropocentric Ethics, and Caretaking Institutions” on SSRN.

Here is the abstract:

Philosophers have widely debated and defended nonanthropocentric environmental ethics. However, nonanthropocentrism rarely features in philosophical climate ethics, which has been largely anthropocentric in focus. In contrast, Indigenous peoples throughout the world have offered a diverse array of arguments for climate action-arguments intent on achieving impact at scale-but that hinge on nonanthropocentric environmental ethics, often in relation to Indigenous peoples’ own institutions for taking care of the environment, or ‘caretaking institutions’. These arguments contain claims, based on nonanthropocentric ideas, about how climate action can be scaled up through Indigenous caretaking institutions. Additionally, one of the successful measures some Indigenous peoples have taken to scale up climate action is to carve out formal spaces in national and multilateral institutions for philosophizing about nonanthropocentric ethics and climate action. Climate ethicists should consider the contribution Indigenous peoples are making in developing nonanthropocentric ethics for climate action, both for developing philosophical approaches and for the actual mitigation of climate change ‘at scale’.

Trevor Reed on NAGPRA

Matthew L.M. Fletcher

Trevor Reed has posted “The Intangible NAGPRA,” forthcoming in the Maryland Law Review, on SSRN.

Here is the abstract:

Following a 2023 regulatory update, the Native American Graves Protection and Repatriation Act (“NAGPRA”) of 1990, which recognizes Tribal Nations’ ownership interests in their ancestors and artifacts, now expressly includes a controversial public display right that has shuttered museum displays across the country. Though functionally similar to widely criticized provisions of Italian cultural heritage law, I argue that the new regulations are justifiable given the unique status of Tribal Nations in U.S. constitutional law and Congress’s intent to negotiate a remedy for long-standing human rights abuses.  Indeed, the Intangible NAGPRA is precisely what Tribal representatives on the Congressionally mandated year-long Panel for a National Dialogue on Museum/Native American Relations believed they were working toward in the lead-up to NAGPRA’s passage.  Thus, this paper encourages the continued exercise of Indigenous peoples’ rights to protect their ancestors, belongings, sacred and cultural materials and the corresponding intellectual property rights that pertain to them.

Tanner Allread on Indigenous Constitutionalism

Matthew L.M. Fletcher

W. Tanner Allread has published “Indigenous Constitutionalism” in the Harvard Law Review.

Highly recommended. This is highly original and thoughtful scholarship on tribal law and the important role it plays in American legal theory.

Here is the abstract:

By standard accounts, there are fifty-four constitutions across the federal, state, and territorial governments of the United States. But in fact, there are 230 other governmental constitutions that currently govern peoples and territories within the United States. These constitutions not only flow from a sovereignty that existed prior to the United States but also came out of a legal movement that asserted its independence from both the U.S. Constitution and state constitutions. This Article tells the story of these constitutions — the constitutions of Native nations. Having existed for over two centuries with an archive of thousands of constitutional documents and amendments, tribal constitutions have been left out of the narratives of American constitutional history while being obscured within the fields of American constitutional law and federal Indian law. This Article corrects these oversights and calls for the recognition of a tradition of “Indigenous constitutionalism” in the United States. This Article’s aims are both theoretical and historical. On one hand, it conceptualizes Indigenous constitutionalism as a distinct and shared constitutional practice through which Native nations claim and exercise self-governance while embedded in the wider constitutional — and colonial — landscape of the United States. On the other hand, this Article draws Indigenous constitutionalism’s features from the two-hundred-year history of tribal constitutions. It explores, for the first time, three major eras of tribal constitutional development: the first constitutions during the early nineteenth-century period of Indian Removal, the explosion of constitutions under the Indian Reorganization Act in the early twentieth century, and the movement for tribal constitutional reform that has stretched from the late twentieth century to today. But this Article also brings theory and history together to rethink the prevalent narratives surrounding tribal law, federal Indian law, and American constitutionalism. Indigenous constitutionalism reveals the fundamental and persistent questions around which a tribal constitutional law framework can be constructed. It also revises the origin stories of federal Indian law, demonstrating that the field did not coalesce in isolation from tribal law but was actually cocreated with tribal constitutions. Finally, by placing tribal constitutions into conversation with other American charters, Indigenous constitutionalism disrupts and expands the category of constitutionalism itself. This Article demonstrates that tribal constitutions — unique among American constitutions — showcase how these documents can appear in many forms, function as external-facing declarations of sovereignty, and exist alongside other forms of fundamental law.

Kate Fort on ICWA Enforcement

Matthew L.M. Fletcher

Kathryn E. Fort has published “The Challenge of Indian Child Welfare Act Enforcement in the Modern Age of Child Dependency” in the Yale Law Journal Forum.

Here is the abstract:

Nearly fifty years after its passage, the Indian Child Welfare Act (ICWA) remains a vital part of the child welfare system to protect Native children and families. Since then, both federal and state law have incorporated provisions of ICWA for the benefit of all families in that system. However, ICWA itself is regularly disregarded and misunderstood by practitioners and judicial officers. This Essay describes the application of ICWA in the current child welfare system, as well as identifies programs designed to improve implementation of the law, all from the perspective of an appellate practitioner with twenty years of ICWA experience. While there is no magic wand to wave that can fix the persistent barriers to ICWA enforcement and implementation, the continued work of those committed to changing the current system creates solutions that can benefit Native families and, if history is any guide, ultimately all families.

New Scholarship on Electrifying the Navajo Nation

Matthew 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

Matthew 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

Matthew 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.