Scholarship

Lauren van Schilfgaarde on Tribal Lay Advocates

Matthew L.M. Fletcher

Lauren van Schilfgaarde has posted “The Statutory Influence of Tribal Lay Advocates,” a book chapter forthcoming in “Rethinking the Lawyer’s Monopoly: Access to Justice and Future of Legal Services,” on SSRN.

Here is the abstract:

There is a lawyer shortage in Indian country. Comparable to Indigenous people across the globe, Native Americans lack access to justice in strikingly disproportionate numbers compared to non-Natives. This is in part because typical access to justice initiatives tend to fail rural communities, and particularly Native communities. Firstly, there are not enough Native attorneys. While Native Americans are approximately 1.6 percent of the U.S. population, they represent only 0.3 percent of the legal profession, a disproportionality that has been observed as “stark beyond measure.” In addition to education-access barriers, this disproportionality is rooted in historical efforts to bar Natives from participating in the American legal system, including from serving on juries, from serving as witnesses, and even from U.S. citizenship. Secondly, Non-Native attorneys are not filling the gap. There are not enough resources to attract attorney representatives, including woefully underfunded court systems coupled with insufficient compensation and housing for attorneys. Yet, the legal needs in Indian country are extensive. The vestiges of historical oppression against Natives manifest in devastating metrics, including the country’s highest rates of poverty and unemployment.

Intriguingly however, access to justice initiatives within Indian country do not exclusively focus on expanding access to attorneys, largely because Tribal legal traditions are not wholly dependent on lawyers. For example, the practice of Tribal law, an intellectual tradition dating back millennia, does not center the lawyer, but instead centers community customs and expectations. Further, Native Americans’ practices in Tribal court, which reflect their long-established legal traditions and continue as recognized expressions of their Tribal sovereignty, were established without the formal equivalent of the lawyer. The hundreds of Tribal courts across Indian country operate around and with lawyers, but also with experts in Tribal customary law, like elders, and with traditional processes and remedies, like peacemaking and restorative reparations. Lawyers tend to have a crippling lack of familiarity with Tribal courts and a false sense that Tribal law is an inferior practice area. Thus, even assuming attorneys came flocking to the Tribal court, and the Tribe had sufficient funds and political will to hire them on behalf of the Tribe, a law school-trained, state-barred attorney may nevertheless still lack the necessary legal and cultural competence to meet the needs of the Tribal court.

Outside of Indian country, the broader access-to-justice movement is increasingly calling for options apart from lawyers. Given the historical evolution of Tribal courts and their creative innovations to accommodate non-lawyer practitioners, Tribal courts may offer some useful insight for broader access-to-justice initiatives.

This chapter examines Tribal codes to determine the extent to which Tribes have codified the eligibility of lay advocates to appear in Tribal courts, and how, if at all, Tribes have contended with ethical concerns surrounding lay advocates, including their competence and accountability. It reveals how Tribal codes expressly incorporate cultural elements into the lay advocate’s roles. By examining Tribal codes, this chapter provides insight into Tribal views on lay advocates’ ability to enhance Tribal members’ access to justice, and also sheds light on potential guardrails to ensure that lay advocates provide ethical and effective representation.

Kirsten Carlson on Access to Justice in the Shadow of Colonialism

Matthew L.M. Fletcher

Kirsten Matoy Carlson has posted “Access to Justice in the Shadow of Colonialism,” published in the Harvard Civil Rights-Civil Liberties Law Review, on SSRN.

Here is the abstract:

The legal needs of most Americans go unmet, but American Indians and Alaska Natives face particular challenges in seeking access to justice. This article describes the complexity of access to justice issues in Native communities. Access to justice in Indian Country exists in the shadow of colonialism. The legacy of settler colonialism, including the imposition of unfamiliar laws and legal processes, has and continues to affect what justice means and how it is experienced by tribal governments, Native communities, and individual Natives. Understanding this unique backdrop encourages access to justice scholars to reconsider the centrality of power dynamics to access to justice.

Connecticut Law Review Symposium on Indian Law

Matthew L.M. Fletcher

Here:

Haaland v. Brackeen and Mancari: On History, Taking Children, and the Right-Wing Assault on Indigenous Sovereignty

Laura Briggs

In June 2023, the Supreme Court upheld the constitutionality of the Indian Child Welfare Act (ICWA) of 1978 in Haaland v. Brackeen, making it harder for (some) Indigenous families and communities to lose their children. The decision left one key question unanswered, however: whether protections specifically for American Indian households served as an illegitimate “racial” preference. Justice Amy Coney Barrett’s opinion for the majority argued that the petitioners lacked standing to raise this issue. Thus, the Court left the door open to continuing challenges by those who have an interest in using ICWA’s cute children and clean-cut evangelical Christian parents to try to put an end to this and all related statutes that give so-called “preferential treatment” to American Indians—including in gaming compacts, employment, federal treaties, and essentially all of Indian law. (more…)

Haaland v. Brackeen—A Window into Presenting Tribal Cases to the Court

Ian Heath Gershengorn

In this Essay, as I did at the Connecticut Law Review’s Symposium, I draw on my experience representing Tribes in Haaland v. Brackeen to discuss more broadly the effective presentation of tribal arguments to the Court. I touch briefly on four main topics. First, I discuss how we collaborated with amici to ensure that the Court would have the full context as it considered the issues in Brackeen. Second, I discuss how we thought about preparing for the argument and the particular importance of understanding the practical operation of the Indian Child Welfare Act. Third, I offer a few observations on the oral argument itself, focusing on how the structure of the argument influences the substance of the argument. And fourth, I step back and discuss why this is a particularly interesting and challenging time to argue Indian law cases before the Supreme Court. (more…)

Interrogating Haaland v. Brackeen: Family Regulation, Constitutional Power, and Tribal Resilience: The Connecticut Law Review Symposium

Casey M. Corvino & Julia R. Vassallo

In October 2023, the Connecticut Law Review hosted the Symposium “Interrogating Haaland v. Brackeen: Family Regulation, Constitutional Power, and Tribal Resilience.” The symposium was centered on the state of federal Indian law in the wake of the Brackeen decision. This decision was a victory for Indigenous families and Native nations as it left the Indian Child Welfare Act (ICWA) unscathed and affirmed the constitutional relationship between tribal nations and the United States. However, threats to tribal sovereignty continue as a handful of states and interest groups continue to seek ways to challenge tribal authority and federal laws that support it. (more…)

Nondelegation and Native Nations

Seth Davis

There is no nondelegation doctrine for Native nations, nor should there be one even if the Supreme Court revives the nondelegation doctrine for federal agencies and private parties. The Court has never struck down a statute on the ground that it delegated legislative power to a Native nation. Instead, it has held that Congress may recognize the sovereignty of Native nations and that their independent authority sustains statutes that rely upon Native governments to implement policy goals that they share with the United States. (more…)

The Original Meaning of Commerce in the Indian Commerce Clause

Gregory Ablavsky

In Haaland v. Brackeen, the Supreme Court returned to the foundational question of federal authority over relations between the United States and Native nations, long known as “Indian affairs.” The decision reaffirmed well-established precedent affirming broad federal authority in the area, but it also underscored ongoing disagreement, as Justices Gorsuch and Thomas offered lengthy and dueling investigations of the original understanding.

This Essay explores one aspect of that history: the original meaning of “commerce” in the Indian Commerce Clause. Nearly a decade ago, I wrote an article that sought, as its title indicated, to move “beyond the Indian Commerce Clause.” The Clause, I argued, was only one small component in how the early American political elite understood federal authority in this area. (more…)

Tribal Law Journal Vol. 24 Call For Papers

Matthew L.M. Fletcher

Here:

Pages: 1 2

Gathering of Indigenous Law Scholars @ UCLA

Matthew L.M. Fletcher

Blumm & Eno on the Biden Administration’s Policies on Tribal Management of Ceded Lands

Matthew L.M. Fletcher

Michael C. Blumm and Adam Eno have posted “Tribal Co-Management in the Biden Administration: Affirming a Commitment to Honor Tribal Voices on Ceded Lands” on SSRN.

Here is the abstract:

Native American Tribes transferred to the United States more than two billion acres of land over a century-and-a-half, as the federal government acquired land for white settlement. The land cessions left the Tribes with just 2.6% of the homelands. Most of the land ceded was eventually settled, but a significant portion was not and is now managed as federal public lands under supervision of a variety of federal agencies. Today, the U.S. has some 640 million acres in federal land ownership, about 28% of the total lands of the country. The Biden administration has taken significant, unprecedented steps to involve tribes in the management of their ceded lands. Implementation of the Biden initiatives may revolutionize public land management, although the process of instituting Tribal consultation and co-management is still underway. This article explains the Biden efforts at co-management, highlighting several on-the-ground initiatives. The article maintains that a proper interpretation of the land cession agreements-consistent with the judicial canons of construction for federal agreements with Tribes-would conclude that the tribal conveyances to the U.S. included an implicit promise that ceded lands that failed to achieve the settlement purpose would be managed with Tribal participation, in order to ensure the protection of important Tribal cultural, subsistence, and economic resources. Although the Biden initiatives are a welcome beginning to fulfilling this neglected promise, since they are merely implementing what should be seen as an implicit servitude demanding a Tribal voice in their unsettled, ceded lands, they should not be reversible by a subsequent administration.

Public Land & Resources Law Review Call for Submissions [Nov. 1, 2024 Deadline]

Matthew L.M. Fletcher

Here:

2025 Call for Submissions.pdfDownload

New Scholarship on Native Hawaiians, Blockchains, and Environmental Self-Determination

Matthew L.M. Fletcher

MJ Palau-McDonald has posted “Blockchains and Environmental Self-Determination for the Native Hawaiian People” on SSRN.

Here is the abstract:

This note argues that blockchain technology may be a tool to help Native Hawaiian and other Indigenous communities protect biocultural resources, restore self-determination and improve social determinants of health and well-being, as part of the right to environmental self-determination.

These are supposed to be Hawaiian chickens. . . . .

New Scholarship on Peacemaking in the 1L Curriculum

Matthew L.M. Fletcher

Nice Rossio, Tim Connors, Margaret Connors, Cheryl Fairbanks, William Hall, and Brett Shelton have published “Restructuring American Law Schools: Peacemaking in the First Year Curriculum” in the Wayne Law Review.

Restructuring American Law Schools Peacemaking in First Year Curriculum.pdfDownload

John Leshy on Current Issues with Public Lands and Indians

Matthew L.M. Fletcher

John D. Leshy has published “Public Lands and Native Americans: A Guide to Current Issues” in the Public Lands & Resources Law Review.

Here is the abstract:

After briefly summarizing the dispossession of Indigenous peoples beginning around 1500 in what became the U.S., and the U.S. decision beginning around 1890 to hold title to and conserve some 600 million acres of land, this paper addresses the rise in recent decades of Native American influence on those lands. It focuses on three manifestations of that influence: (a) conserving cultural and ecological values; (b) seeking to “co-manage” or “co-steward” those lands with federal land management agencies; and (b) seeking to regain some measure of formal ownership, or “land back.” The paper delves into the details of each, showing the many variables involved depending on local circumstances, and highlighting the political and policy complications that can make progress difficult, particularly on (b) and (c).