Scholarship

Jason Robison on Yellowstone River

Matthew L.M. Fletcher

Jason Robison has posted “Equity Along the Yellowstone,” published in the University of Colorado Law Review, on SSRN.

Here is the abstract:

As one of three major rivers with headwaters in the sublime Greater Yellowstone Ecosystem, the Yellowstone and its tributaries are subject to an interstate compact (a.k.a. “domestic water treaty”) litigated from 2007 to 2018 in the U.S. Supreme Court in Montana v. Wyoming. Four tribal nations exist within the 71,000 square‑mile Yellowstone River Basin: the Crow, Eastern Shoshone, Northern Arapaho, and Northern Cheyenne. Yet, the Yellowstone River Compact, ratified in 1951, more than a decade before the self‑determination era of federal Indian policy began, neither affords these tribal sovereigns representation on the Yellowstone River Compact Commission nor clearly addresses the status of their water rights within (or outside) the compact’s apportionment. Such marginalization is systemic across Western water compacts. Devised as alternatives to original actions for equitable apportionment before the U.S. Supreme Court, this Article focuses on the Yellowstone River Compact and its stated purpose of “equitable division and apportionment,” reconsidering the meaning of “equity,” procedurally and substantively, from a present‑day perspective more than a half‑century into the self‑determination era. Equity is a pervasive and venerable norm for transboundary water law and policy contends the Article, and equity indeed should be realized along the Yellowstone in coming years, both by affording the basin tribes opportunities to be represented alongside their federal and state co‑sovereigns on the Yellowstone River Compact Commission, as well as by clarifying the status of and protecting the basin tribes’ water rights under the compact’s apportionment.

American Indian Law Review, Vol. 48, Issue 2

Matthew L.M. Fletcher

Here:

How Poor Is Poor Enough? How Jurisdictional Differences in Implementing the Right to Counsel Affect Indigent Native Americans
J. Santana Spangler-Day

PDF

Benefit Corporations—A Tool for Economic Development and Fostering Sovereignty in Tribal Business Structures
Madelynn M. Dancer

Notes

PDF

The Amplified Federal Obligation: Why Dobbs v. Jackson Women’s Health OrganizationAmplifies the Federal Government’s Obligation to Provide Comprehensive Reproductive Health Care in Native American Communities
Rebecca M. Kamp

PDF

Oklahoma v. Castro-Huerta—Using Sentencing Inequities to Address the Oliphant in the Room
Dillon M. Sullivan

Special Feature

PDF

A Tribal Court Blueprint for the Choctaw Freedmen: Effect of Cherokee Nation v. Nash
LeeAnn Littlejohn

John Beaty on Tribal Eminent Domain

Matthew L.M. Fletcher

John Beaty has published “Tribal Eminent Domain: Sovereignty Gaps and Policy Solutions” in the New Mexico Law Review. PDF

Abstract:

This Article addresses the existence and scope of the tribal power of eminent domain. American Indian Tribes are sovereign entities within the United States and can exercise many traditional government powers. However, centuries of actions by the United States’ executive, legislative, and judicial branches have eaten away at the fabric of tribal sovereign powers. Currently, the scope of tribal sovereign authority is unclear with regards to eminent domain, the practice of a sovereign taking private property for public use. Eminent domain is important to many tribal governmental interests, including infrastructure development and fighting the fractionation of land interests. Although eminent domain is considered a quintessential sovereign power, scholars, courts, and tribes are unsure of the existence and scope of inherent eminent domain. This Article uses first principles, statutory enactments, tribal practice, and case law to argue that tribes retain some form of eminent domain. However, that power has limited application to nonmembers living on tribal land, hampering its effectiveness as both a practical tool and sovereign power. To fill the gaps, this Article proposes two statutes Congress can adopt, one reaffirming the existence of tribal eminent domain power and one delegating federal eminent domain power. By addressing the limits of tribal eminent domain, Congress can support tribes in their sovereign capacity as governments and allow tribes to fulfill their important policy priorities.

Grant Christensen on Article IV: The New-ish Hope

Matthew L.M. Fletcher

Grant Christensen has published “Article IV and Indian Tribes” in the Iowa Law Review (PDF). Here is the abstract:

Unlike the first three articles of the Constitution which create the three branches of the federal government and articulate their limited powers, Article IV establishes a set of rules to police the actions of states and knit them together into a single union. Notably absent from Article IV is any mention of the tribal sovereign. Concomitantly, there has been no comprehensive academic discussion addressing how the tribal sovereign complicates the purposes of Article IV. This piece advances a completely new understanding of Article IV and its implications in federal Indian law. It argues that where Article IV advances rights to individual citizens (i.e., a citizen’s right to enforce a court judgment or their claim to the protection of the Privileges and Immunities Clause) then states may not use an individual’s connection to any tribal sovereign as an excuse to deny them the protections of those rights. In contrast, where Article IV speaks to rules designed to ensure states treat each other respectfully (i.e., requests for extradition, claims under the Equal Footing Doctrine, or any attempt to enforce the Guarantee Clause) then Article IV’s rules do not permit states to abridge, abrogate, modify, or erode the inherent rights of tribal nations. As the Court has recently opined, tribal governments themselves were absent from the Constitutional Convention and so constitutional limitations on the inherent powers of state sovereigns do not extend to tribal governments.  

Texas Journal of Civil Rights and Civil Liberties Seeks Indian Law Paper [they have a spot left!]

Matthew L.M. Fletcher

Here:

The Texas Journal of Civil Rights and Civil Liberties is seeking a final article for our spring special issue on Indigenous Rights. Articles from legal scholars, practitioners, or individuals with unique expertise on legal issues pertaining to Indigenous Rights are all welcome. If you have any articles on Indigenous issues, please submit them to us via scholastica or to this email (tjclcrsubmissions@gmail.com). Article length can vary (typically from 30-60 pages) and so can topics. Our priority deadline for submissions is February 20, and we will consider submissions after this only if we have still not found our final piece. Any questions or concerns can also be sent to the TJCLCR submissions editor at this email: tjclcrsubmissions@gmail.com.

van Schilfgaarde on Tribal Cultural Heritage

Matthew L.M. Fletcher

Lauren van Schilfgaarde has posted “American Cultural Heritage’s Embrace of Tribal Cultural Heritage,” published in the Kansas Journal of Law and Public Policy, on SSRN.

Here is the abstract:

Historically, Tribal cultural heritage has been conceptualized as fundamentally distinct from American cultural heritage. Consequently, Tribal cultural heritage has received only piecemeal protection under the typical American cultural heritage law framework. However, as Tribal advocates have pressed for protections of Tribal cultural heritage, they have influenced the ways in which American cultural heritage law is interpreted and implemented. There has been accordingly, a recent shift in how American cultural heritage law values and identifies Tribal cultural heritage law as fundamentally American— and with it, a promising embrace of Indigenous rights. This essay will explore that shift, noting two of the most recent developments—the 2023 NAGPRA regulations and the STOP Act of 2021, and the need for more institutionalized protection, predominately protections for confidentiality.

Study of South Dakota Indian Country Lawyers

Matthew L.M. Fletcher

Bryce Drapeaux & Hannah Haksgaard have published Indian Country Lawyers: A South Dakota Survey in the South Dakota Law Review.

Here is an abstract representation of South Dakota:

Scholarship on the Legal History of the Leech Lake Reservation

Matthew L.M. Fletcher

Douglas P. Thompson, Jason Decker, Torivio A. Fodder, Gavin M. Ratcliffe, Michael J. Dockry, Ben Benoit, and Christopher Murray, have published “Opportunities for Reconciliation: The Legal History of the Leech Lake Indian Reservation and the Chippewa National Forest” in the Mitchell Hamline Law Review.

Here is the abstract (painting):

Lauren van Schilfgaarde on Native Reproductive Self-Determination

Matthew L.M. Fletcher

Lauren van Schilfgaarde has posted “Native Reproductive Self-Determination,” forthcoming in the UCLA Law Review, on SSRN. Here is the abstract:

Like the overall well-being of Indigenous peoples, Native reproductive health has been deeply impacted by the direct and collateral consequences of settler colonialism. Today, Natives experience some of the most dire reproductive health disparities. Unlike other health care systems, however, Native health care is sui generis. The federal government has treaty, trust, and statutory obligations to provide Native Americans with health care, most prominently operationalized in the Indian Health Service (IHS). Unfortunately, the perpetual underfunded status of IHS coupled with draconian policies has meant that Native reproductive health is dismally served. Moreover, reproductive health tends to be exceptionalized—treated as a distinct component of health care that is often underprioritized or even entirely cut. But even if the IHS budget was instantly enhanced and even if reproductive health care was instantly prioritized across health systems, Native reproductive health care would still lack its most essential ingredient: self-determination.

The term “self-determination” has grown significant national and international meaning, both in relation to Tribes and reproductive justice. Native reproductive self-determination, however, remains an undertheorized confluence. Indigenous reproductive health was only explicitly acknowledged by an international body in 2022, General Recommendation 39 issued by the Committee on the Elimination of Discrimination Against Women (CEDAW) regarding Indigenous women and girls. General Recommendation 39 acknowledges both the collective rights of Indigenous peoples to exist as a self-determined people and the unique vulnerability of Indigenous women and girls. This framework offers an important and expansive conceptualization of the federal duties owed to Native reproductive self-determination and a path out of the paternalistic and harmful logics that have historically formed Native reproductive health care. Indigenous rights must be positioned within a historical context to inform not just the rights of Indigenous peoples to be recognized and to self-govern but also to stress the positive obligations that the nation-state owes toward Indigenous peoples. A historical context that informs the nation state’s positive obligations are themselves background to the realization of a self-determined collective—in this case, to ensure Native reproductive self-determination.

“The Three Lives of Mamengwaa: Toward an Indigenous Canon of Construction” Article Now Published By Yale

Matthew L.M. Fletcher

Here.

Abstract:

For too long, tribal judiciaries have been an afterthought in the story of tribal self-determination. Until the last half-century, many tribal nations relied on federally administered courts or had no court systems at all. As tribal nations continue to develop their law-enforcement and police powers, tribal justice systems now play a critical role in tribal self-determination. But because tribal codes and constitutions tend to borrow extensively from federal and state law, tribal judges find themselves forced to apply and enforce laws that are poor cultural fits for Indian communities—an unfortunate reality that hampers tribal judges’ ability to regulate and improve tribal governance.

Even where tribal legislatures leave room for tribal judges to apply tribal customary law, the results are haphazard at best. This Article surveys a sample of tribal-court decisions that have used customary law to regulate tribal governance. Tribal judges have interpreted customary law when it is expressly incorporated into tribal positive law, they have looked to customary law to provide substantive rules of decision, and they have relied on customary law as an interpretive tool. Reliance on customary law is ascendant, but still rare, in tribal courts.

Recognizing that Indian country will continue to rely on borrowed laws, and aiming to empower tribal courts to advance tribal governance, this Article proposes that tribal judges adopt an Indigenous canon of construction of tribal laws. Elevating a thirty-year-old taxonomy first articulated by Chief Justice Irvin in Stepetin v. Nisqually Indian Community, this Article recommends that tribal judges seek out and apply tribal customary law in cases where (1) the relevant doctrine arose in federal or state statutes or common law; (2) the tribal nation has not explicitly adopted federal or state law on a given issue in writing; (3) written tribal law was adopted or shifted as a result of the colonizer’s pressure and interests; and (4) tribal custom is inconsistent with the written tribal law, most especially if the law violates the relational philosophies of that tribal nation. Tribal judiciaries experienced at applying tribal customary law will be better positioned to do justice in Indian country.