Scholarship

Yale Law Journal Comment on the Law of Nations Origin to the Marshall Trilogy

Matthew L.M. Fletcher

Eric Eisner has published “The Law-of-Nations Origins of the Marshall Trilogy” in the Yale Law Journal. PDF

Here is the abstract:

Federal Indian law is sometimes seen as a purely domestic part of American law, but its origins are in the law of nations. The Marshall Trilogy—Johnson v. M’Intosh, Cherokee Nation v. Georgia, and Worcester v. Georgia, three Supreme Court decisions authored by Chief Justice Marshall that are foundational for American federal Indian law—relied on law-of-nations sources. In particular, The Law of Nations, an eighteenth-century treatise by Emer de Vattel, provided a central influence on Marshall’s opinion in Worcester. In early national American legal thought, Vattel was a leading authority on the law governing the rights and obligations subsisting among nations. Recognizing the important role that the law of nations played in the foundations of federal Indian law under-scores the deep roots of tribal sovereignty in American law and clarifies current doctrinal disputes.

John Marshall
Emer de Vattel

Who would win in a fight?

Pat Sekaquaptewa and Grace Carson on Circle Sentencing in Alaska

Matthew L.M. Fletcher

Pat Sekaquaptewa and Grace Carson have published “You May Think You Know What Is Going on with Circle Peacemaking, but Alaska Natives have Other Ideas” in the ABA Dispute Resolution Magazine.

Charles Wilkinson on the History of the Boldt Decision

Matthew L.M. Fletcher

Charles F. Wilkinson and the University of Washington Press have published “Treaty Justice: The Northwest Tribes, the Boldt Decision, and the Recognition of Fishing Rights.”

Blurb:

In 1974, Judge George Boldt issued a ruling that affirmed the fishing rights and tribal sovereignty of Native nations in Washington State. The Boldt Decision transformed Indigenous law and resource management across the United States and beyond. Like Brown v. Board of Education, the case also brought about far-reaching societal changes, reinforcing tribal sovereignty and remedying decades of injustice.

Eminent legal historian and tribal advocate Charles Wilkinson tells the dramatic story of the Boldt Decision against the backdrop of salmon’s central place in the cultures and economies of the Pacific Northwest. In the 1960s, Native people reasserted their fishing rights as delineated in nineteenth-century treaties. In response, state officials worked with non-Indian commercial and sport fishing interests to forcefully—and often violently—oppose Native actions. These “fish wars” spurred twenty tribes and the US government to file suit in federal court. Moved by the testimony of tribal leaders and other experts, Boldt pointedly waited until Lincoln’s birthday to hand down a decision recognizing the tribes’ right to half of the state’s fish. The case’s long aftermath led from the Supreme Court’s affirmation of Boldt’s opinion to collaborative management of the harvest of salmon and other marine resources.

Expert and compelling, Treaty Justice weaves personalities and local detail into the definitive account of one of the twentieth century’s most important civil rights cases.

New Book (soon): Greg Bigler’s Rabbit Decolonizes the Forest

Matthew L.M. Fletcher

Gregory H. Bigler and the University of Oklahoma Press will soon publish “Rabbit Decolonizes the Forest: Stories from the Euchee Reservation.”

Blurb:

Before their forced removal to Oklahoma in the 1830s, the Euchee people lived in Georgia and other southeastern territories. Today the Euchees are enrolled members of the Muscogee Nation of Oklahoma, but they possess their own language, culture, and traditions. This unique collection by Euchee citizen Gregory H. Bigler combines traditional di’ile (Euchee tales), personal recollections, and contemporary stories to portray a way of life often hidden from view.

Written in an engaging, down-to-earth style, the stories in this book immerse the reader in the everyday experiences of the Euchee community. With his gift for storytelling, Bigler welcomes readers into the lives and culture of the people whose stories he has heard or observed throughout his life and career as a lawyer and judge. Unforgettable characters appear or reappear in various settings, and these figures, whether animal or human, are bound to bring forth a chuckle or leave the reader wanting to learn more about their history. Some of the tales address serious legal injustices, while others poke gentle fun at lofty academic constructs. In the title story, for example, the mischievous character Shajwane (Rabbit), resolves to decolonize the forest, to strip away its “false narrative,” by literally removing all new growth from the trees.

These stories bring to life Euchee traditions that include family ties, the stomp dance, and communal cooking and feasting. Woven throughout is the sacred element of spirit. As Bigler explains in his introduction, the “spiritual” for Euchees signifies not a Western quest for peace or centeredness but a world filled with animate spirits that interact with all of us—as we see them, feel them, or seek them out.

The Euchee people are unknown to most Americans. They inhabit a small area southwest of Tulsa and have yet to receive federal recognition. Yet even in their modern-day lives—as these stories capture so beautifully—the Euchee people remain fiercely determined to show “they are still here.”

Yale Law Journal Submissions Now Open

Matthew L.M. Fletcher

The Yale Law Journal’s submissions season opened on February 1, and we are reaching out to see if you would be able to share a call for submissions on Turtle Talk. The Articles and Essays submissions guidelines can be found here.

We greatly appreciate your time, and we hope to hear from you soon! 

Best,

Ashlee Fox, Meghan Gupta, and Lily Moore-Eissenberg, on behalf of the Yale Law Journal

Yale

New Student Scholarship on Free Exercise Claims to Indigenous Rights

Matthew L.M. Fletcher

Anna Sonju has posted “Free Exercise Claims Over Indigenous Sacred Sites: Justice Long Overdue,” forthcoming in the Virginia Law Review, on SSRN. Here is the abstract:

This Note argues for a change in the Supreme Court’s treatment of free exercise claims over Indigenous sacred sites. First, this Note reasons that, in Lyng v. Northwest Indian Cemetery Protective Association, the Court set an impossibly high standard for parties bringing sacred site free exercise claims against the government. This insurmountable standard, masking itself as strict scrutiny, implicitly precludes any claimant from prevailing against a government action designated for a sacred site. Further, statutes aimed at protecting religious liberty have resolved little, leaving no choice but to rework the standard.

Next, this Note delves into three pre-existing theories from like-minded critics of Lyng, analyzing the pros and cons of their proposed approaches to sacred site free exercise claims. Lastly, this Note sets forth a novel test which modifies the framework courts currently use in free exercise jurisprudence. Appreciating the fundamental distinctions between religious land and religious acts, this new test is uniquely tailored to address claims over sacred lands. This proposed test seeks to (1) give religious claimants a realistic opportunity to meet their initial burden in court, (2) put sacred site claims on equal footing with other free exercise claims, and (3) address the Supreme Court’s concerns with overexpanding free exercise doctrine.

American Indian Law Journal — New Issue — Volume 12, Issue 1

Matthew L.M. Fletcher

Here:

Current Issue: Volume 12, Issue 1 (2023)

Articles

PDF

Seeking Higher Ground: Developing a Tribal Model Code for Disaster and Emergency Management in a Complex Jurisdictional Environment
Brian Candelaria

PDF

Reclaiming Sacred Homelands: Asserting Treaty Rights and the Path Towards Restoration of the Badger-Two Medicine
Sarah Greenberg

PDF

A New Cobell: The Need for a Continued Buy-Back Program
Liam C. Conrad

Note

PDF

Case Law on American Indians: October 2022 – August 2023
Thomas P. Schlosser

New Issue of UCLA Indigenous Journal of Law, Culture & Resistance — Vol. 8

Matthew L.M. Fletcher

Articles

Decolonization of Language Policy in Arctic Canada – Letter to the Editor

Colonialism in northern Canada is not a historical artefact because the bureaucratic structure of colonial government persists. If parts of southern Canada are discussing post-colonial frameworks, then we must consider that the northernmost Territory of Nunavut (“our land”) is in a syn-colonial condition and the present trend is for it to continue. Canada endorsed the United Nations Declaration on the Rights of Indigenous People in 2016 and enacted it in 2021. If Canada is truly committed to a philosophy of reconciliation and decolonization, then it will make policy changes in the north that follow a guiding principle of self-determination for indigenous people. The simplest changes would be 1) to deliver more Inuktut instruction in schools and 2) to add knowledge… 

Revitalizing Stewardship and Use of Tribal Traditional Territories: Options for Improving California Policy and Law in State-Managed Lands and Waters

California dispossessed Indian tribes of millions of acres in the decades following the State’s founding. Loss of tribal land and waters largely cut off Indian tribes from ancestral territories on which they depend for food, culture and identity. Tribal arguments for rights to these areas outside their reservations have some support in the law, but solutions are better produced in a collaborative process between sovereign Indian tribes and State resource agencies. Recent changes in State policy that seek to remedy historic injustices and respect tribal sovereignty provide opportunities for joint efforts. The authors propose seven options for discussion among Indian tribes and State agencies. The goal is to catalyze a process by which the tribes and agencies may… 

Eagle Permits, RFRA, and American Indian Religious Freedom: Legal Avenues for First Amendment Protection

Built on a colonial discourse of justifiable Christian conquest, United States federal Indian law and policies have specifically targeted American Indian religious practices as a way to assimilate American Indians into the dominant colonizing culture and to undermine tribal sovereignty. Federal policies throughout colonization and into the present have drastically swung between denying American Indian religious practice and allowing for it under federal control, creating a confusing string of conflicting precedent. Although the worst of these practices has largely been abandoned, the paternalism of the United States government continues today with the creation and oversight of a permit system, which regulates the use and possession of bald and golden… 

E PULE KĀKOU! (LET US PRAY!): Constitutionality and Practicability of Public School Sponsored Native Hawaiian Prayers

This article argues that the state of Hawai’i should encourage and provide legislative protection for practicing pule in K-12 public schools on a regular basis for cultural and educational purposes. The Hawai’i state constitution should have specific provisions regarding the time, venue, and practitioners of pule. Hawai’i state laws should provide greater protection of Native Hawaiian religious rights than federal laws. Part II introduces the educational and cultural values of pule, its connection with ‘Ōlelo Hawai’i(Native Hawaiian language) from the past to present, and pule practices as educational programs at public schools can contribute to the Third Hawaiian Renaissance. Part III reviews the current Hawai’i state law protection of pule in public schools under… 

The United Nations Declaration on the Rights of Indigenous Peoples in Defense of the Indian Child Welfare Act

The Indian Child Welfare Act (ICWA) is a law that was passed to address the removal crisis of American Indians from their community to non-Indian families. The removal crisis is a result of centuries of detrimental federal government policies such as assimilation laws and boarding schools and campaigns to “adopt out” Indian children. ICWA has been challenged over the years in court but has prevailed. Although child removal has decreased slightly since its adoption, the data on removal are still shocking and must be addressed. The most recent development in the fight over ICWA is Brackeen v. Bernhardt where a non-Indian adoptive couple is suing over ICWA’s constitutionality under the equal protection clause and Tenth Amendment. Because of the confusion between…

Fletcher on the Sovereignty Problem in Federal Indian Law

Matthew L.M. Fletcher

Check out “The Sovereignty Problem in Federal Indian Law” on SSRN.

Here is the abstract:

There is a sovereignty problem in federal Indian law, namely, that the federal government’s sovereign defenses prevent tribal nations and individual Indian people from realizing justice in the courts. Often, compelling tribal and Indian claims go nowhere as the judiciary defers to the interests of the United States, even where Congress has expressly stated its support for tribal interests. Conversely, tribal judiciaries allow claims to proceed to the merits, invoking customary and traditional law to hold tribal governments accountable.
Sovereignty theory helps to explain why justice can be done in one court system but not another. But federal, state, and tribal courts are all American courts than can and should learn from one another. This paper is an effort to show that federal sovereign defenses are not inevitable, nor are they even necessary.

Data good.

Michael Doran on Tribal Sovereignty and Preemption

Matthew L.M. Fletcher

Michael Dolan has published “Tribal Sovereignty and Preemption” in the Brooklyn Law Review. PDF

Here is the abstract:

In June of 2022, the US Supreme Court held in Oklahoma v. Castro-Huerta that a state may prosecute a non-Indian for a crime committed against an Indian within Indian country. That decision effectively overruled Worcester v. Georgia, an 1832 landmark case in which Chief Justice Marshall said that state law “can have no force” in Indian country. Although the conventional wisdom about Castro-Huerta sees the case as a radical departure from first principles of federal Indian law, this article argues that Castro-Huerta is the natural—although deeply deplorable—next step in a long line of Supreme Court cases expanding state governmental authority within Indian country. Additionally, this line of cases mirrors a separate line restricting tribal governmental authority within Indian country. Through a critical examination and reinterpretation of these two decisional lines, this article demonstrates how the Supreme Court over the last half century has systematically privileged state interests and the interests of non-Indian individuals over tribal interests. In so doing, the Court has arrogated to itself the political function, formerly exercised only by Congress, of defining tribal sovereignty. This article concludes with a call for Congress to reject the Court’s relentless subordination of Indian interests to non-Indian interests and to reassert its role in defining and defending a robust conception of tribal sovereignty.

HIGHLY RECOMMENDED!!