Scholarship

Robin Kundis Craig on Sackett + Navajo + Montana

Matthew L.M. Fletcher

Robin Kundis Craig has posted “Tribes and Water in the Wake of Navajo Nation and Sackett: Treaties, Winters, Montana, and Rights of Nature,” forthcoming in the William & Mary Environmental Law and Policy Review, on SSRN.

Here is the abstract:

As headlines over the last decade have made clear, people in the United States can no longer afford to take fresh water for granted. In the midst of increasing issues regarding both water quality and water quantity (allocation), Tribes are playing an ever-more-active role in the Nation’s water management. This Article provides an overview of the contemporary legal landscape governing tribal authority over water, emphasizing two recent Supreme Court decisions: Sackett v. Environmental Protection Agency (May 2023), in which the Supreme Court cut back on the Clean Water Act’s jurisdictional reach, and Arizona v. Navajo Nation, in which the Court held that the federal government has no trust duty to help Tribes get water.

HIGHLY RECOMMENDED!

Heather Tanana on Women Indigenous Leaders in the Colorado River Basin

Matthew L.M. Fletcher

Heather Tanana has published “Voices of the River: The Rise of Indigenous Women Leaders in the Colorado River Basin” in the Colorado Natural Resources, Energy & Environmental Law Review. Here is the abstract:

Climate change is one of the leading challenges facing tribes today. Traditionally, Indigenous women played significant roles in tribal decision-making and governance. However, European contact and colonization shifted gender dynamics, imposing male-dominated leadership. Recently, Native American women are reclaiming leadership positions—formally within tribal government, as well as informally in prominent community roles. These women are poised to lead the way in protecting their communities against climate change impacts, but support is critical to sustaining pathways to leadership. This article discusses the disproportionate impacts of climate change on tribes and highlights the rise of Indigenous female leadership within the Colorado River Basin to confront these challenges.

Utah Law Review Issue Dedicated to Alex Skibine

Matthew L.M. Fletcher

Here:

Volume 2023, Number 5

PDF

Remembering a Giant—Alex Tallchief Skibine
Elizabeth A. Kronk Warner

PDF

Second-Generation Source of Income Housing Discrimination
Armen H. Merjia

PDF

The Possible Futures of American Democracy
Jedediah Purdy

PDF

Religious Liberty, Discriminatory Intent, and the Conservative Constitution
Luke Boso

PDF

Tribal Cannabis Agriculture Law
Ryan B. Stoa

PDF

It Shouldn’t Be This Hard: The Law and Economics of Business in Indian Country
Adam Crepelle

Note

PDF

Religious Freedom (for most) Restoration Act: A Critical Review of the Ninth Circuit’s Analysis in Apache Stronghold
Alex McFarlin

Breanna Bollig on Indian Education Rights

Matthew L.M. Fletcher

Breanna K. Bollig has published “Improving Public Schools: What Advocates Can Learn From Indian Education Rights” in the Journal of Law and Education.

An except:

Unbeknownst to most education advocates, though, is that Indian education rights provide critical lessons on how to improve schools and the right to education. Just as tribal nations—as separate sovereigns that are capable of enacting their own laws—are considered “laboratories of legal innovation,” there is massive potential for studying Indian education rights. With its successes and failures, education advocates can look to Indian education rights to better develop a strategy to improve public schools. In fact, education advocates could have much needed guidance in asking vital questions surrounding inadequate and inequitable public schools. For example, how should the states and the federal government share the responsibility of education in the United States? How should a federal right to education be created? How can we better hold inadequate and inequitable schools accountable? What other strategies can we use to improve inadequate and inequitable schools?

FNDI Justice Essay by Fletcher: “Justice, the Colonizer, and the Michigan Anishinaabek”

Matthew L.M. Fletcher

First Nations Development Institute (First Nations) is pleased to launch a new online series of essays that focuses on Native justice. With generous support from the Chan Zuckerberg Initiative (CZI), First Nations invited multiple experts to discuss the root causes of Native injustice and highlight possible frameworks to move forward toward Native justice. 

This essay by Matthew L.M. Fletcher, an appellate tribal judge and law professor at Michigan Law, University of Michigan, discusses traditional and contemporary perspectives on justice among his own tribal nation. In this essay, Professor Fletcher explores how the Michigan Anishinaabek have adapted and modified the American court system to reflect the Anishinaabe philosophy of Mino-Bimaadiziwin, which encourages Anishinaabe people to acknowledge and take responsibility for “their actions and inactions on the surrounding world.” He reasons that this tribally specific approach empowers the Anishinaabe court to better serve their own people and communities.

Here.

2023-2024 American Indian Law Review National Writing Competition

Matthew L.M. Fletcher
AILR 2023-2024 National Writing Competition rules sheet.pdfDownload


Announcing the 2023-2024 American Indian Law Review National Writing Competition

This year’s American Indian Law Review national writing competition is now welcoming papers from students at accredited law schools in the United States and Canada.  Papers will be accepted on any legal issue specifically concerning American Indians or other indigenous peoples.  Three cash prizes will be awarded: $1,500 for first place, $750 for second place, and $400 for third place.  Each of the three winning authors will also be awarded an eBook copy of Cohen’s Handbook of Federal Indian Law, provided by LexisNexis.

The deadline for entries is Thursday, February 29, 2024, at 6 p.m. Eastern Standard Time.

Sponsored by the University of Oklahoma College of Law, the American Indian Law Review has proudly served Native and legal communities since 1973.  Each year at this time we encourage law students nationwide to participate in this, the longest-running competition of its kind.  Papers will be judged by a panel of Indian law scholars and by the editors of the Review.

For further information on eligibility, entry requirements, and judging crit

Tanner Allread on SCOTUS’ Improper Use of Indian Removal Era Analysis in Modern Day Indian Law Cases

Matthew L.M. Fletcher

W. Tanner Allread has published “The Specter of Indian Removal: The Persistence of State Supremacy Arguments in Federal Indian Law” in the Columbia Law Review. PDF

Abstract:

In the 2022 case of Oklahoma v. Castro-Huerta, the Supreme Court departed from one of the foundational cases in federal Indian law, Worcester v. Georgia. Chief Justice John Marshall’s 1832 opinion had dismissed state power over Indian Country. But in Castro-Huerta, the Court took precisely the kind of arguments about state power that Chief Justice Marshall rejected in Worcester and turned them into the law of the land—without any recognition of the arguments’ Indian Removal–era origins.

This Article corrects the Court’s oversight. Relying on rarely utilized archival sources, it provides a historical narrative of the development of what the Article terms the theory of state supremacy, first articulated by the southern state legislatures in the Removal Era to justify state power over Native nations and eradicate Native sovereignty. Even though Worcester rejected this theory, Supreme Court Justices and state litigants have continued to invoke its tenets in Indian law cases from the late nineteenth century to the present. Castro-Huerta, then, is just the latest and most egregious example. And the decision’s use of Removal-era arguments revives the specter of Indian Removal in the present day.

This Article reveals that the continued use of state supremacy arguments defies constitutional law and federal Indian affairs policy, produces an inaccurate history of Native nations and federal Indian law, and perpetuates the racism and violence that characterized the Removal Era. Ultimately, this Article seeks to counter future attacks on tribal sovereignty and combat the broader revival of long-rejected federalism arguments.

New Student Scholarship on Trust Land Acquisitions for Alaska Tribal Nations

Matthew L.M. Fletcher

Alexis Studler has posted “Reviving Indian Country: Expanding Alaska Native Villages’ Tribal Land Bases Through Fee-to-Trust Acquisitions,” forthcoming in the Michigan Journal of Race & Law, on SSRN. Here is the abstract:

For the last fifty years, the possibility of fee-to-trust acquisitions in Alaska has been precarious at best. This is largely due to the Alaska Native Claims Settlement Act of 1971 (ANCSA), which eschewed the traditional reservation system in favor of corporate land ownership and management. Despite its silence on trust acquisitions, ANCSA was and still is cited as the primary prohibition to trust acquisitions in Alaska. Essentially, ANCSA both reduced Indian Country in Alaska and prohibited any opportunities to create it, leaving Alaska Native Villages without the significant territorial jurisdiction afforded to Lower 48 tribes. However, recent policy changes from the Department of Interior reaffirmed the eligibility of trust acquisitions post-ANCSA and a proposed rule from the Bureau of Indian Affairs signals a favorable presumption of approval for Alaska Native fee-to-trust applications. This Note reviews the history and controversy of trust acquisitions in Alaska, and more importantly, it demonstrates the methods in which Alaska Native Villages may still acquire fee land for trust acquisitions after ANCSA.

New Student Scholarship on Circuit Split in Applicability of Federal Employment Laws to Tribes

Matthew L.M. Fletcher

Logan C. Hibbs has published “Not So Clear and Plain: Exploring the Circuit Split on the Applicability of Federal Labor & Employment Laws to Tribes” in the Oklahoma Law Review.

Not intended to critique the paper at all.

New Student Scholarship on Ecocide as Prosecutable Genocide

Matthew L.M. Fletcher

Abbey Koenning-Rutherford has published “Dishonoring the Earth: Ecocide as Prosecutable Genocide Against Indigenous People” in the Georgetown Law Journal. PDF

Here is the abstract:

Global Indigenous people exist as one with the environment, with no western binary between people and nature. Destruction of Indigenous people is reciprocal with environmental destruction. Indigenous people, though only six percent of the global population, protect eighty percent of the world’s biodiversity and occupy exceedingly environmentally vulnerable regions. Because of these reasons, the International Criminal Court (the “ICC”) could be utilized to achieve justice by prosecuting ecocide as genocide, should impacted Indigenous peoples choose to utilize it