Scholarship

New Scholarship on AI and Indian Country

Matthew L.M. Fletcher

Adam Crepelle and Ilia Murtazashvili have posted “Artificial Intelligence on Indian Reservations in the United States: Prospects and Challenges” on SSRN. Here is the abstract:

Increases in computing power have contributed to tremendous improvements in Artificial Intelligence (AI). Despite increasing deployment of AI by public, private, and nonprofit organizations, consideration of AI on American Indian reservations remains in its infancy. In this paper, we suggest that consideration of Internet policy on tribal lands should be expanded beyond consideration of barriers to broadband access to include responsible adoption of emergent technologies, including AI. To facilitate such consideration, we consider the prospects and challenge for deployment of AI in public, private, and nonprofit applications on Indian reservations in the United States. Our particular focus is on how specific aspects of reservations offer unique opportunities as well as challenges for deployment of AI. We also argue that an important frontier in the Indigenous Data Sovereignty movement is to develop principles for responsible use of AI on reservations.

Of note, the paper asserts that AI might be especially useful for tribal courts: “Rightly or wrongly, people may have more confidence in AI than tribal judges.” OUCH.

DALL-E’s answer to “robot as tribal judge”

New Scholarship on the Canons, Proposing a New Canon

Matthew L.M. Fletcher

Evan D. Bernice has posted “Canon Against Conquest” on SSRN. Here is the abstract:

The interpretive rules that require judges to read treaties, statutes, and other legal texts in favor of Native nations and people have always been contested. But seldom has the future of the “Indian canon” seemed so uncertain. Several sitting Supreme Court Justices have questioned the legitimacy of the Indian canon, expressing skepticism about the roots of the specific rules that constitute it and raising doubts about whether “Congress has always framed statutes in a way that are favorable to Indian tribes.” Other Justices have written or joined opinions that have narrowed and diluted it.

This Article traces the origins of the Indian canon and defends it on originalist and textualist grounds. It then contends that the canon should be codified to ensure its survival. This codification should be expressly grounded in a constitutional commitment to tribal sovereignty. Tribal sovereignty was part of the law of nations at the Founding; it was built into the original meaning and structure of the Constitution; and it persists today, in spite of state and federal efforts to extinguish it.

Codification is necessary because it is not enough to answer criticisms of the Indian canon from the standpoint of originalism, textualism, or any other methodology that holds sway on the Supreme Court. The canon has been diminished, disparaged, and nearly discarded by judges of a variety of methodological persuasions. Codification will increase the likelihood that the canon will be deployed to protect Native lands, governance, and culture. As an act of legislative constitutionalism, it will be at once entitled to respect and tailored to receive it.

Maine Law Review Indian Law Symposium Issue

Matthew L.M. Fletcher

Here:

Articles

Symposium Keynote: “Isolation and Restraint: Maine’s Unique Status Outside Federal Indian Law”
Michael-Corey Francis Hinton

One Nation, Under Fraud: A Remonstrance
Hon. Donna M. Loring, Hon. Eric M. Mehnert, and Joseph G.E. Gousse Esq.

The Dark Matter of Federal Indian Law: The Duty of Protection
Matthew L.M. Fletcher

The Growing List of Reasons to Amend The Maine Indian Jurisdictional Agreement
Nicole Friederichs

Case Notes

Five Times More Likely: Haaland v. Brackeen and What It Could Mean for Maine Tribes
Eloise Melcher

Solemn Vow: Solum’s Originalism, Treaties, and Tribal Sovereignty in Castro-Huerta
Liam T. Sheridan

Nicholas Stamates on White Collar Crime in the City of Tulsa after McGirt and Castro-Huerta

Matthew L.M. Fletcher

Nicholas Stamates has posted “The Aftermath of McGirt and Castro-Huerta: Problems and Possible Solutions relating to White Collar Crime in the City of Tulsa,” recently published in the Texas Tech Law Review, on SSRN.

Here is the abstract:

The Supreme Court ruling in McGirt v. Oklahoma drastically changed the legal jurisdiction of most of the state of Oklahoma under federal law. In 2017 the 10th Circuit held in Murphy v. Royal that the Oklahoma Enabling Act of 1906 never disestablished the reservations of the Five Civilized Tribes and the Supreme Court would concur with that opinion in McGirt v. Oklahoma which means that the Major Crimes Act and other federal and tribal laws relating to Indians now apply in Eastern Oklahoma, including the City of Tulsa, and not Oklahoma law in applicable cases. In doing so, the Supreme Court inadvertently created a white-collar crime jurisdictional nightmare but one that has many solutions that enshrine tribal sovereignty and corporate responsibility among Tulsa based businesses. These solutions include state and tribal compacts, congressional legislation and proactive measures by Tulsa corporations such as “McGirt forms” that list Indian status of involved parties under federal law in case of a crime, choice of law provisions in contracts for civil suits in Tribal Courts so that corporations know what to expect and can shape the outcome of a case and working with local law schools so that new hires are prepared for the post McGirt and Castro-Huerta landscape.

Alexandra Fay on Criminal Jurisdiction and Federalism in Indian Country

Matthew L.M. Fletcher

Alexandra Fay has posted “Criminal Jurisdiction and Federalism in Indian Country” on SSRN.

Here is the abstract:

This Article examines criminal jurisdiction in Indian Country to describe tribal status in American federalism. In 2022, Congress and the Supreme Court altered the already byzantine scheme of criminal jurisdiction on tribal land through the Reauthorization of the Violence Against Women Act and Oklahoma v. Castro-Huerta, respectively. By instating both tribal and state jurisdiction over a common class of offenders without any structure for coordinating prosecutions, VAWA and Castro-Huerta have necessitated a new kind of inter-sovereign cooperation — in other words, a federalism problem.

To understand the import of these jurisdictional shifts, the Article traces the history of tribal criminal jurisdiction from the American War of Independence to the present. The national policies and decisions that shaped this record can be characterized by both a persistent distrust of tribal justice and an enduring recognition for tribal sovereignty. Given the historic antagonism between the subordinate sovereigns, namely states’ penchant for ignoring and undermining tribal governance, tribes have good reason to be wary of concurrent jurisdiction today.

At its heart, this Article is a study of federalism. It adapts existing theories of federalism to illuminate tribal political status and suggestions federalism values (e.g. innovation, local self-determination, minority empowerment) to guide tribal sovereigns’ continued integration into American constitutionalism. Ultimately, it presents a federalism argument for tribal sovereignty.

Fascinating New Scholarship on the “Wendigocene”

Matthew L.M. Fletcher

Jonelle Walker has published “Wendigocene: A Story of Hunger” with the Turtle Island Journal of Indigenous Health.

Highly recommended.

The abstract:

My mother once told me that if you speak about Wendigos out loud, they will come. They are cannibals, flesh eaters, spirit eaters. Wendigos survive by consuming the life of others without reciprocity, care, consent, or regard in the name of personal gain or profit. Growing up, I was taught that the Wendigo condition was something that you caught like a disease or that grew within yourself like a cancer. They were monsters, they were the closest thing we had to “human.” Afterall, according to the ideological lineages of Marxism, liberal Enlightenment, and settler colonialism, to be “human” is to be a monster, a capitalist, a cannibal. Each of these ideological lineages root the definition of the “human” in transcendence, defined by property, exhibited through man-made aesthetics rooted in capital, white supremacy, anti-Black racism, anti-Indigeneity, and a false human/nature divide. In this paper, I argue that the term “Anthropocene”, much like the “human” it centers, requires an ontological limiting that fails to encapsulate the fullness of Anishinaabe worlds, but most importantly Anishinaabe responsibility to each other. I offer a reframing from my positioning, where the last 500 years of apocalypses can be theorized through an analysis of the rise of the Wendigos. In conversation with other critiques of the well-problematized “Anthropocene,” this contribution offers a theoretical exploration of Wendigo theory to further support that the term “Anthropocene” is reflective of itself (Davis & Todd, 2017, p. 761-780). I suggest the term “Wendigocene” as an alternative to “Anthropocene” within the context of Anishinaabe communities for Indigenous theorists, as this reframing invokes a responsibility to care for our relations and exercise abolitionist legal praxes which are central to our sovereignty.

2023-2024 Teacher’s Memorandum for 7th Edition of Getches’ Federal Indian Law Casebook

Matthew L.M. Fletcher

Here.

Questions and comments directed to Fletcher.

Angelique EagleWoman on the Decolonization of Citation Practices in Scholarship

Matthew L.M. Fletcher

Angelique EagleWoman has posted “The Capitalization of ‘Tribal Nations’ and the Decolonization of Citation, Nomenclature, and Terminology in the United States,” recently published in the Mitchell Hamline Law Review, on SSRN. Here is the abstract:

Within the U.S. legal profession and field of law, words have consequences that are often detrimental to Native peoples in Native homelands. First, this Article will review the basics on the political status and proper understanding of Tribal Nations in the United States. This background will provide context for the analysis and examination of the colonizer language to follow. Next, this Article will examine the issues and consequences of the English language conventions of capitalization or terms referring to Tribal Nations in the United States. Specific issues with the legal style guides known as The AP Stylebook and The Chicago Manual of Style, and The Bluebook legal citation guide will be discussed for the perpetuation of language, citation, and nomenclature that casts Tribal Nations and peoples in an inferior status. Third, the Article will discuss the rationale for eliminating certain terms and phrases derogatory to Native peoples in the English language. Finally, the decolonization of legal terms, phrases, and citations will be connected to the larger issues of Tribal sovereignty, the Tribal Nations-U.S. relationship, and the self-determination of future generations of Native peoples of the Western Hemisphere.

Tribal Nations are nationalities and therefore, should be capitalized. Likewise, when the word “Tribes” relates to the Tribes in the United States, then the word is referring to nationalities and should be capitalized. Sister Tribal Nations in what is now known as Canada are referred to as the capitalized term, First Nations. There is no principled reason for the written standards in the United States to capitalize First Nations and not capitalize Tribal Nations and Tribes. The lack of capitalization in the United States for Tribal Nations, which have engaged in political diplomacy with the federal government, is a remnant of the colonizing disinformation from a bygone era.

Kristen Carpenter article on “Aspirations”: The United States and Indigenous Peoples’ Human Rights

Singel

This article, published in the Harvard Human Rights Journal, is available here.

Abstract

The United States has long positioned itself as a leader in global human rights. Yet, the United States lags curiously behind when it comes to the human rights of Indigenous Peoples. This recalcitrance is particularly apparent in diplomacy regarding the United Nations Declaration on the Rights of Indigenous Peoples. Adopted by the United Nations General Assembly in 2007, the Declaration affirms the rights of Indigenous Peoples to self-determination and equality, as well as religion, culture, land, health, family, and other aspects of human dignity necessary for individual life and collective survival. This instrument was advanced over several decades by Indigenous Peoples themselves as a means to remedy the harms of conquest and colonization, along with legacies of dispossession and discrimination persisting to this day. The United States first voted against the Declaration in 2007, and now, having reversed that position, is still stuck behind international organizations and governments that are working to implement it. The examples are myriad. From a new infrastructure at the UN to legislation in Canada, Mexico City, and the Muscogee (Creek) Nation, the world community is dedicating itself to realizing the aims of the Declaration. Not so the United States. In international meetings, U.S. representatives diminish the Declaration’s legal status when they could be embracing it as a vehicle for human rights advocacy; sharing best practices to and encouraging others to follow suit. At home, federal lawmakers are ignoring the calls of tribal governments to start implementing the Declaration in domestic law and policy. Increasingly, these positions of the United States are difficult to reconcile with respect for the dignity of Indigenous Peoples, much less global human rights leadership. Thus, it is time for the United States to abandon the notion that Indigenous Peoples’ human rights are “aspirational” and instead embrace the legal, political, and moral imperative to advance the Declaration both at home and abroad.

Fletcher Draft Paper: “Federal Indian Law as Method”

Matthew L.M. Fletcher

Please check out “Federal Indian Law as Method,” likely forthcoming in the University of Colorado Law Review. Here is the abstract:

This Essay is written in the shadow of a series of noxious attacks on core principles of federal Indian law, most notoriously Haaland v. Brackeen, a challenge to the constitutionality of the Indian Child Welfare Act (ICWA). The Supreme Court did not reach the merits of the equal protection challenges, but during oral argument, several judges expressed skepticism that Congressional Indian affairs enactments that grant privileges or preferences to Indian people could survive scrutiny under an equal protection analysis. Justice Kavanaugh, one of the judges most interested in the equal protection claims, wrote separately to highlight these issues, asserting that “the equal protection issue is serious.”
The parties siding with ICWA’s constitutionality argued to the Court that the Mancari case is a guide, whereas the opponents to ICWA’s constitutionality wanted to Court to ignore the case altogether. This Essay is a full-throated defense of the Mancari as a method of constitutional interpretation. Not only is the Mancari method correct, it is also the only justifiable method. This Essay proceeds with a short background on federal Indian law and its default interpretative rules. Next, the Essay surveys the application of and challenges to the Mancari method. Finally, the Essay concludes with a comparison of the methods proposed to replace or displace the Mancari method.
This Essay was prepared for the 31st Annual Rothgerber Symposium at Colorado Law School.