Scholarship

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!!

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.