Scholarship – Page 2

Stephanie Safdi on Tribal Water Governance Beyond Indian Country

March 9, 2026Matthew L.M. Fletcher

Stephanie Safdi has posted “Indigenous Water Governance and the Clean Water Act” on SSRN. Here is the abstract:

Cultural lifeways for many Indigenous communities in the United States are intimately tied to water. Nationally, the Clean Water Act of 1972 is the principal framework for regulation of water quality. The core purpose of the Act is to ensure water quality—and, by extension, water quantity—sufficient to protect designated uses, including but extending beyond familiar fishable, swimmable, and drinkable uses. Though uses protected under the Act can be seen as expressions of social and ecological values, the cultural dimensions of these water uses have generally been underappreciated.

This paper excavates requirements and possibilities for Indigenous water governance under the Clean Water Act, centering on the work of the Act’s water quality standards provisions. Previous scholarship in this area has focused on Indigenous water governance within Tribal territorial jurisdiction—particularly through Tribal promulgation of on-reservation water quality standards under Treatment-as-a-State authority or federal gap-filling standards for Indian country. This paper extends this scholarship by looking to Indigenous water governance beyond Indian country. Doing so is imperative, as Tribal cultural, ceremonial, and subsistence practices involving water remain rooted in ancestral territories over which Tribes often do not exercise formal regulatory governance and which are increasingly imperiled by conflicts over water allocation under conditions of mounting scarcity. The failure to formally recognize Tribal cultural uses of ancestral waterways, both practically and in the law, continues to marginalize Tribes and Tribal water uses in decision-making over the nation’s waterways.

In this paper, I posit that the Clean Water Act contains important mechanisms to advance the exercise of Indigenous cultural sovereignty over ancestral waterways beyond the jurisdictional bounds of Indian country. These mechanisms include calibration of water quality standards to protect Tribes’ off-reservation reserved rights to aquatic resources and designation of Tribal cultural uses as uses to be protected through state and federal water quality standards for Tribes’ ancestral waterways, including through instream flow standards and other functional flow controls. Though these mechanisms are underappreciated aspects of Clean Water Act administration, there are strong arguments that protecting Tribal reserved rights and cultural uses is legally required in water quality standard-setting, as well as ethically and ecologically imperative. These also function as much-needed pathways toward meaningful co-governance of water resources and exercise of Traditional Ecological Knowledge in regulation of ancestral waterways in furtherance of cultural and ecological continuity.

New Student Scholarship on Tribal Courts’ Role in the Federalist Judicial System

March 2, 2026Matthew L.M. Fletcher

Sharon Nunn has published “Correcting Nevada v. Hicks: Recognizing Tribal Courts as Courts of General Subject-Matter Jurisdiction” in the Yale Law Journal.

Here is the abstract:

This Note challenges the Supreme Court’s conclusion in Nevada v. Hicks that tribal courts are not courts of general subject-matter jurisdiction. Tribal courts satisfy the definition of general subject-matter jurisdiction courts: they are primary courts created by nonfederal sovereigns to hear a broad range of cases under their laws. Unlike previous scholarship, this analysis does not premise jurisdiction on near-perfect parity between tribal and state sovereignty, but focuses instead on tribal courts’ function in our federalist system. Recognizing tribal courts as general-jurisdiction courts would affirm tribal sovereignty and enable tribes to hear federal claims critical to self-governance.

Suzan Shown Harjo, Vine Deloria, Sam Deloria, Oren Lyons, Joe de la Cruz

Tribal Law Journal Call for Papers

February 24, 2026February 24, 2026Matthew L.M. Fletcher

TLJ is inviting scholarly, practitioner, and student submissions addressing legal issues affecting tribal nations and their internal justice systems. Contributions may include tribal court case comments, reflections on tribal systems, the development of tribal law, the value of tribal law, interviews, and teachings. Submissions are due by August 31, 2026, and chosen work will be published by Spring 2027

New Student Scholarship on Rule 19, Tribal Immunity, and Indian Gaming Cases

February 23, 2026Matthew L.M. Fletcher

Marissa Uri has published “Rule 19 and Tribal Representation in Indian Gaming Litigation” in the Stanford Law Review.

Here is the abstract:

Since 1988, when Congress passed the Indian Gaming Regulatory Act (IGRA) into law, many Indian tribes have established gaming as a vital source of economic and political sovereignty. The process envisioned by IGRA, however, has allowed private actors to challenge tribal gaming operations by suing state and federal entities that negotiate the gaming operations with the tribes, rather than the tribes themselves. These third parties have succeeded in legal challenges enjoining tribal gaming without ever making the operating tribe a party to the suit.

Tribes, protected by the well-established doctrine of tribal sovereign immunity, frequently intervene in these suits under Rule 19, arguing that their inability to be joined necessitates dismissal of the case. An emerging disagreement among federal circuit courts underscores the procedural and practical difficulties that courts face in weighing these interests, particularly in assessing whether existing federal or state defendants can adequately represent absent tribal interests such that the case can proceed “in equity and good conscience.” This Note argues that consistent with the deference under Rule 19 case law accorded to other sovereigns, there should be a presumption of dismissal when tribes cannot be joined in discrete gaming challenges due to tribal sovereign immunity. In doing so, this Note examines Indian gaming challenges as a unique form of Administrative Procedure Act litigation and catalogs where federal, state, and tribal gaming interests diverge, underscoring why this divergence poses significant legal and practical threats to tribal sovereignty in a budding area of contemporary Indian law.

New Student Scholarship on Tribal Health Compacts and Medicaid

February 23, 2026Matthew L.M. Fletcher

Trudel Pare has published “Ensuring Sovereignty in Healthcare: A Comparison of Tribal Healthcare Compacts and Medicaid” in the Yale Law Journal.

Here is the abstract:

This Note examines federal-state and federal-tribe relationships through a comparison of Medicaid and the Indian Health Service (IHS). Analysis of tribal contracting and compacting documents and Medicaid state plans reflects the history of each program: Medicaid is a product of trusting federal-state collaboration, while the IHS reflects a history of distrust between tribes and executive-branch agencies in particular. This finding suggests that IHS compacting and contracting practices have significant lessons for Medicaid as the latter program negotiates with a hostile federal government.

New Student Scholarship on Indian Country Taxation Issues

February 20, 2026Matthew L.M. Fletcher

Crispin T. South has published “Let Them Be Tribal Members: Exempting Nonmember Resident Indians from State Taxes” in the Arizona State Law Journal. Here is the abstract:

Under McClanahan v. Arizona State Tax Commission, States are categorically preempted from taxing the income of an Indian who lives within his own Tribe’s reservation and gains his income from reservation sources. Later cases have distinguished McClanahan, holding that the income of Indians who live and work within a different Tribe’s reservation is generally taxable by the State. State income taxation of these non-member resident Indians poses a number of problems for individuals, Tribal governments, and tribal sovereignty as a whole. This Comment argues that to push back against these problems, Tribes ought to enter into membership reciprocity agreements that allow non-member resident Indians to become Tribal members, thus exempting them from state income taxes under McClanahan’s categorical rule.

Emiliana Almanza Lopez has published “Tribal Sovereignty, Sales Tax, and States Interference: Why Tax Compacts May Be the Best Way Forward” in the Minnesota Journal of Law & Inequality. Here is the abstract:

Tribes as sovereigns have the power of taxation. When states seek to impede this power by imposing their own taxes on non-member transactions on Reservations, Tribes must decide if imposing their own Tribal tax outweighs the risk of increased prices deterring business and business partnerships. This is the issue of double taxation. This Note investigates paths of remedy that address the burden of double taxation specific to sales taxes. Specifically, it looks at tax preemption, litigation, and policy. Preemption is difficult, and the existing case law framework on state tax preemption in Indian Country is complex, fact specific, and generally favors the state. Current federal policies fail to address this issue, and states are unlikely to preempt their own taxes without gaining something in return. Tribe-state tax compacts offer a compromise that releives some of the burden borne by Tribes, but also requires concessions. This Note argues that while imperfect, these tax compacts may be the best remedy to double taxation in Indian Country and offers suggestions for how these binding agreements between sovereigns can be used to enforce state respect for Tribal sovereignty.

2026 MLaw Indian Law Workshop: Bryan Newland and Kyle Whyte

February 18, 2026Matthew L.M. Fletcher

American Indian Law Review, Vol. 49, Issue 2

February 16, 2026Matthew L.M. Fletcher

Here:

Current Issue: Volume 49, Number 2 (2026)

PDF

Front Pages

New Student Scholarship on Rule 19 and Indian Gaming

February 9, 2026Matthew L.M. Fletcher

Melissa Uri has published “Rule 19 and Tribal Representation in Indian Gaming Litigation” in the Stanford Law Review.

Here is the abstract:

Since 1988, when Congress passed the Indian Gaming Regulatory Act (IGRA) into law, many Indian tribes have established gaming as a vital source of economic and political sovereignty. The process envisioned by IGRA, however, has allowed private actors to challenge tribal gaming operations by suing state and federal entities that negotiate the gaming operations with the tribes, rather than the tribes themselves. These third parties have succeeded in legal challenges enjoining tribal gaming without ever making the operating tribe a party to the suit.

Tribes, protected by the well-established doctrine of tribal sovereign immunity, frequently intervene in these suits under Rule 19, arguing that their inability to be joined necessitates dismissal of the case. An emerging disagreement among federal circuit courts underscores the procedural and practical difficulties that courts face in weighing these interests, particularly in assessing whether existing federal or state defendants can adequately represent absent tribal interests such that the case can proceed “in equity and good conscience.” This Note argues that consistent with the deference under Rule 19 case law accorded to other sovereigns, there should be a presumption of dismissal when tribes cannot be joined in discrete gaming challenges due to tribal sovereign immunity. In doing so, this Note examines Indian gaming challenges as a unique form of Administrative Procedure Act litigation and catalogs where federal, state, and tribal gaming interests diverge, underscoring why this divergence poses significant legal and practical threats to tribal sovereignty in a budding area of contemporary Indian law

Leeds, Phillips, and Bledsoe Downes on Implementing Tribal Data Sovereignty

February 9, 2026Matthew L.M. Fletcher

Stacy L. Leeds, Samantha Phillips, and Micayla Bledsoe Downes have published “Proactive Solutions in Implementing Tribal Digital Sovereignty” in The Journal of Community Informatics.

Here is the abstract:

This article argues that Tribal Nations must move rapidly from ad hoc digital practices to comprehensive legal and governance frameworks that fully implement Tribal Digital Sovereignty. Drawing on lessons from Indian gaming and other economic sectors, it shows how vendor-driven arrangements, weak contracts, and incomplete jurisdictional assertions have historically created long-term vulnerabilities around data, infrastructure, and regulatory authority. The article reframes digital systems—cloud services, health information technologies, broadband and spectrum, AI tools, and data-intensive enterprises—as core sites of sovereignty rather than as technical back-office functions. It contends that delays in regulating these domains allow external actors to harden jurisdictional and economic advantages that are difficult to unwind.

To provide practical guidance, the article proposes four interlocking “buckets” of legal infrastructure: Tribal codes and regulations that assert digital jurisdiction; contracts and agreements that safeguard data ownership, limit sovereignty waivers, and require portability; easements and infrastructure arrangements that preserve Tribal authority over physical and virtual networks; and business registration systems that capture entities operating digitally in Tribal territories. It situates these tools within Indigenous Data Sovereignty frameworks such as the CARE Principles and emerging Tribal AI governance efforts, including early government policies that embed cultural values and guard against data exfiltration. The article further emphasizes workforce development, procurement strategies, and collaborative regional or inter-Tribal models as necessary conditions for sustained digital self-governance. Taken together, these approaches aim to ensure that Tribal sovereignty is exercised as powerfully in digital spaces as in the governance of land, resources, and institutions.

Current Issue: Volume 49, Number 2 (2026)

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