Scholarship

Arizona State NDN Law Students Win National Writing Prizes + Publish in the ASU Law Journal

Matthew L.M. Fletcher

Here is the news item on the prizes. And here are the articles:

Noah Goldberg published “Indian Embryos as ‘Indian Children’?” in the Arizona State Law Journal (PDF). Here is an excerpt:

This Comment argues that ICWA protections should apply to human embryos in all states that reject pure property regimes for embryo disposition. Otherwise, personhood regimes would serve as an end-run around ICWA.34 Once personhood regimes treat embryos as persons or create rules implementing family law before the birth of a child, inevitable tensions arise with ICWA. Not applying ICWA protections to these regimes would undermine the spirit of ICWA and create an unacceptable legal loophole to circumvent the rights of tribes, Indian parents, and Indian children. However, ICWA would not have to apply at the embryo-disposition stage in states that adopt pure property regimes because future parental rights are not determined at the dissolution stage. Part II surveys ICWA, its purpose, and its protections. Part III explores the current state of embryo-disposition laws and focuses on the newly passed Arizona personhood disposition regime. Part IV analyzes how ICWA should interact with personhood regime states and examines the risks that personhood states pose to tribes, Indian families, and the spirit of ICWA. Part V concludes that the best way forward is to reject personhood regimes in favor of pure property regimes or stringently impose ICWA protections at the embryo-disposition stage in personhood states whenever substantive family law is adjudicated.

Claire Newfeld has published “Indian Boarding School Deaths and the Federal Tort Claims Act: A Route to a Remedy” in the Arizona State Law Journal (PDF).

An excerpt:

With such somber results expected from the American investigation, tribes deserve a remedy that will make them as close to whole as possible. There are several potential remedies that tribes and families can pursue, such as filing a lawsuit or lobbying for relief in Congress. The United States must listen to Native communities in determining what remedy will provide the most opportunity for healing and reparation. This Comment will attempt to contribute to that dialogue by arguing that, should the affected parties seek relief through litigation, they possess valid wrongful-death or negligence causes of action14 under the Federal Tort Claims Act (“FTCA” or “Act”).

Southwestern Law Review Indian Law Symposium

Matthew L.M. Fletcher

Here:

Southwestern Law Review Vol. 52, No. 2, Spring 2023

·        Table of Contents (PDF), https://www.swlaw.edu/sites/default/files/2023-08/52.2%20TOC_0.pdf

·        Foreword (PDF) Lloyd L. Lee, https://www.swlaw.edu/sites/default/files/2023-08/Article%201_Lee%20Foreword%20%28updated%29.pdf

·        Reflections on Place and People from Within (PDF) M. Alexander Pearl, https://www.swlaw.edu/sites/default/files/2023-08/Article%202_Pearl.pdf

·        Thoughts on A Nation Within’s Discussion of the Navajo Nation’s Water Rights (PDF) Adam Crepelle, https://www.swlaw.edu/sites/default/files/2023-08/Article%203_Crepelle.pdf

·        Tribal Self-Determination and A Nation Within (PDF) Angela R. Riley, https://www.swlaw.edu/sites/default/files/2023-08/Article%204_Riley.pdf

·        Ma’ii and Nanaboozhoo Fistfight in Heaven (PDF) Tamera Begay and Mathew L.M. Fletcher, https://www.swlaw.edu/sites/default/files/2023-08/Article%205_Begay%20%26%20Fletcher.pdf

·        Reform in the Fifth World (PDF) Jessica A. Shoemaker, https://www.swlaw.edu/sites/default/files/2023-08/Article%206_Shoemaker.pdf

·        The Reports of My Death Are Greatly Exaggerated: The Continued Vitality of Worcester v. Georgia (PDF) Dylan R. Hedden-Nicely, https://www.swlaw.edu/sites/default/files/2023-08/Article%207_Hedden-Nicely.pdf

·        The Nation Within: Prospects for an Indigenous Future (PDF) Wendy S. Greyeyes, https://www.swlaw.edu/sites/default/files/2023-08/Article%208_Greyeyes.pdf

· Afterword: With Gratitude (PDF) Ezra Rosser, https://www.swlaw.edu/sites/default/files/2023-08/Article%209_Rosser_Afterword.pdf

G. William Rice Memorial Scholarship Announcement

ilpc

2023 OBA ILS Bill Rice Scholarshp Flyer v.1

Multiple $2,000-$5,000 scholarships for law students intending to practice Indian law in Oklahoma. Applications due October 13th.

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.