Scholarship

New Student Scholarship on Indian Country Criminal Sentencing

Matthew L.M. Fletcher

Nasrin Camilla Akbari has published “The Gladue Approach: Addressing Indigenous Overincarceration Through Sentencing Reform” in the NYU Law Review. PDF

Here is the abstract:

In the American criminal justice system, individuals from marginalized communi- ties routinely face longer terms and greater rates of incarceration compared to their nonmarginalized counterparts. Because the literature on mass incarceration and sentencing disparities has largely focused on the experiences of Black and Hispanic individuals, far less attention has been paid to the overincarceration of Native peo- ples. Yet there are clear indications that Native peoples are both overrepresented within the criminal justice system and subject to unique sentencing disparities as compared to other ethnicities. While these issues are partly motivated by traditional drivers of criminal behavior, including access barriers to housing, employment, and education, this Note argues that there is a greater systemic issue at play: the enduring legacy of colonialism. Accounting for—and correcting—this legacy in the criminal justice system is a complex task, though not an impossible one. For example, over the past twenty years, the Canadian criminal justice system has implemented a novel, remedial sentencing approach to address the overincarcera- tion of Aboriginal offenders: the Gladue approach. Recognizing the extent to which the Canadian legal system has failed to account for the unique needs, exper- iences, and circumstances of Aboriginal offenders, the Gladue approach mandates an individualized and contextualized approach to sentencing, one which prioritizes community-based alternatives to incarceration and emphasizes restorative justice. This Note proposes two legal pathways by which to transplant the Gladue approach to the American criminal justice system. In so doing, it offers the first comprehensive analysis of the normative and constitutional implications of applying the Gladue approach to the sentencing of Native peoples within the United States. While the approach has challenges and shortcomings, it is neverthe- less a powerful tool by which the American criminal justice system can begin to reckon with its colonial past and present.

The Whitney’s effort to get you to feel good about giving them zhoonya.

Michael McNally on Indian Sacred Sites

Matthew L.M. Fletcher

Michael D. McNally has published “The Sacred and the Profaned: Protection of Native American Sacred Places That Have Been Desecrated” in the California Law Review. PDF

Here is the abstract:

From Standing Rock to San Francisco Peaks, Native American efforts to protect threatened sacred places in court have been troubled by what this Article identifies as the profanation principle: a presumption that places already profaned or degraded by development or pollution can no longer be sufficiently sacred to Native peoples to merit protection. When the Supreme Court of Hawai’i rejected Native Hawaiian challenges to a massive new telescope on Mauna Kea because its summit was already developed, the sole dissenting justice termed it the “the degradation principle”: a view that because eleven telescopes had already despoiled the summit, the new telescope would cause no substantial adverse impacts on natural and cultural resources. This Article draws on religious studies training to show that, from the Ganges River to Jerusalem’s Western Wall, what makes the holy places of the world’s religions sacred seldom hinges on their natural purity. A presumption that Native American sacred places must be pristine to be authentically sacred is discriminatory, rooted in romanticized stereotypes of Native religions as nature piety rather than complex systems of obligation and relationship to sacred places. If the profanation principle seldom manifests as an explicit legal reason for an outcome, the Article demonstrates how consistently it plays out in cases under religious liberty, historic preservation, and environmental law. The Article suggests moving beyond the profanation principle, likening desecrated sacred places to sick relatives in need of healing and intensifying Native obligations to defend the sacred.

More Jaune Smith . . .

New Student Scholarship on Tribal Citizenship and Blood Quantum

Matthew L.M. Fletcher

Ashleigh Lussenden has published a Note, “Blood Quantum and the Ever-Tightening Chokehold on Tribal Citizenship: The Reproductive Justice Implications of Blood Quantum Requirements,” in the California Law Review. PDF

The abstract:

Blood often serves as the basis for identity for many groups in the United States. Native Americans, however, are the only population in which blood is a requirement for collective belonging and can be the determining factor for whether one receives tribal benefits and services. Many Tribal Nations use blood quantum, the percentage of Indian blood one has, as a bright-line rule to determine qualification for tribal membership. Initially established as a colonial tool of dispossession and assimilation, tribes adopted blood quantum to ensure the preservation of culture and community.

This Article contends that tribal adoption of blood quantum limits tribal members’ reproductive autonomy and violates the tenets of reproductive justice. Forcing tribal members to consider the blood quantum of their future children limits individual choice of partner and the manner in which tribal members choose to build their families. This limitation of autonomy and violation of reproductive justice principles is especially stark when analyzed in combination with contemporary pressures on Native conception and parenting, including urban migration, dysgenic environmental impacts on fertility, sexual violence, and inadequate, underfunded, and abusive reproductive healthcare. Collectively, these pressures decrease fertility, the number of available partners, and the ability for Native people to conceive and parent within their own communities.

By applying the principles of reproductive justice, Tribal Nations may begin to reassess what belonging means in Native communities and how tribal membership policies can support reproductive autonomy. The current rise of nation-building and concentrated push for self-determination in Native communities provides a unique opportunity to interrogate the priorities of tribal membership requirements and reimagine inclusion and collective belonging in Native Nations.

Bethany Berger on Intertribal Wildlife Orgs

Matthew L.M. Fletcher

Bethany Berger has posted “Intertribal: The Unheralded Element in Indigenous Wildlife Sovereignty,” forthcoming in the Harvard Environmental Law Review, on SSRN. Here is the abstract:

Intertribal organizations are a powerful and unheralded element behind recent gains in Indigenous wildlife sovereignty. Key to winning and implementing judicial and political victories, they have also helped tribal nations become powerful voices in wildlife and habitat conservation. Through case studies of these organizations and their impact, this article shows why intertribal wildlife organizations are necessary and influential, and how the intertribal form reflects a distinct relational approach to wildlife governance. As the first article focused on the intertribal form, moreover, the article also identifies an unexamined actor in tribal sovereignty and legal change.

Andrea Martin on ICWA and an Antiracist Child Welfare Policy

Matthew L.M. Fletcher

Andrea Martin has posted “Beyond Brackeen: Active Efforts Toward Antiracist Child Welfare Policy,” forthcoming in the Yale Law and Policy Journal, on SSRN. Here is the abstract:

Due to structural racism, legal protections afforded to families of children in the foster care system have been significantly eroded and continue to be challenged. As a result, families of color, who are disproportionately represented in the foster care system, do not receive the support needed to maintain or regain custody of their children and preserve their families.

The latest attempt to dismantle child welfare protections for a historically marginalized group was a prolonged attack on the Indian Child Welfare Act. In Haaland v. Brackeen, Indian adversaries reached the pinnacle of their incessant attack on the law’s heightened requirements to protect Indian children, families, and tribes. This Article shows that federal child welfare legislation once provided similar safeguards for non-Indian children, but those protections were eroded based on the racist ideology that many children in foster care would fare better if adopted by white families.

In 1978, Congress passed the Indian Child Welfare Act, requiring “active efforts” toward family preservation for Indian children and their families. Two years later, Congress passed similar legislation for non-Indian children, mandating the use of “reasonable efforts” toward enabling families to remain together. Although varying standards were used, both required high levels of involvement by social agencies in providing necessary resources to maintain families. This alignment and focus on family preservation significantly benefited groups and individuals subjected to systemic issues that intersect with the child welfare system including racism, poverty, and homelessness.

However, after twenty years, child welfare protections for non-Indian children were substantially reduced with the passage of the Adoption and Safe Families Act in 1997. Premised on racist assumptions that the disproportionately represented Black and brown parents of thousands of children in foster care were inherently unfit parents, this legislation reduced “reasonable efforts” to a negligible standard. Many families in the child welfare system no longer receive the level of services required to prevent unnecessary removals of their children or to regain custody of their children. This substantially affects African American children who are overrepresented in foster care.

On the other hand, child welfare protections for Indian children and their families remained constant for 45 years. Nevertheless, White foster families seeking to adopt Indian children ignored past discrimination against American Indian families, failed to acknowledge the importance of cultural preservation, and engaged in a concerted effort to dismantle the Indian Child Welfare Act. However, by accentuating the Act’s critical family preservation standards, its opponents fortuitously offered insight into how federal child welfare policies should be realigned to protect all children against unwarranted removals from their homes.

Regardless of the outcome of Brackeen, this Article urges Congress to bolster the level of remedial services offered to all families by requiring “active efforts” to prevent the removal of children from their homes and assist in family reunification. Employing a standard of “active efforts” would reestablish consistency in federal child welfare legislation, better serve families in foster care, and improve outcomes for all children. This standard comports with the new and developing American Law Institute’s Restatement of the Law, Children and the Law, which is “built on the understanding that the state’s goal is to assist parents” in providing adequate care for their children, “not to remove children from their homes if other assistance suffices.”

Adam Crepelle on an Intertribal Business Court

Matthew L.M. Fletcher

Interesting idea.

Adam Crepelle has published “An Intertribal Business Court” in the American Business Law Journal. Here is the abstract:

Few Indian reservations have any semblance of a private sector. Consequently, poverty and unemployment are major problems in much of Indian country. While there are many reasons why private enterprise is scarce in Indian country, one of the foremost reasons is businesses do not trust tribal courts. Businesses’ distrust of tribal courts is not unique as outsiders often fear bias in foreign tribunals. Similarly, businesses are often concerned about a court’s capacity to adjudicate complex disputes. Federal diversity jurisdiction was developed to allay fear of bias, and many states have developed business courts to address questions about court capacity. Tribes can overcome these issues by creating an intertribal business court (IBC). Tribes will be free to sculpt the IBC as they see fit. However, the IBC’s intertribal nature will help reduce fears of bias, and an IBC’s focus on business disputes will answer doubts about court capacity. An IBC will also make tribal law more accessible, further increasing confidence in this new tribunal. As businesses gain greater confidence in tribal legal institutions through the IBC, they will be more likely to operate in Indian country. Accordingly, the IBC could help to transform tribal economies.

Trevor Reed on Restorative Justice for Indigenous Culture

Matthew L.M. Fletcher

Trevor Reed has posted “Restorative Justice for Indigenous Culture,” forthcoming in the UCLA Law Review, on SSRN. Here is the abstract:

One still unresolved aspect of North American colonization arises out of the mass expropriation of Indigenous peoples’ cultural expressions to European-settler institutions and their publics. Researchers, artists, entrepreneurs, missionaries, and many others worked in partnership with major universities, museums, corporations, foundations, and other institutions to capture and exploit Indigenous cultural creativity, often in violation of Indigenous peoples’ laws, protocols, and standards of care. Much of this cultural material remains in Institutional repositories today, where it has been treated as the raw material for settler research, creativity, and innovation, circulating outside the control of the Indigenous communities who created it. These institutions must grapple with their legacies of intellectual and cultural abuse towards Indigenous peoples and emerging industry norms that increasingly demand respect for Indigenous rights, while continuing to make knowledge resources available and accessible to the public, to the extent allowed by law. Faced with these two seemingly incommensurable objectives, many institutions have begun to adopt cumbersome, generally unenforceable internal policies and procedures that tend to limit access to Indigenous culture as a remedy for past abuses rather than looking to Indigenous communities for guidance on methods for repair and redress. This Article advocates for a different approach – one which merges restorative justice theory and well-established methods for “Open Source” or “Creative Commons”-style licensing into what I call restorative licensing. I further advocate for the integration of privately ordered licensing structures within the restorative justice process to ensure Indigenous expectations for repair and redress are met, and that Indigenous cultural expressions can circulate once again on terms consistent with Indigenous law, protocol, and standards of care.

Indian Law Issue of the Journal of Appellate Practice and Process

Matthew L.M. Fletcher

Here:

The Journal of Appellate Practice and Process – Winter 2023 Issue Now Available

The Winter 2023 issue of The Journal of Appellate Practice and Process(Volume 22, Issue 1) is now available. This special issue focuses on appellate issues in and around Indian country. It features the following articles:

Grant Christensen on Article III Courts’ Power to Adjudicate Tribal Inherent Powers

Matthew L.M. Fletcher

Grant Christensen has posted “Article III and Indian Tribes,” forthcoming in the Minnesota Law Review, on SSRN.

Here is the abstract:

Among the most basic principles of our federal courts is that they are courts of limited jurisdiction, exercising only those powers delegated to them in Article III. In 1985 the Supreme Court inexplicably created an exception to this constitutional tenant, and unilaterally declared a plenary judicial power to review the exercise of an Indian tribe’s inherent sovereign authority. This exception is unmoored from all other Supreme Court precedent outside Indian law, and unjustifiably assumes the judicial power in direct contrast to the Court’s ordinarily thoughtful jurisprudence on Article III and deference to the separation of powers.

This article concludes that the Supreme Court was wrong in 1985 when it assumed a plenary judicial power over Indian affairs. The consequences are profound, and suggest a reconceptualization of the entire field of Indian law. Canon creating cases like Oliphant, Montana, and Cabazon should never have been decided because the exercise of a tribe’s inherent authority does not create a federal question conferring subject matter jurisdiction on the federal courts. The inherent power of Indian tribes to criminally prosecute or civilly regulate non-Indians in Indian country should not subject them to the judicially imposed limits set by the Supreme Court, because the Court lacks subject matter jurisdiction to decide those cases. Until a treaty or statute creates an affirmative basis for federal court review, an Indian tribe’s inherent powers are subject to the checks and balances imposed by tribal government and no others.

This has nothing to do with anything.

Velchik and Zhang — An Empirical Examination of Restoring Reservation Status in Oklahoma

Matthew L.M. Fletcher

Michael K. Velchik & Jeffery Y. Zhang have published “Restoring Indian Reservation Status: An Empirical Analysis” in the Yale Journal on Regulation. PDF

I posted about this excellent article a while back when it was in draft form.

This is not Oklahoma.