Scholarship – Page 21

Fletcher on Tribal Customary Law and an Indigenous Canon of Construction

March 10, 2023Matthew L.M. Fletcher

Check out “The Three Lives of Mamengwaa: Toward an Indigenous Canon of Construction” on SSRN.

Abstract:

This paper will survey the history of tribal courts, which allows for an explanation for the reasons behind the relatively minimal impact tribal courts have had on Indian country governance, drawing on the work of Rob Porter. The paper will then turn to the monumental changes in tribal judiciaries and in tribal legal practice of the last few decades, which in turn allows for a discussion about several recent tribal court decisions that could signal a future where tribal courts play a far greater role in regulating Indian country governance through the application of customary law, drawing on the work of Wenona Singel. Finally, the paper offers preliminary thoughts on whether adding robust tribal judicial regulation to an already crowded field of Indian country governance is normatively beneficial. Short answer? Yes. Many of the intractable political disputes that plague tribal governance can be traced to the reliance by tribal governments on state and federal legal principles that are deeply flawed and have limited value in Indigenous contexts. I suggest the acknowledgment of an Indigenous Canon of Construction of tribal laws by tribal judiciaries that limit the impact of colonization on tribal nations.

Mills and Nie on the Past, Present, and Potential Future of Tribal Co-Management on Federal Public Lands

March 9, 2023Matthew L.M. Fletcher

Monte Mills and Martin Nie have posted “Bridges to a New Era: A Report on the Past, Present, and Potential Future of Tribal Co-Management on Federal Public Lands” on SSRN.

Here is the abstract:

Deep ancestral and traditional connections tie many Native Nations to the federal government’s public lands. The removal of these lands from indigenous control, their acquisition by the federal government, and the federal government’s approach to their management are largely premised upon the erasure or marginalization of those connections. Both physically and legally, Indian tribes have been removed from the landscapes they occupied since time immemorial. Rather than centering, honoring, and using those connections, the current discussion of tribal co-management of federal public lands is mostly bereft of this full legal and historical context.

Compounding these limitations is the considerable discretion enabled by the applicable legal framework and exercised by public land management agencies. This discretion is most often used in ways that place Indian tribes in a reactive and defensive position. Furthermore, in exercising that discretion, federal public land management agencies regularly disassociate their land management activities from their interactions with tribes, viewing the former as a priority and the latter as an additional burden or only ancillary to their mission. In order to reconnect the management of public lands to the broader legal and historical context, these agencies must be compelled—through statute or Executive action—to work with tribes on a co management basis, in the same manner as they are compelled to fulfill their other obligations and priorities in managing and protecting the lands for which they are responsible.

Furthermore, federal public land law generally provides to state governments and private interests broad powers and authorities not yet extended to Indian tribes. The intergovernmental dimensions of federal public lands management must more fully recognize the federal government’s fiduciary obligations to Indian tribes and include sovereign tribal governments. The common tools used in “cooperative federalism” can help inform the design of tribal co-management legislation and/or rulemaking.

Lauren van Schilfgaarde on Tribal Restorative Justice

March 8, 2023Matthew L.M. Fletcher

Lauren van Schilfgaarde has posted “Restorative Justice as Regenerative Tribal Jurisdiction,” forthcoming in the California Law Review, on SSRN. Here is the abstract:

For more than a century, the United States has sought to restrict Tribal governments’ powers over criminal law. These interventions have ranged from the imposition of federal jurisdiction over Indian country crimes to actively dismantling Tribal justice systems. Two particular moves – diminishing Tribal jurisdiction and imposing adversarial approaches on Tribal courts, respectively – have had particularly devastating impacts on Tribal justice and criminal governance systems. In the contemporary era, these developments have severely constrained Tribal approaches to criminal justice reform. Yet in recent years, we’ve begun to witness new trends at the Tribal level. Tribes are increasingly embracing Indigenous-based, restorative justice models, which have regenerated Tribal jurisdiction and enhanced the wellbeing of Tribal members. These trends are both important in their own right, and as an example of Indigenous anti-subordination in criminal justice reform. Indeed, for Tribes, the leading contemporary response to historical oppression is collective “self-determination.” True self-determination requires both internal and external legitimacy. As Tribes pursue freedom from settler-colonial constraints, this Article reveals how restorative justice offers opportunities to “Indigenize” Tribal systems while also reclaiming jurisdictional powers, for the benefit of Tribes and Tribal members, alike.

Highly recommended.

Ryan Stoa on the Tribal Cannabis Agriculture

March 8, 2023Matthew L.M. Fletcher

Ryan Stoa has posted “Tribal Cannabis Agriculture Law,” forthcoming in the Utah Law Review, on SSRN. Here is the abstract:

Indian tribes have some freedom to develop their own approach to cannabis agriculture, but what is the nature of that freedom, and how have tribes acted upon it? This Article investigates the current legal framework surrounding tribal cannabis agriculture and tribal participation in legal cannabis markets. It is generally believed that tribes have some freedom to determine the legality of cannabis cultivation on their lands, and to create rules and regulations governing that practice. However, this freedom is nascent and inconsistently granted by the federal government. In addition, the legal frameworks tribes are developing with respect to cannabis agriculture are still evolving and poorly understood, since each tribe is free to craft their own unique approach to the cannabis industry. This Article examines the current tribal cannabis agriculture landscape in several ways. First, a big-picture snapshot of the U.S. cannabis industry in 2023 is provided in order to place tribal cannabis policies in an appropriate context. Second, the Article attempts to discern the federal government’s opaque perspective on tribal cannabis law, including the contours of tribal freedom to self-regulate in this area. Third, the Article identifies trends and approaches to tribal cannabis agriculture that have emerged to date, with examples of cannabis policies from tribes around the country. Finally, a case study of the Hoopa Valley Tribe is presented in order to bring to life the legal complexities of this topic.

Student Note on the Exclusionary Rule and the Indian Civil Rights Act

March 5, 2023Matthew L.M. Fletcher

Seth E. Montgomery has published “ICRA’s Exclusionary Rule” in the Boston University Law Review.

The abstract:

The Fourth Amendment does not limit the actions of the 574 federally recognized Indian tribes. In an affront to tribal sovereignty, Congress enacted the Indian Civil Rights Act (“ICRA”) in 1968. The ICRA provides limitations on tribal governments that parallel the Bill of Rights. For example, the ICRA provides that no Indian tribe shall “violate the right of the people to be secure . . . against unreasonable search and seizures.”
But the ICRA—like the Fourth Amendment—does not state what happens when police obtain evidence from an unreasonable search or seizure and prosecutors seek to introduce that evidence in a criminal trial. Federal courts have developed an exclusionary rule for evidence obtained in violation of the Fourth Amendment: subject to myriad exceptions, if police obtain evidence unconstitutionally, then that evidence may not be introduced in a criminal trial. This Note asks whether the ICRA’s search-and-seizure provision incorporates such an exclusionary rule.
This Note advances an interpretation of the ICRA based on the statute’s 1968 meaning: the ICRA’s text compels an exclusionary rule, conditioned on deterring tribal police misconduct, but not subject to the myriad exceptions that apply in the Fourth Amendment context. And, with important qualifications, this Note explains why a court applying this interpretation should turn to tribal law. A deterrence-based exclusionary rule requires courts to consider whether exclusion deters police misconduct, how to measure the benefits of deterrence against the harms of excluding probative evidence, and how much deterrence is necessary for exclusion. Comity, self-determination, and federalism all compel deference to tribal law in answering these questions. Thus, tribal law can and should guide the application of the ICRA’s search-and-seizure provision in a criminal prosecution.
This Note contributes to the legal and academic landscape in three ways. First, it adds to an ever-growing body of literature advocating for federal and state deference to tribal law. Second, this Note fills a gap in the literature by addressing a remedy that the ICRA does not expressly provide—namely, exclusion. Most academics and courts describe federal habeas review as the ICRA’s only available remedy outside of tribal courts. Finally, this Note provides a roadmap for litigants arguing for or against a suppression motion based on an ICRA violation. Only a limited number of reported cases address whether the ICRA incorporates an exclusionary rule, and even fewer provide a full analysis. This Note thus answers an open question in a way that harmonizes constitutional criminal procedure with deference to tribal legal precedent.

New Book by Rebecca Webster: “In Defense of Sovereignty”

February 21, 2023Matthew L.M. Fletcher

You can buy it here.

Rebecca Webster. Photo credit, Stephanie Stevens.

New Student Scholarship on Tribal Courts and Environmental Tort Litigation

February 20, 2023Matthew L.M. Fletcher

Helia Bidad has published “The Power of Tribal Courts in Ongoing Environmental-Tort Litigation” in the Yale Law Journal. Here is the abstract:

Cities, counties, and states across the country are bringing environmental and climate tort suits to hold environmental tortfeasors accountable. These cases are commonly brought in state and federal court, but the possibility of bringing these suits in tribal courts has largely been left out of the discussion. In the wake of attacks on tribal sovereignty in the form of tribal jurisdiction stripping, this Essay uses an original empirical analysis of 308 cases to understand the circumstances in which tribal-court jurisdiction currently exists for tribal members to sue nonmembers for environmental torts in tribal court. This Essay makes recommendations for how to strategically bring these suits and highlights important considerations for tribal sovereignty.

Kristen Carpenter on Human Rights and Cultural Property

February 15, 2023Matthew L.M. Fletcher

Kristen A. Carpenter has posted “A Human Rights Approach to Cultural Property: Repatriating the Yaqui Maaso Kova,” forthcoming in the Cardozo Arts & Entertainment Law Journal, on SSRN. Here is the abstract:

Claims for repatriation of cultural property are emerging across the international community, with increasing attention to the inequities of acquisitions made during colonial periods. Yet the State-centric nature of legal instruments, such as the Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property of 1970, remains a stumbling block to advancing meaningful remedies for past harms, especially in the Indigenous Peoples’ context. States often pursue repatriation to advance national identity or replenish museum collections, but for Indigenous Peoples, repatriation often has to do with restoring dignity to ancestors through reburial, returning ceremonial objects to religious use, and healing the community from cultural assimilation and oppression. Against this backdrop, the essay reviews the recent case of the Yaqui People, an Indigenous nation spanning the U.S.-Mexico border, who negotiated a pathbreaking agreement to repatriate a sacred deer head, the Maaso Kova, from the national museums of Sweden. Working with the United Nations Expert Mechanism on the Rights of Indigenous Peoples, the parties expressly invoked the United Nations Declaration on the Rights of Indigenous Peoples, along with Yaqui and Swedish law, as bases for repatriation. The Yaqui-Sweden matter advances a human rights approach to repatriation that begins to transcend the hegemony of States in cultural property claims, while recognizing Indigenous Peoples’ equality and self-determination, along with religious and cultural freedoms.

Greg Ablavsky and Tanner Allread on How Indigenous Peoples Debated the U.S. Constitution

February 13, 2023Matthew L.M. Fletcher

Gregory Ablavsky and W. Tanner Allread have posted “We the (Native) People?: How Indigenous Peoples Debated the U.S. Constitution,” forthcoming in the Columbia Law Review, on SSRN.

Here is the abstract:

The Constitution was written in the name of the “People of the United States.” And yet, many of the nation’s actual people were excluded from the document’s drafting and ratification based on race, gender, and class. But these groups were far from silent. A more inclusive constitutional history might capture marginalized communities’ roles as actors, not just subjects, in constitutional debates.

This Article uses the tools of legal and Native history to examine how one such group, Indigenous peoples, argued about and with the U.S. Constitution. It analogizes Native engagement to some of the foundational frames of the “Founding” to underscore its significance for current constitutional discourse. Like their Anglo-American neighbors, Native peoples, too, had a prerevolutionary constitutional order—what we here dub the “diplomatic constitution”—that experienced a crisis during and after the Revolution. After the Constitution’s drafting, Native peoples engaged in their own version of the ratification debates. And then, in the early republic, Native peoples both invoked and critiqued the document as they faced Removal.

This Article’s most important contribution is proof of concept, illustrating what a more inclusive constitutional history might look like. Still, some of the payoffs are doctrinal: broadening the “public” in original public meaning, for instance. But the more significant stakes are theoretical. As this Article contends, by recognizing Indigenous law and constitutional interpretations as part of “our law”—in other words, the pre- and post-constitutional legal heritage of the United States—Native peoples can claim their role as co-creators of constitutional law.

Student Note on Native Voting Rights

February 9, 2023Matthew L.M. Fletcher

Noelle N. Wyman has published “Native Voting Power: Enhancing Tribal Sovereignty in Federal Elections” (PDF) in the Yale Law Journal. Here is the abstract:

Members of tribal nations are disproportionately burdened by barriers to voting, from strict voter identification and registration requirements to inadequate language assistance and inaccessible polling locations. Restrictive voting laws are on the rise, while the avenues for challenging them under the prevailing model of voting rights are narrowing. This Note advocates for a different approach to conceptualizing and combatting Native American voter suppression.

First, it advances a new jurisprudential theory centered on tribal sovereignty: suppressing the Native vote not only denies rights to individual citizens but also denies sovereign power to tribes. Historically, states required Native American people to renounce tribal membership, culture, and lands to vote. Today, states and localities continue to denigrate tribal sovereignty in the administration of elections, such as by rejecting tribal-issued IDs and interfering with tribes’ organization of their own political communities. Apart from securing the fundamental rights of individual Native citizens, Congress has a substantive duty to secure tribal sovereignty in federal election administration that is rooted in its trust obligation to tribes.

Second, this Note proposes a new legal framework for enhancing Native voting power: Congress should require states and local election officials to negotiate with federally recognized tribes toward the formation of tribal-state compacts governing federal election administration in Indian Country. This framework would relieve tribes of the burdens that they currently carry to initiate collaboration with local election officials, fill gaps in voter assistance, and challenge unlawful voting restrictions in court. Meanwhile, it would involve tribes in the process of lawmaking and regulation, enabling them to exert a measure of sovereign power over federal elections in Indian Country.