Scholarship

Kristen Carpenter article on “Aspirations”: The United States and Indigenous Peoples’ Human Rights

Singel

This article, published in the Harvard Human Rights Journal, is available here.

Abstract

The United States has long positioned itself as a leader in global human rights. Yet, the United States lags curiously behind when it comes to the human rights of Indigenous Peoples. This recalcitrance is particularly apparent in diplomacy regarding the United Nations Declaration on the Rights of Indigenous Peoples. Adopted by the United Nations General Assembly in 2007, the Declaration affirms the rights of Indigenous Peoples to self-determination and equality, as well as religion, culture, land, health, family, and other aspects of human dignity necessary for individual life and collective survival. This instrument was advanced over several decades by Indigenous Peoples themselves as a means to remedy the harms of conquest and colonization, along with legacies of dispossession and discrimination persisting to this day. The United States first voted against the Declaration in 2007, and now, having reversed that position, is still stuck behind international organizations and governments that are working to implement it. The examples are myriad. From a new infrastructure at the UN to legislation in Canada, Mexico City, and the Muscogee (Creek) Nation, the world community is dedicating itself to realizing the aims of the Declaration. Not so the United States. In international meetings, U.S. representatives diminish the Declaration’s legal status when they could be embracing it as a vehicle for human rights advocacy; sharing best practices to and encouraging others to follow suit. At home, federal lawmakers are ignoring the calls of tribal governments to start implementing the Declaration in domestic law and policy. Increasingly, these positions of the United States are difficult to reconcile with respect for the dignity of Indigenous Peoples, much less global human rights leadership. Thus, it is time for the United States to abandon the notion that Indigenous Peoples’ human rights are “aspirational” and instead embrace the legal, political, and moral imperative to advance the Declaration both at home and abroad.

Fletcher Draft Paper: “Federal Indian Law as Method”

Matthew L.M. Fletcher

Please check out “Federal Indian Law as Method,” likely forthcoming in the University of Colorado Law Review. Here is the abstract:

This Essay is written in the shadow of a series of noxious attacks on core principles of federal Indian law, most notoriously Haaland v. Brackeen, a challenge to the constitutionality of the Indian Child Welfare Act (ICWA). The Supreme Court did not reach the merits of the equal protection challenges, but during oral argument, several judges expressed skepticism that Congressional Indian affairs enactments that grant privileges or preferences to Indian people could survive scrutiny under an equal protection analysis. Justice Kavanaugh, one of the judges most interested in the equal protection claims, wrote separately to highlight these issues, asserting that “the equal protection issue is serious.”
The parties siding with ICWA’s constitutionality argued to the Court that the Mancari case is a guide, whereas the opponents to ICWA’s constitutionality wanted to Court to ignore the case altogether. This Essay is a full-throated defense of the Mancari as a method of constitutional interpretation. Not only is the Mancari method correct, it is also the only justifiable method. This Essay proceeds with a short background on federal Indian law and its default interpretative rules. Next, the Essay surveys the application of and challenges to the Mancari method. Finally, the Essay concludes with a comparison of the methods proposed to replace or displace the Mancari method.
This Essay was prepared for the 31st Annual Rothgerber Symposium at Colorado Law School.

Alex Pearl on ICWA in the Multiverse

Matthew L.M. Fletcher

M. Alexander Pearl has published “The Indian Child Welfare Act in the Multiverse” in the Michigan Law Review.

Michael Doran on the Implications of Oklahoma v. Castro-Huerta

Matthew L.M. Fletcher

Michael Doran has posted “Tribal Sovereignty Preempted,” forthcoming in the Brooklyn Law Review, on SSRN. Here is the abstract:

In June of 2022, the U.S. Supreme Court held in Oklahoma vs. 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 vs. 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 sees Castro-Huerta as a radical departure from first principles of federal Indian law, I argue that it is the natural – although deeply deplorable – next step in a long line of Supreme Court decisions expanding state governmental authority within Indian country. Additionally, this line mirrors a separate line restricting tribal governmental authority within Indian country. Through a critical examination of these decisions, I show how the Supreme Court over the last half century has systematically privileged state interests and the interests of individual non-Indians over tribal interests and that, in so doing, the Court has arrogated to itself the political function of defining tribal sovereignty. I argue that Congress should reject the Court’s relentless subordination of Indian interests to non-Indian interests and reassert its role in defining and defending a robust conception of tribal sovereignty.

New Anishinaabe Student Scholarship on International Atrocity Crimes and Canadian Boarding Schools

Matthew L.M. Fletcher

Alyssa Couchie has published “ReBraiding Frayed Sweetgrass for Niijaansinaanik: Understanding Canadian Indigenous Child Welfare Issues as International Atrocity Crimes” in the Michigan Journal of International Law.

Here is the abstract:

The unearthing of the remains of Indigenous children on the sites of former Indian Residential Schools (“IRS”) in Canada has focused greater attention on anti-Indigenous atrocity violence in the country. While such increased attention, combined with recent efforts at redressing associated harms, represents a step forward in terms of recognizing and addressing the harms caused to Indigenous peoples through the settler-colonial process in Canada, this note expresses concern that the dominant framings of anti-Indigenous atrocity violence remain myopically focused on an overly narrow subset of harms and forms of violence, especially those committed at IRSs. It does so by utilizing a process-based understanding of atrocity and genocide that helps draw connections between familiar, highly visible, and less recognized forms of atrocity violence, which tend to be overlapping and mutually reinforcing in terms of their destructive effects. This process-based understanding challenges the neocolonial, racist, and discriminatory attitudes reflected in the drafting and interpretation of the Genocide Convention and other atrocity laws that ignore the lived experiences of subjugated groups. Utilizing this approach, this note argues that, as applied to Indigenous populations, Canada’s longstanding discriminatory child welfare practices and policies represent an overlooked process of anti-Indigenous atrocity violence. Only by understanding current child welfare challenges facing Indigenous communities as interwoven with longstanding anti-Indigenous atrocity processes, such as the IRS system, can we understand what is at stake for affected communities and fashion appropriate remedies in international and domestic law.

New Scholarship on #LandBack and Federal Public Lands

Matthew L.M. Fletcher

Audrey Glendenning, Martin Nie & Monte Mills have published “Some Land Back: The Transfer of Federal Public Lands to Indian Tribes since 1970” in the Natural Resources Journal.

The abstract:

Federal public lands in the United States were carved from the territories of Native Nations and, in nearly every instance, required that the United States extinguish pre-existing aboriginal title. Following acquisition of these lands, the federal government pursued various strategies for them, including disposal to states and private parties, managing lands to allow for multiple uses, and conservation or protection. After over a century of such varied approaches, the modern public landscape is a complex milieu of public and private interests, laws and policies, and patchwork ownership patterns. This complexity depends on—and begins with—the history of Indigenous dispossession but subsequent developments have created additional layers of complication. Recently, a broad social movement, captured succinctly by the social media hashtag “#Landback” and including some American Indian tribes, has begun calling for the restoration of the nation’s lands to Native ownership, including the transfer of all public lands to tribal hands. This article aims to contextualize and assess the more recent history of the transfer of federal public lands to Indian tribes, which has often taken the form of the United States transferring such lands into trust ownership for the benefit of a particular tribe. The article is the first comprehensive collection and analysis of 44 statutes enacted by Congress from 1970 to 2020 that transfer ownership interests in public lands to federally-recognized Indian tribes. These statutes are bookended by the return of Blue Lake to Taos Pueblo in New Mexico (1970) and the return of the National Bison Range to the Confederated Salish and Kootenai Tribes in Montana (2020). Analysis of these laws surfaces common themes and provisions related to the political dynamics of such congressional actions and the terms of post-transfer tribal or federal management. In particular, the article relies on four primary case studies to provide background, context, and detail in illustrating these themes : (1) Blue Lake on the Carson National Forest to Taos Pueblo, (2) the Western Oregon Tribal Fairness Act, (3) Chippewa National Forest land to the Leech Lake Band of Ojibwe in Minnesota, and (4) the National Bison Range to the Confederated Salish and Kootenai Tribes in Montana. These examples are representative of the larger catalog of transfer statutes and demonstrate the variation and complexity associated with each individual transfer situation. Hopefully, this first-ever collection of these laws will provide a practical grounding and depth of understanding for those considering or advocating for “#Landback.” More broadly, these examples and the common themes that tie them together raise important questions about the historical and continuing patterns of public land ownership and control.

Tribal Law Journal Vol. 22

Matthew L.M. Fletcher

Here:

Professional Articles

Tomasz G. Smolinski, A Proposal for a Model Indigenous Intellectual Property Protection Tribal Code (MIIPPTC), 22 Tribal L.J. 3 (2023).

Dustin Jansen, The Role of United States v. Cooley and McGirt v. Oklahoma in Determining Criminal Jurisdiction in Indian Country, 22 Tribal L.J. 30 (2023).

Wesley James Furlong, “Subsistence is Cultural Survival”: Examining the Cultural and Legal Framework for the Recognition and Protection of Traditional Cultural Landscapes within the National Historic Preservation Act, 22 Tribal L.J. 51 (2023).

Student Articles

Noah Allaire, Experiments in Legal Hybridity: From Indian Tort Law to Tribal Tort Law, 22 Tribal L.J. 122 (2023).

Alejandro Alvarado, Tribes and H-1Bs: A Call to Reconcile U.S. Immigration Policy and Tribal Governments Through Employment-Based Visas, 22 Tribal L.J. 151 (2023).

Micah S. McNeil, Traditional Tlingit Law and Governance and Contemporary Sealaska Corporate Governance: Four Core Values and a Jurisprudence of Transformation, 22 Tribal L.J. 168 (2023).

Jaune Smith

New Scholarship on Air Regulation in Indian Country

Matthew L.M. Fletcher

Jonathan Skinner-Thompson has posted “Tribal Air,” forthcoming in the Arizona State Law Journal, on SSRN. Here is the abstract:

Prevailing approaches to addressing environmental justice in Indian Country are inadequate. The dual pursuits of distributive and procedural justice do not fully account for the unique factors that make Indigenous environmental justice distinct—namely, the sovereign status of tribal nations and the ongoing impacts of colonization.

This article synthetizes interdisciplinary approaches to theorizing Indigenous environmental justice and proposes a framework to aid environmental law scholars and advocates. Specifically, by centering Indigenous environmental justice in terms of coloniality and self-determination, this framework can better critique and improve environmental governance regimes when it comes to pollution in Indian Country.

This article tests that framework on air regulation in Indian Country. Although many consider the Clean Air Act a regulatory success story, air pollution still disproportionately harms American Indians and Alaska Natives. To that end, Tribal Air offers a comprehensive account of air regulation in Indian Country, including a more detailed analysis of tribal air quality laws. It then applies theories of settler colonialism and instruments of self-determination to the implementation of the Clean Air Act in Indian Country. Together these concepts aspire towards an anti-colonialist purpose and offer important ways to achieve Indigenous environmental justice.

Richard Pomp on Dilworth and Indian Taxation

Matthew L.M. Fletcher

Richard Pomp has published “Overturning Dilworth and the Impact on Tribes” in the May 29, 2023 edition of Tax Notes:

dilworth and the tribes.pdfDownload

An excerpt: “The tribes in states with vendor-based sales taxes should be alert to this impending problem should the Court deny a review of the case. To be forewarned is to be forearmed.”

Kronk Warner and Lillquist on Tribes and Rights of Nature

Matthew L.M. Fletcher

Elizabeth Ann Kronk Warner and Jensen Lillquist have posted “Laboratories of the Future: Tribes and Rights of Nature,” published in California Law Review, on SSRN. Here is the abstract:

From global challenges such as climate change and mass extinction, to local challenges such as toxic spills and undrinkable water, environmental degradation and the impairment of Earth systems are well documented. Yet, despite this reality, the U.S. federal government has done little in the last thirty years to provide a comprehensive solution to these profound environmental challenges; likewise, significant state action is lacking. In this vacuum, environmental legal advocates are looking for innovative environmental solutions to these challenges. Against this backdrop, rights of nature have increasingly gained traction as a possible legal tool to help protect the natural environment from the harms perpetrated by humans. Rights of nature laws generally have two elements: (1) legal personhood for natural entities, such that nature has standing in court, and (2) substantive rights for natural entities. This Article explores the scope and origins of rights of nature and examines how they are being implemented both within the United States and abroad. It highlights the work being done by Tribes and Indigenous Peoples in this space and argues that, particularly in the United States, state and local governments should learn from this work. Specifically, the work of Tribes in this space can serve as alternative ethical paradigms and laws for non-Native communities looking for an alternative to the status quo. In the United States, Tribes can serve as “laboratories” for environmental change given their tribal sovereignty and environmental ethics. In addition, Tribes exist within a different legal framework from U.S. states and municipalities. By comparing rights of nature-related litigation in Florida and in the White Earth Nation of Ojibwe, it becomes clear that rights of nature provisions adopted by Tribes stand a greater chance of withstanding legal challenge than provisions adopted by municipalities. Accordingly, environmental reform can benefit from the collaboration and experimentation of Tribes.

Jaune Smith