Scholarship

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.

Fletcher on Tribal Customary Law and an Indigenous Canon of Construction

Matthew 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

Matthew 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.

Time for the Corned Indian again

Lauren van Schilfgaarde on Tribal Restorative Justice

Matthew 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.