Scholarship

Blumm on Salmon and Climate Change

Matthew L.M. Fletcher

Michael C. Blumm has posted “Salmon, Climate Change, and the Future,” forthcoming in the Environmental Law Reporter, on SSRN.

Here is the abstract:

This article examines salmon law and policy in the context of ongoing climate change. The article examines the nature of the threats that climate change poses and will continue to pose for salmon recovery, as well as possible legal responses to combat these threats. It also considers the future prospects of Pacific salmon in a world that will include significant climate change and other threats to preserving and equitably apportioning the salmon resource, whose environmental sensitivity and expansive life cycle will continue to pose substantial challenges for the foreseeable future. The Article is excerpted from “Pacific Salmon Law and the Environment: Treaties, Endangered Species, Dam Removal, Climate Change, and Beyond” (ELI Press 2022).

New Scholarship on Tribal-State Tax Agreements

Matthew L.M. Fletcher

Pippa Browde has published “Sacrificing Sovereignty: How Tribal-State Tax Compacts Impact Economic Development in Indian Country” in the Hastings Law Journal (PDF).

Abstract:

Economic development is a critical component of tribal sovereignty. When a state asserts taxing authority within Indian Country, there is potential for overlapping, or juridical, taxation over the same transaction. Actual or even potential juridical taxation threatens economic development opportunities for tribes. For many years, tribes and states have entered into intergovernmental agreements called tax compacts to reduce or eliminate juridical taxation. Existing literature has done little more than mention tax compacts with cursory cost-benefit analyses of the agreements. This is the first Article to critically examine the role tax compacts serve in promoting tribes’ economic development.

This Article analyzes economic development activities in Indian Country as two types of transactions: when the tribe or tribal enterprise is engaging as a retailer, and when a tribe or tribal enterprise is working with non-tribal entities in joint ventures. Using these categories of transactions as a framework, and looking to existing compacts between various tribes and states as examples, the analysis focuses on the impact compacts have on economic development in Indian Country. This Article argues that compacts do not live up to the promise of resolving juridical taxation in a manner that fosters economic development opportunities for tribes.

Greg Bigler on Euchee Legal Traditions

Matthew L.M. Fletcher

Gregory Bigler has posted “7000 Dzo-Gaw-law (Ancestors)” on SSRN. Here is the abstract:

I read Stories from the Euchee Reservation on a plane. I read it cover to cover, I was as if emerging from a dream in which animals and humans understand one another and spirits come to visit over a cup of coffee.

Judge Bigler is a Euchee tribal citizen and a member of Polecat Ceremonial Grounds, a Harvard Law School graduate, longtime district court judge at the Muscogee (Creek) Nation. He co-counselled Indian law cases to the U.S. Supreme Court, mentored generations of Indian law attorneys, published law review articles.

Yet as Judge Bigler’s stories make clear, Indian people are keeping their traditions alive, listening to their chiefs, speaking Indigenous languages, and navigating contemporary circumstances: sending gossipy texts at the stomp grounds, wolf eating tofu in the forest, or teasing academics about their decolonizing methodologies. Shaw-jane, Mr. Rabbit, remains popular even after many years on the Indian story circuit.

This is a world, real life, for the people who keep the fire, the towns, the ballgames, and dances alive day in and day out, carrying out the ways of their people. These are cultural traditions handed down from generation to generation, suppressed for hundreds of years, still surviving today. Even if only with maybe a few hundred traditional practitioners.

The U.S. Supreme Court decided in the 2020 case of Jimcy McGirt v. State of Oklahoma that the Muscogee (Creek) Nation remains a reservation, “Indian Country” for purposes of federal criminal jurisdiction. The McGirt decision, means the Muscogee (Creek) Nation government has jurisdiction over a significant portion of northeast Oklahoma.

What law now applies in the reservation? Federal and tribal law, perhaps state law by agreement or statute? What is tribal law exactly? The United Nations Declaration on the Rights of Indigenous Peoples recognizes the right of tribes to exist as distinct peoples with their own “laws, customs, and traditions.” It recognizes their rights to maintain their religious sites, indigenous languages, sacred plants, traditional medicines – or as Natives put it, the Declaration recognizes the rights of Indigenous Peoples to maintain their “ways.”

The ways of the Muscogee and Euchee people are carried on at the stomp grounds. These ways can be understood as the laws, customs, and traditions of the Muscogee and Euchee people, are highly complex, deeply embedded, and alive. Following the directions of their chiefs, carrying out ceremonial rules, honoring the spirit world, maintaining peace and order, caring for children while teaching them proper ways of behavior, and so on. These laws, customs, and traditions, structure Euchee society in Stories from the Euchee Reservation. These laws are challenged by many things – the history of conquest and colonization, generations of social and economic deprivation, and the temptations of contemporary society – yet they remain alive to this day.

Tom Bell on the Catawba Special Economic Zone

Matthew L.M. Fletcher

Tom Bell has posted “The Catawba Digital Economic Zone: A Native American SEZ,” published in the Journal of Special Jurisdictions, on SSRN.

The abstract:

The Catawba Indian Nation recently announced the launch of a new kind of special economic zone (SEZ) on its reservation lands in the Carolinas piedmont region. The Catawba Digital Economic Zone (CDEZ) aims to provide “A Jurisdiction Built for the Fintech and Digital Asset Industry.” Federal and state law affirms that the Nation has original and exclusive jurisdiction over two categories of disputes: those arising from contracts to which the Nation or its members are a party and those arising under any civil code that the Nation issues for the conduct of businesses and individuals on its reservation. Together, these give the Nation sovereign authority over commerce, real or virtual, that takes place on Catawba lands. The Nation has invoked this power to create the CDEZ. The Catawba General Council, a democratic assembly of tribe members, recently enacted the a civil ordinance creating a legal framework specially designed to support e-banking, cryptocurrency, non-fungible tokens, and other fintech and digital asset industries. This paper, written by one of a team of coders who worked on it, describes the origins, legal foundation, and basic structure of the CDEZ, the latest and most advanced example of a special jurisdiction focused on digital assets.

Neoshia Roemer on Un-Erasing American Indians and the Indian Child Welfare Act from Family Law

Matthew L.M. Fletcher

Neoshia Roemer has posted “Un-Erasing American Indians and the Indian Child Welfare Act from Family Law,” forthcoming in the Family Law Quarterly, on SSRN.

Here is the abstract:

In 1978, Congress enacted the Indian Child Welfare Act (ICWA) as a remedial measure to correct centuries-old policies that removed Indian children from their families and tribal communities at alarming rates. Since 1978, courts presiding over child custody matters around the country have applied ICWA. Over the last few decades, state legislatures, along with tribal community partners and advocates, have drafted and enacted state ICWA laws that bolster the federal ICWA laws. Despite four decades of ICWA, trends in child welfare demonstrate that Indian children are still vastly overrepresented in the child welfare system. Because tribal communities, advocates, community partnerships, and scholars work tirelessly to both ensure and improve ICWA compliance, ICWA still provides some of the best outcomes for Indian children through both family reunification and/or placement within their tribal communities.
However, family law often minimizes or mischaracterizes what the Act does. While ICWA is a complex law and even an entire semester may not fully provide justice to the breadth of the Act, this characterization of ICWA creates a stigma around the law. Family law scholars and practitioners can no longer overlook ICWA in conversations and teachings. Stigmatizing ICWA in the classroom contributes to the erasure of American Indians from our society at large and from our classrooms. This allows legitimized racism against this community to seep into both the classroom and the practice area.
Accordingly, this article discusses how family law classrooms can incorporate ICWA into conversations on family law as a step in eliminating bias in the legal academy and in the profession against American Indians. This article describes some of the history around ICWA, how family law feeds into the erasure of American Indians in the legal field, some misconceptions about ICWA, and how we can tie ICWA and other issues impacting American Indians into our classroom teachings on family law.

Fletcher on the Dark Matter of Federal Indian Law

Matthew L.M. Fletcher

Please check out “The Dark Matter of Federal Indian Law: The Duty of Protection,” a draft of which is now available on SSRN.

Here is the abstract:

The United States and every federally recognized tribal nation originally entered into a sovereign-to-sovereign relationship highlighted by the duty of protection, a doctrine under international customary law in which a larger, stronger sovereign agrees to “protect” the small, weaker sovereign. The larger sovereign agrees to this duty of protection, in the American case anyway, in exchange for massive, occasionally unquantifiable amounts of land and resources, as well as the power to control the external sovereign relations of the protected sovereign. The smaller sovereigns, in this case, tribal nations, typically received protected reservation lands, hunting and fishing rights, small cash infusions, and the vague promise of protection.
What tribal nations have received so far in exchange for their lands and resources and sovereignty is a pittance compared to the value of that consideration. Justice Gorsuch noted in a recent case that tribal nations in Washington gave up millions of acres in exchange for “promises.” Those promises must mean something.
I call those promises the dark matter of federal Indian law.
The duty of protection owed by the United States to tribal nations is much like dark matter. The duty of protection was left undefined in Indian treaties. Yes, the treaties and other agreements that established a sovereign-to-sovereign relationship did provide for specific details about that relationship, most famously hunting and fishing rights or criminal jurisdiction. But most treaties and agreements are sparse, leaving open most of the details about that relationship. That’s the dark matter of Indian law.
This essay argues that the duty of protection between tribal nations and the federal government is law and that the judiciary has an obligation to enforce aspects of the duty of protection as understood by both tribal nations and Congress. The essay begins by describing the duty of protection as understood by tribal nations at the time of the origination of the duty and now. The essay then turns to how Congress and the Department of the Interior understands the duty of protection, at least since the start of the tribal self-determination era in the 1970s, and how the Department of Justice often undermines that understanding. Then, the essay explains that the dark matter of federal Indian law is the duty of protection, that the federal obligations to tribal nations and individual Indians is real, and that the duty of protection is enforceable. Finally, the essay shows how the United Nations Declaration of the Rights of Indigenous Peoples is a useful tool judges can use in adjudicating the scope of the unstated parts of the duty of protection.
This essay is an invited submission to the Maine Law Review Indian law symposium.

This paper was also the subject of the 2022 Rennard Strickland lecture at the University of Oregon Law School:

North Dakota Law Review Indian Law Issue

Matthew L.M. Fletcher

Here:

TRANSCRIPTS

97 N.D. L. Rev. 297
It Is More Than Just A Calculation: Reframing Child Support In Indian Country
– Sharon Thompson

97 N.D. L. Rev. 307
Tribal Jurisdiction Under The Second Montana Exception: Implications Of United States v. Cooley
– Timothy Q. Purdon

97 N.D. L. Rev. 319
Indian Law: Criminal Law Panel
– Panelists: Breanna Delorme, Marjorie Kohls, Joseph Vetsch
– Moderator: Michelle Rivard Parks 

97 N.D. L. Rev. 331
Creating Space For Indigenous People In Law
– Erica Thunder

ARTICLES

97 N.D. L. Rev. 343
New Federal Initiatives For Indian Country Environmental Management
– James M. Grijalva 

97 N.D. L. Rev. 355
The Extradition Clause and Indian Country
– Grant Christensen

Angela Riley on Indigenous Cultural Property Law

Matthew L.M. Fletcher

Angela R. Riley has published “The Ascension of Indigenous Cultural Property Law” in the Michigan Law Review.

Prof. Riley presenting the paper last fall at ASU.

Here is the abstract:

Indigenous Peoples across the world are calling on nation-states to “decolonize” laws, structures, and institutions that negatively impact them. Though the claims are broad based, there is a growing global emphasis on issues pertaining to Indigenous Peoples’ cultural property and the harms of cultural appropriation, with calls for redress increasingly framed in the language of human rights. Over the last decade, Native people have actively fought to defend their cultural property. The Navajo Nation sued Urban Outfitters to stop the sale of “Navajo panties,” the Quileute Tribe sought to enjoin Nordstrom’s marketing of “Quileute Chokers,” and the descendants of Tasunke Witko battled to end production of “Crazy Horse Malt Liquor.” And today, Indigenous Peoples are fighting to preserve sacred ceremonies and religious practices at places like Standing Rock, Oak Flat, and Bear’s Ears. Though the claims range from “lands to brands,” these conflicts are connected by a common thread: they are all contemporary examples of Indigenous Peoples’ efforts to protect their cultural property. As issues surrounding cultural property play out on the global stage, there is a parallel movement underway within Indigenous communities themselves. More than fifteen years ago, in 2005, I conducted a comprehensive study of tribal law to understand what American Indian tribes were doing to protect their own cultural property within tribal legal systems. Since my original study, the ground around issues of cultural preservation and Indigenous rights—including the 2007 adoption of the United Nations Declaration on the Rights of Indigenous Peoples, among others— have reignited interest in Indigenous Peoples’ own laws. Inspired by a convergence of global events impacting cultural rights, in 2020 and 2021, I set out to update my survey results and analyze the tribal cultural preservation systems and tribal laws of all 574 federally recognized American Indian tribes and Alaskan Native Villages in the United States. This Article reports those findings, situating the results in a human rights framework and leading to a core, central thesis: the data reveal a striking increase in the development of tribal cultural property laws, as Indian tribes seek to advance human and cultural rights in innovative and inspired ways. Indeed, in this Article, I contend we are witnessing a new jurisgenerative moment today in the cultural property arena, with tribal law already influencing decisionmakers at multiple ‘sites’—international, national, and subnational—in real time, with great potential for the future. To further demonstrate this phenomenon, I highlight the case study of the recent agreement to repatriate the Maaso Kova, a ceremonial deer head, from Sweden to the Yaqui peoples, and I also introduce several other examples where the seeds have been planted for the growth of the next jurisgenerative moment in Indigenous cultural property rights.

HIGHLY RECOMMENDED!!!!

Fletcher and Khalil on ICWA Preemption and Commandeering

Matthew L.M. Fletcher

Fletcher and Randall F. Khalil have published “Preemption, Commandeering, and the Indian Child Welfare Act” in the Wisconsin Law Review.

Blurb:

We argue that the anti-commandeering challenges against ICWA are unfounded because all provisions of ICWA provide a set of legal standards to be applied in states which validly and expressly preempt state law without unlawfully commandeering the states’ executive or legislative branches. Congress’s power to compel state courts to apply federal law is long established and beyond question.

Excerpt from Fletcher comic book about the Brackeen argument that no one may ever read.

Harvard Law Review Profiles of Denezpi and Ysleta del Sur Cases

Matthew L.M. Fletcher

Here is the profile of Denezpi v. United States.

Here is the profile of Ysleta del Sur Pueblo v. Texas.

Justice Story’s finger in the Harvard law school library.