Scholarship

American Indian Law Review Vol. 45, Issue 1

Matthew L.M. Fletcher

Here:

Vol. 45, No. 1 (2020-2021)

Front Pages   PDF

Article

ICWA’s Irony – Marcia Zug   PDF

Comments

The Secretary of the Interior Has the Authority to Take Land into Trust for Federally Recognized Alaska Tribes – Meghan O’Connor   PDF

“The Desert Is Our Home” – Kayla Molina   PDF

Notes

Coeur D’alene Tribe v. Hawks: Why Federal Courts Have the Power to Recognize and Enforce Tribal Court Judgments Against Nonmembers “Because of the Federal Government’s Unique Relationship with Indian Tribes” – Heath Albert   PDF

The Disproportionate Effect on Native American Women of Extending the Federal Involuntary Manslaughter Act to Include a Woman’s Conduct Against Her Child in Utero: United States v. Flute – Andie B. Netherland   PDF

Special Feature

Mirrored Harms: Unintended Consequences in the Grant of Tribal Court Jurisdiction over Non-Indian Abusers – Jonathan Riedel   PDF

Kristen Carpenter’s Book Review of McNally’s “Defending the Sacred” in the Harvard Law Review

Matthew L.M. Fletcher

Kristen A. Carpenter has published “Living The Sacred: Indigenous Peoples and Religious Freedom” in the Harvard Law Review, reviewing Michael McNally’s “Defend the Sacred: Native American Religious Freedom Beyond the First Amendment.”

New Scholarship on Substantial Burdens on Native Religious Exercise

Matthew L.M. Fletcher

Joel West Williams and Emily deLisle have posted “An ‘Unfulfilled, Hollow Promise’: Lyng, Navajo Nation, and the Substantial Burden on Native American Religious Practice,” forthcoming in the Ecology Law Quarterly, on SSRN. Here is the abstract:

Many Native American religious practices are linked to sacred sites – places in the natural world that have been used for ceremonies and rites since time immemorial. Often, particular ceremonies and rituals can only be performed at these locations. Many such sacred sites are located on what is, today, public land owned by federal government. The government has at times desecrated, destroyed, or barred access to sacred sites, rendering Native religious exercise extremely difficult or impossible.

The Religious Freedom Restoration Act (RFRA) was enacted to provide an alternative source of protection for religious exercise in the wake of Employment Division v. Smith’s restrictive interpretation of the Free Exercise Clause. RFRA provides that a government measure that “substantially burden[s]” a person’s exercise of religion will be subject to strict scrutiny. The statute has been successfully invoked by litigants against the government in a wide variety of cases. However, Native American litigants seeking protection for sacred sites located on public lands have been mostly unable to rely on RFRA’s protection. This is in large part because courts have mistakenly interpreted RFRA’s “substantial burden” requirement as incorporating Free Exercise jurisprudence, which has arbitrarily excluded most sacred sites claims from heightened scrutiny simply because the sites were located on public lands. Native Americans are thus denied the same level of religious free exercise that is enjoyed by other groups.

This article illustrates why this overly narrow interpretation of RFRA’s “substantial burden” requirement is erroneous. It demonstrates that courts, especially the Ninth Circuit, have construed “substantial burden” in a manner that is inconsistent with fundamental principles of statutory interpretation, with RFRA’s purpose, and with the Supreme Court’s own reasoning in recent cases including Burwell v. Hobby Lobby and Holt v. Hobbs. We highlight how courts applying this prevailing interpretation reach the absurd conclusion that government actions that erase sacred sites and destroy practitioners’ ability to worship do not constitute a “substantial burden” upon religious exercise.

The article then proposes an alternative textualist, plain-meaning understanding of RFRA’s substantial burden requirement which corrects these serious errors while requiring courts to appropriately weigh sacred sites claims against countervailing government interests – realizing RFRA’s promise of equal and meaningful religious freedom for Americans of all faiths.

New Scholarship Defending Non-Lawyer Judges and Advocates in Tribal Justice Systems

Matthew L.M. Fletcher

Judith M. Stinson, Tara Mospan, and Marnie Hodahkwen have posted “Trusting Tribal Courts: More Lawyers is Not Always the Answer” on SSRN. The paper is forthcoming in the Law Journal for Social Justice at ASU.

The abstract:

Many outsiders distrust tribal courts because they assume they will be treated unfairly. This distrust creates a number of problems, including decreasing the effectiveness of tribal judicial systems, inhibiting tribal economic development, and ultimately undermining tribal sovereignty. Critics of tribal courts assert three main justifications for their structural skepticism: first, that tribal courts are “different” from other court systems in the United States; second, that tribal laws and traditions seem foreign and may be difficult to access; and third, that because the qualifications for judges and practitioners in tribal courts sometimes differ from those in other courts, tribal judges and advocates are inferior. Drawing on other scholarship, this article briefly responds to the first two criticisms. This paper then argues that non-lawyer judges and lay advocates can be as effective as law-trained judges and advocates in other court systems. Although it is impossible to eliminate all outsider bias, refuting the claimed justifications should demonstrate that tribal courts are as fair and as competent as non-tribal courts. Therefore, greater confidence in tribal courts is warranted.

Ann Tweedy on Cathleen D. Cahill’s Study of Women of Color’s Contributions to the Suffragist Movement

Matthew L.M. Fletcher

Ann Tweedy has published “Uncovering the Little Known History of History of Suffragists of Color” in JOTWELL. The article reviews Cathleen D. Cahill, Recasting the Vote: How Women of Color Transformed the Suffrage Movement (2020).

The Regulatory Review [Penn.] Series: “Native Peoples, Tribal Sovereignty, and Regulation”

Matthew L.M. Fletcher

Here.

The description:

For the first time in U.S. history, a Native American will lead a cabinet-level department in the U.S. federal government. Secretary of the Interior Debra Haaland now heads the federal agency primarily responsible for coordinating the U.S. government’s complex regulatory relationships with Native Nations.

These relationships are predicated on tribal sovereignty—tribes’ inherent authority to “make their own laws and be governed by them.” Accordingly, the United States is obligated to promote tribal self-determination and tribes’ ability to provide for the health and welfare of tribal citizens within tribal lands. Yet despite its formal recognition of a certain degree of Native sovereignty, the federal government has also exercised significant control over tribal peoples and lands. Throughout U.S. history, federal administrative bodies, such as the U.S. Department of the Interior, have often failed to uphold the promises and obligations of sovereignty adequately.

In this series of essays, scholars and practitioners explore some of the most pressing regulatory issues affecting how Native American communities experience government and law, as well as how existing systems of power ignore and exclude Native peoples and governments.

The Regulatory Review is thrilled to feature this series of essays highlighting the effects that regulation has on Native individuals and communities. The series’ contributors include: Maggie Blackhawk, University of Pennsylvania Law School; Emily deLisle, University of Pennsylvania Law School; Katherine Florey, University of California, Davis School of Law; Dylan R. Hedden-Nicely, University of Idaho College of Law; Hillary M. Hoffmann, Vermont Law School; Aila Hoss, University of Tulsa College of Law; Sarah E. Krakoff, University of Colorado Law School; Elizabeth Kronk Warner, University of Utah S.J. Quinney College of Law; Sarah Roubidoux Lawson, Schwabe, Williamson & Wyatt PC; Robert J. Miller, Arizona State University Sandra Day O’Connor College of Law;  Monte Mills, University of Montana Alexander Blewett III School of Law; Megan Powell, First American Title Insurance Company;  Ezra Rosser, American University Washington College of Law; Joe Sexton, Galanda Broadman PLLC; Judith A. Shapiro, Big Fire Law & Policy Group;  Jessica A. Shoemaker, University of Nebraska College of Law; and Ann E. Tweedy, University of South Dakota School of Law.

Alex Skibine on Textualism and the Indian Canons of Statutory Construction

Matthew L.M. Fletcher

Alexander Tallchief Skibine has posted “Textualism and the Indian Canons of Statutory Construction,” forthcoming in the University of Michigan Journal of Law Reform, on SSRN.

Here is the abstract:

When interpreting statutes enacted for the benefit or regulation of Indians or construing treaties signed with Indian Nations, courts are supposed to apply any of five specific canons of construction relating to the field of Indian Affairs. Through an examination of the Supreme Court’s cases involving statutory or treaty interpretation relating to Indian nations since 1987, this Article demonstrates that the Court has generally been faithful in applying canons relating to treaty interpretation or abrogation. The Court has also respected the canon requiring unequivocal expression of congressional intent before finding an abrogation of tribal sovereign immunity. However, there are two other canons that the Court almost never applies. One requires clear intent to interfere with tribal sovereign rights, the other requires statutes to be construed liberally with ambiguities resolved to the benefit of Indians. After reviewing the possible reasons why textualist jurists might be opposed to the use of substantive canons, this Article makes two arguments to remedy any reluctance to use these two canons: First, these canons have constitutional roots and as such even textualists on the Court should not be reluctant to use them. Secondly, the canon applicable to abrogation of tribal sovereign immunity should also be applied to statutes interfering with tribal sovereign rights. There are no normative reasons to treat abrogation of sovereign immunity differently than other statutory interference with tribal sovereignty.

Highly recommended!

Christiana Ochoa on the Rights of Nature

Matthew L.M. Fletcher

Christiana Ochoa has posted “Nature’s Rights,” forthcoming in the Michigan Journal of Environmental & Administrative Law, on SSRN.

The abstract:

Do forests and rivers possess standing to sue? Do mountain ranges have substantive rights? A recent issue of The Judges’ Journal, a preeminent publication for American judges, alerts the bench, bar, and policymakers to the rapidly emerging “rights of nature,” predicting that state and federal courts will increasingly see claims asserting such rights. Within the United States, Tribal law has begun to legally recognize the rights of rivers, mountains, and other natural features. Several municipalities across the United States have also acted to recognize the rights of nature. United States courts have not yet addressed the issue, though in 2017, a Colorado District Court dismissed a suit claiming rights for the Colorado River ecosystem. Meanwhile, fourteen foreign countries have extended standing and substantive rights to nature, and that number is growing quickly. This international trend matters because U.S. Supreme Court Justices, including Sonia Sotomayor and Stephen Breyer, have argued that American courts should note and address cutting-edge legal developments in foreign jurisdictions.

This Article provides the key foundational and theoretical basis for recognizing the rights of nature. It explores the intellectual and precedential basis for accepting nature’s rights, surveying developments in the natural sciences, social sciences, and humanities, and providing the only comprehensive survey of all legal systems that currently recognize such rights. It traces the geographic, theoretical, and practical development of the idea of nature’s rights, illustrating that human thought regarding the intrinsic value and rights of nature has evolved significantly since our common law on the issue was established. This Article thus provides the intellectual, moral, and philosophical grounding for students, clerks, judges, and lawmakers facing questions about extending rights to nature.

Interesting New Scholarship on Cultural Linguistics and Treaty Language

Matthew L.M. Fletcher

Sammy Matsaw, Dylan Nicely-Hedden, and Barbara A. Cosens have posted “Cultural Linguistics and Treaty Language: A Modernized Approach to Interpreting Treaty Language to Capture the Tribe’s Understanding“, forthcoming in Environmental Law, on SSRN.

Here is the abstract:

Language is a reflection of a thought world. A worldview that has been shaped by place to describe one’s identity in space and time does not equate to species relatedness as a default to know one another. In the legal system of the United States, there is acknowledgement of treaties in colonized lands that there are rights granted from the tribes and not to them, and those rights are landbased. Yet, the Indigenous voice is dead before arrival, before it enters the room of science, justice, academe, or otherwise. The exclusion of Indigenous peoples at the table of knowledge and from the power to make decisions within their homelands has proven a detriment to the land, waterways, flora and fauna, and human beings. Nowhere would tribal peoples have agreed to our own destruction, it is and has been a forced hand. This Article explores the changing interpretation of the U.S. Supreme Court canon to construe treaties with Native American tribes as the tribe would have understood them, and why mere translation of Native language to English fails to capture a Native understanding. Through the juxtaposition of western legal analysis and the powerful voice of a Native scientist, this Article illustrates how difficult and yet how necessary it will be to bridge that divide if this powerful western nation is to fulfill its sacred promises to Native people. As a contribution to the Issue on the fiftieth anniversary of United States v. Oregon, this Article looks to the future of federal jurisprudence on the interpretation of treaties with American Indians and envisions one in which reconciliation through an understanding of different worldviews is possible.

Grant Christensen on Predicting Supreme Court Behavior in Indian Law Cases

Matthew L.M. Fletcher

Grant Christensen has published “Predicting Supreme Court Behavior in Indian Law Cases” in the Michigan Journal Race & Law. Here is the abstract:

This piece builds upon Matthew Fletcher’s call for additional empirical work in Indian law by creating a new dataset of Indian law opinions. The piece takes every Indian law case decided by the Supreme Court from the beginning of the Warren Court until the end of the 2019-2020 term. The scholarship first produces an Indian law scorecard that measures how often each Justice voted for the “pro- Indian” outcome. It then compares those results to the Justice’s political ideology to suggest that while there is a general trend that a more “liberal” Justice is more likely to favor the pro-Indian interest, that trend is generally weak with considerable variance from Justice to Justice. Finally, the article then creates a logistic regression model in order to try to predict whether a pro-Indian outcome is likely to prevail at the Court. It finds six potential variables to be statistically significant. It uses quantitative analysis to prove that the Indian interest is more likely to prevail when the Tribe is the appellant, when the issue is framed as a jurisdictional contest, and when the case arises from certain regions of the country. It suggests that Indian law advocates may use these insights to help influence litigation strategies in the future.

Recommended, not only because MJRL is a premier journal.