Scholarship

Jim Grijalva on the Gap in Indian Country Water Quality Protection

Matthew L.M. Fletcher

James Grijalva has posted “Ending the Interminable Gap in Indian Country Water Quality Protection,” forthcoming in the Harvard Environmental Law Review, on SSRN.

The abstract:

Tribal self-determination in modern environmental law holds the tantalizing prospect of translating Indigenous environmental value judgments into legally enforceable requirements of federal regulatory programs. Congress authorized this approach three decades ago, but few tribes have sought primacy even for foundational programs like Clean Water Act water quality standards, contributing to potentially serious environmental injustices. This article analyzes in detail EPA’s recent attempt at reducing tribal barriers — reinterpreting the Act as a congressional delegation of tribal jurisdiction over non-Indians — and the early indications its results are insignificant. The article then proposes an unconventional solution ostensibly at odds with tribal self-determination: promulgation of national, federal water quality standards for Indian country. EPA’s Indian Program actually began this way, as an interim step awaiting tribes’ assumption of federal regulatory programs. Thirty years later, the seemingly interminable regulatory gap in Indian country water quality protection remains, and EPA has a legal and moral responsibility to close it.

Paul Spruhan on COVID, Navajo, and Legal Responses

Matthew L.M. Fletcher

Here is “COVID-19 and Indian Country: A Legal Dispatch from the Navajo Nation,” from the Northwestern University Law Review blog.

Recent American Indian Law Scholarship

Matthew L.M. Fletcher

Michalyn Steele, Indigenous Resilience, Arizona Law Review

Christine Zuni Cruz, The Indigenous Decade in Review, SMU Law Review Forum

Samuel Lazerwitz, Note, Sovereignty-Affirming Subdelegations: Recognizing the Executive’s Ability to Delegate Authority and Affirm Inherent Tribal Powers, Stanford Law Review

Jessica L. Garcia, Historical Trauma and American Indian/Alaska Native Youth Mental Health Development and Delinquency (PDF)

Kenneth N. Hansen, Uncivil Rights: The Abuse of Tribal Sovereignty and the Termination of American Indian Tribal Citizenship, IAFOR Journal of Cultural Studies

Milan Kumar, American Indians and the Right to Vote: Why the Courts Are Not Enough, Boston College Law Review

Doug Kiel, Nation v. Municipality: Indigenous Land Recovery, Settler Resentment, and Taxation on the Oneida Reservation, NAIS: Native American and Indigenous Studies

Kent McNeil, The Louisiana Purchase: Indian and American Sovereignty in the Missouri Watershed, Western Historical Quarterly

Robert Miller, American Indian Sovereignty versus the United States, The Routledge Handbook of Critical Indigenous Studies

California Law Review Publishes “Politics, Indian Law, and the Constitution”

Matthew L.M. Fletcher

The article is here. PDF.

The abstract:

The question of whether Congress may create legal classifications based on Indian status under the Fifth Amendment’s Due Process Clause is reaching a critical point. Critics claim the Constitution allows no room to create race- or ancestry-based legal classifications. The critics are wrong.

When it comes to Indian affairs, the Constitution is not colorblind. I argue that, textually, the Indian Commerce Clause and Indians Not Taxed Clause serve as express authorization for Congress to create legal classifications based on Indian race and ancestry, so long as those classifications are not arbitrary, as the Supreme Court stated a century ago in United States v. Sandoval and more recently in Morton v. Mancari.

Should the Supreme Court reconsider those holdings, I suggest there are significant structural reasons as to why the judiciary should refrain from applying strict scrutiny review of congressional legal classifications. The reasons are rooted in the political question doctrine and the institutional incapacity of the judiciary. Who is an Indian is a deeply fraught question that judges have no special institutional capacity to assess.

New Research on COVID-19 Infection Rates in Indian Country

Matthew L.M. Fletcher

American Indian Reservations and COVID-19: Correlates of Early Infection Rates in the Pandemic

April 25, 2020 

The SARS-CoV-2 virus is causing widespread devastation as rates of coronavirus disease 2019 (COVID-19) grow across the world. The United States is experiencing one of the largest outbreaks with over half a million confirmed cases as of mid-April 2020. However, outbreaks on tribal lands are largely ignored by the federal government, mainstream media, and case tracking web sites. To reverse this erasure, Indian Country Today has collected cases for the Indian health system. As of April 10, the ICT database contained 861 COVID-19 cases in 287 tribal communities. Infections are growing across Indian Country, but very little is known about the relationship betweencommunity and household characteristics and the rate of COVID-19 spread on tribal lands. This is the question that ateam of Indigenous researchers at UCLA and the University of Arizona are actively working to answer.

This interdisciplinary team includes social demographer Desi Rodriguez-Lonebear, health services researcher Nicolás E.Barceló, economist Randall Akee, and public health researcher Stephanie R. Carroll. Merging the ICT data with the 2018 American Community Survey 5-Year records, they conducted multivariate analyses to identify relationships between the rates of COVID-19 cases per 1000 population and average reservation (or homelands) characteristics. 

The results show that by April 10, 2020, the rate of COVID-19 cases per 1000 people was more than four times higher for the populations residing on reservations than for the U.S. as a whole. COVID-19 cases were more likely to occur in tribal communities with a higher proportion of homes lacking indoor plumbing. COVID-19 cases were less likely to occur in tribal communities where households spoke English-only.

This research finds that failure to account for the lack of complete indoor plumbing and access to running water in a pandemic may be an important determinant of increased incidence of COVID-19 cases in tribal communities. Access to relevant information in Indigenous languages may play a key role in the spread of COVID-19 in some tribal communities. Previous studies have identified household plumbing, overcrowding, and language barriers as potential pandemic and disease infection risk factors. These risk factors persist. Specific actions must be taken now to provide potable water, and culturally-relevant information via community preferred media.Urgent funding to strengthen tribal public health and household infrastructure, as delineated in treaties and other agreements, isnecessary to protect American Indian communities from COVID-19 and future pandemics. This research has been accepted for publication at the Journal of Public Health Management and Practice.

Media Contact Information – Dr. Randall Akee (rakee@ucla.edu)

New Book: “The Cherokee Supreme Court 1823–1835”

Matthew L.M. Fletcher

From Carolina Academic Press, here (h/t Legal History Blog):

The Cherokee Supreme Court

1823–1835

by J. Matthew Martin

Forthcoming April 2020 • paper

ISBN 978-1-5310-1841-2
e-ISBN 978-1-5310-1842-9

Tags: Indian and Indigenous Peoples Law, Legal History, Regional Interest

The first legal history of the first tribal court upends long-held misconceptions about the origins of Westernized tribal jurisprudence. This book demonstrates how the Cherokee people—prior to their removal on the Trail of Tears—used their judicial system as an external exemplar of American legal values, while simultaneously deploying it as a bulwark for tribal culture and tradition in the face of massive societal pressure and change. Extensive case studies document the Cherokee Nation’s exercise of both criminal and civil jurisdiction over American citizens, the roles of women and language in the Supreme Court, and how the courts were used to regulate the slave trade among the Cherokees. Although long-known for its historical value, the legal significance of the Cherokee Supreme Court has not been explored until now

News Coverage of Efforts by Tribes to Self-Isolate in the Face of Pressure of Nonmembers to Enter Indian Lands

Matthew L.M. Fletcher

Al Jazeera: “As Native peoples self-isolate, outsiders are still demanding in”

CBS: “Longstanding issues put Native American communities at high COVID-19 risk”

Parker Pioneer: “A look at Montana v. U.S., the court case in CRIT’s ‘stay-at-home’ order“//”CRIT says Governor’s order doesn’t apply in Town of Parker, Tribal Council’s resolution does”

Parker Live: “CRIT Attorney General hits back at Town of Parker over COVID-19 orders”

ABC: “Isolated indigenous tribes risk extinction from coronavirus, experts say”

More ammo for the paper on the pandemic and Montana 2….

Harvard Law Review Profile of Native Hawaiian Land Restitution

Matthew L.M. Fletcher

The Harvard Law Review has published Developments in the Law — “Aloha ‘Āina: Native Hawaiian Land Restitution.”

An excerpt:

Mauna Kea is just one recent case in Hawaiian history that betrays a restitution claim. This Chapter argues that the lands of the Hawaiian Kingdom unjustly enriched the United States when the Kingdom was overthrown, and that the State of Hawai‘i benefited from the same when it was admitted into the Union. The wealth accrued due to the possession of this land has continued to unjustly enrich these governments. Courts should recognize a restitution remedy for Native Hawaiians seeking their rights to these lands.

Fletcher on the Pandemic and Tribal Powers over Nonmembers

Matthew L.M. Fletcher

I posted a draft paper, “Indian Lives Matter: Pandemics and Inherent Tribal Powers,” on SSRN.

Here is the introduction to the paper:

America’s reaction to the COVID-19 pandemic of 2020 is a microcosm of how Americans see the nation. It is a story of rugged individualism versus community needs. Many Americans insist on freedom to do as they please, rigorously pushing back on government. But in an environment where small numbers of individuals can easily transmit a deadly infection to others, creating the exponential increase in infections, rugged individualism is a terrible threat. Pandemics, luckily for humans, do not seem to occur all that frequently, but when they do occur, they can dramatically alter human history.

Indian people know all too well the impact of pandemics on human populations, having barely survived smallpox outbreaks and other diseases transmitted during the generations of early contact between themselves and Europeans. Indian people also suffered disproportionately from the last pandemic to hit the United States about a century ago. Some things have changed for the better for Indian people, namely tribal self-governance, but many things are not much better, including the public health situation of many Indian people.

Modern tribal governments navigate a tricky legal and political environment. While tribal governments have power to govern their own citizens, nonmembers are everywhere in Indian country, and the courts are skeptical of tribal authority over nonmembers. For example, after the Navajo Nation announced a 57-hour curfew for the weekend of April 10-13, 2020 (Easter weekend for many), the sheriff’s offices of Cibola and McKinley counties sent letters to the tribe insisting that the tribe refrain from citing nonmembers during the curfew, further insisting that nonmembers are governed more “fully” by the Governor of the State of New Mexico. Further, the fact that it is the county sheriff’s offices – and not counsel for the nonmembers – sending the letters is a deeply consequential signal to the tribal government. Of course, allowing nonmembers freedom to flout the tribe’s curfew defeats the purpose of the curfew. During a pandemic, the limitations on powers of tribal government could lead to tragedy.

This short essay is designed to lay down the argument favoring tribal regulatory powers over nonmembers in Indian country during a pandemic. It should be an easy argument, but federal Indian law makes it more complicated than it should be.

Here are some of the primary source documents noted in the paper:

Cibola county letter

McKinley County Sheriff Letter

The_Sacramento_Bee_Mon__Oct_28__1918_

Continue reading →