Scholarship

Evan Burnick on a Canon Against Conquest

Matthew L.M. Fletcher

Evan D. Burnick has published “Canon Against Conquest” in the University of Illinois Law Review.

The abstract:

The interpretive rules that require judges to read treaties, statutes, and other legal texts in favor of Native nations and people have always been contested. But seldom has the future of the “Indian canon” seemed so uncertain. Several sitting Supreme Court Justices have questioned the legitimacy of the Indian canon, expressing skepticism about the roots of the specific rules that constitute it and raising doubts about whether “Congress has always framed statutes in a way that are favorable to Indian tribes.” Other Justices have written or joined opinions that have narrowed and diluted the Indian canon.

This Article maps the origins and development of the Indian canon and defends it on originalist and textualist grounds. It then contends that the canon should be codified to ensure its survival. This codification should be expressly grounded in a constitutional commitment to tribal sovereignty. Tribal sovereignty was part of the law of nations at the Founding; it was built into the original meaning and structure of the Constitution; and it persists today, in spite of state and federal efforts to extinguish it.

Codification is necessary because it is not enough to answer criticisms of the Indian canon from the standpoint of originalism, textualism, or any other methodology that holds sway on the Supreme Court. The canon has been diminished, disparaged, and nearly discarded by judges of a variety of methodological persuasions. Codification will increase the likelihood that the canon will be deployed to protect Native lands, governance, and culture. As an act of legislative constitutionalism, it will be at once entitled to respect and tailored to receive it.

Yale Center for Environmental Justice Report — “Tribal Co-Management of Federal Lands: Opportunities and Challenge”

Matthew L.M. Fletcher

Here.

Blurb:

The report, Tribal Co-Management of Federal Lands: Opportunities and Challenges, distills key findings from the 2023 Tribal Co-Management Symposium in Washington, D.C., by the Yale Center for Environmental Justice. It calls for urgent reforms to federal land management practices and outlines pathways for stronger Tribal participation in the stewardship of public lands. The report highlights that while federal consultation with Tribes is long-standing, it has too often been narrow in scope and limited in impact. Symposium participants emphasized the need for reforms that expand the role of Tribal Nations in shaping the stewardship of federal lands. Co-management represents not only environmental stewardship but also restorative justice. The report highlights how integrating Tribal knowledge with Western science strengthens conservation, while also supporting Tribal sovereignty, economic development, and cultural continuity.

Department of Justice Journal of Federal Law and Practice Special Issue — “Beyond the Reservation: Multijurisdictional Issues Affecting Tribal Communities”

Matthew L.M. Fletcher

Here.

TOC:

Introduction Leslie A. Hagen . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Achieving Public Safety Within Transboundary Tribes: Challenges and Paths Forward William K. Barquin, Elizabeth Thompson Tollefsbol, & Traci J. Whelan . . . . . . . . . . . . . . . . . . . . . . . . . . 5

The Violence Against Women Reauthorization Act of 2022 and the Return of Tribal Criminal Authority in Alaska Leslie A. Hagen & James V. DeBergh . . . . . . . . . . . . 19

The Department of Justice’s Role in Addressing the Incidence of Missing or Murdered Indigenous Persons Deidre Y. Aanstad . . . . . . . . . . . . . . . . . . . . . . . . 45

The “Categorical Approach” That Often Hinders Application of the Habitual Offender Statute, 18 U.S.C. § 117, to Violations of Tribal Law Robert A. Zauzmer . . . . . . . . . . . . . . . . . . . . . . . . 63

Maquiladoras, Indigenous Communities, and the Risk Posed by Traveling Sex Offenders in Two Border Cities Lori McPherson . . . . . . . . . . . . . . . . . . . . . . . . . . 79

The Tribal Warrants Loophole: The Washington Solution Michael Harder . . . . . . . . . . . . . . . . . . . . . . . . . . 91

Note from the Editor-in-Chief Christian A. Fisanick . . . . . . . . . . . . . . . . . . . . . . . 99

Getches, Wilkinson, Williams, Fletcher, Carpenter, and Singel’s Cases and Materials on Federal Indian Law, 8th Edition (Oct. 6, 2025)

Matthew L.M. Fletcher

Here.

The 8th Edition of the federal Indian law casebook covers recent updates in Supreme Court jurisprudence, as well as statutory and regulatory material. Major developments include the recovery of tribal jurisdiction through judicial decisions and legislative enactments, affirmation of the Indian Child Welfare Act, and law and policy addressing domestic violence in Indian Country and the epidemic of Missing and Murdered Indigenous People. The 8th Edition also considers efforts to secure treaty rights to water during an era of climate change and the fluctuating availability of funding for tribal operations amidst changing presidential administrations. 

The 8th Edition retains classic material on the history of federal Indian law and policy, including the medieval origins of the “Doctrine of Discovery,” and the shifting eras of Indian law leading to the present era of self-determination and human rights. The book covers the federal tribal relationship; tribal property rights, tribal sovereignty and jurisdiction; tribal justice systems, Indian religion and culture; water rights; treaty rights; rights of Alaska natives and native Hawaiians; and international and comparative legal perspectives, including the United Nations Declaration on the Rights of Indigenous Peoples.

Fletcher Commentary on Aaron Mills’ Work on Anishinaabe Law and Kinship

Matthew L.M. Fletcher

Here is “Indigenous Kinship as a Replacement for Tribal Citizenship Theory? Thoughts on the American Experience,” a blogpost for the American Journal of Comparative Law.

Prof. Mills’ original article can be found here.

John LaVelle on the Uses and Abuses of Johnson v. McIntosh by the Supreme Court

Matthew L.M. Fletcher

John LaVelle has published “Uses and Abuses of Johnson v. M’Intosh in Native American Land Rights Cases: Investigative Insights from the Indian Law Justice Files” in the Montana Law Review.

Here is the abstract:

The 200th anniversary of the foundational Indian law decision Johnson v. M’Intosh has come and gone, with many scholars contributing criticism and commentary. The dominant focus has been the case’s notorious embrace of the so-called “doctrine of discovery,” an odious theory for rationalizing European nations’ claims of superior rights to lands occupied by Indigenous Native American peoples. Commanding less attention, however, is the Johnson decision’s core protective legal feature, i.e., its reinforcing the United States government’s duty to guard against the alienation of Indian lands through private, unauthorized acquisitions.

This Article offers a somewhat different appraisal of Johnson v. M’Intosh in the context of controversies over Indigenous rights. Notwithstanding the case’s offensive dicta, the unanimous Johnson opinion retains efficacy in safeguarding Native American land rights, provided certain infamous abuses of the decision as precedent can be identified and rectified. Accordingly, this Article examines instances of the modern Supreme Court’s distorting and misusing Johnson v. M’Intosh to damage, weaken, or deny Indian land rights. In centering attention on this abuse, the Article draws on eye‑opening, seldom‑viewed documents found among the papers of Supreme Court Justices archived at the Library of Congress and various universities across the country. The Article also discusses a series of modern‑era opinions by Supreme Court Justices that exemplify instructive conformity to and reliance upon Johnson’s protective features. Moreover, as a response to the joint call for papers issued by the Montana Law Review and the Public Land & Resources Law Review, the Article does not take merely a rear‑view‑mirror look at Johnson v. M’Intosh. Rather, this Article aspires to cast light on judicial distortions and misrepresentations of Johnson to help illuminate a “Vision for the Future” in legal battles over Indigenous property rights.

An accompanying Compendium of Exhibits from the Papers of Supreme Court Justices is available here.

NYU Law Review Seeking Submissions

Matthew L.M. Fletcher

The NYU Law Review is open for Articles & Online Features. The submission guidelines and portals can be found here. Any questions about the submission process can be referred to NYULR‘s EIC, Yejin Chang (yejin@nyu.edu) and Senior Online Editor, Priya Prasad (nyulrevonline@gmail.com).

Robison on Native Nations and Water Compacts

Matthew L.M. Fletcher

Jason Robison has posted “Beyond Binary Co-Sovereignty: Native Nations & Water Compacts,” forthcoming in the Yale Law Journal, on SSRN.

Here is the abstract:

Former U.S. Supreme Court Justice Felix Frankfurter and former Harvard Law School Dean James Landis published in 1925 the seminal work on the U.S. Constitution’s Compact Clause. The article was, by definition, about co-sovereignty within the United States, though only in a binary sense. While shaping indelibly interstate and federal-state relations, North America’s original sovereigns, Native nations, were not visible within the influential piece. So, too, with the approximately two dozen compacts later formed to apportion water from rivers running across and along state lines, compacts acknowledging Native nations and their water (property) rights only at the margins, if at all. Revisiting Frankfurter and Landis’s seminal work exactly one century later, this Article advocates for moving beyond the binary conception of co-sovereignty apparent in that piece and entrenched in the suite of compacts created in its wake. Tracking Native nations’ growing calls for inclusion in transboundary water management, the Article advocates for these co-sovereigns to be respected as just that—sovereigns—and afforded opportunities for direct representation on compact commissions beside their state and federal counterparts. Food for thought is offered about potential forms and processes for this indigenization, all of which aim at the Article’s ultimate goal: further socializing and institutionalizing tripartite co-sovereignty.

New Scholarship Making the Case for Indigenous Self-Governance over Child Welfare in Canada

Matthew L.M. Fletcher

Ariana Kravetz has published “Rectifying Historical Wrongs: The Case for the Indigenous’ Inherent Right to Self–Govern Child Welfare in Canada” in the University of Miami Inter-American Law Review.

Furlong and Blumenthal on Tribal Authority over Nonmember Water Use

Matthew L.M. Fletcher

Wesley J. Furlong and Lori E. Blumenthal have published “Water Knows No Boundaries: Tribal Jurisdiction over Non-Indians’ Off-Reservation Conduct that Threatens On-Reservation Tribal Water Resources” in the Public Lands & Resources Law Review.

Here is the abstract:

This Article begins by discussing Manoomin and Sauk-Suiattle, orienting the reader to how these complicated jurisdictional issues have been addressed by Tribal courts. Next, this Article sets forth the current framework under Montana and Merrion for determining the extent of Tribal civil jurisdiction over non-Indians. Next, this Article examines the caselaw establishing Tribal Nations’ inherent sovereign authority to exercise civil jurisdiction over non-Indian activities and conduct occurring on-reservation that threaten or affect Tribal water resources and rights. Finally, this Article examines the caselaw that lays the groundwork for extending Tribal Nations’ civil jurisdiction over non-Indian activities and conduct occurring off-reservation that threaten or affect on-reservation Tribal water resources and rights.