Scholarship

Kekek Stark on Tribal Law Interpretations of the Indian Civil Rights Act

Matthew L.M. Fletcher

Kekek Stark has posted “The Utmost Rights and Interests of the Indians: Tribal Law Interpretations of the Indian Civil Rights Act” on SSRN.

Highly recommended.

Here is the abstract:

It has been more than fifty years since Congress enacted the Indian Civil Right Act (hereinafter “ICRA”) and more than forty years since the United States Supreme Court in Martinez articulated that the tribal courts are the proper forum for the adjudication of ICRA claims. In the decades since, tribal courts have developed a rich body of intertribal common law pertaining to the implementation of the ICRA. This comes after over a century of assimilative policies in which the federal government attempted to eradicate native culture and traditions and subjected Indians to the deprivation of individual rights by federal and state judicial systems.So how are tribes doing in the implementation of the ICRA? Specifically, how are tribal courts balancing the promotion of tribal sovereignty with the protection of individual rights? Does the ICRA establish a mandate to tribal governments to assume and require judicial review of any allegedly illegal action by a tribal government? Can a Tribe accused of violating these primary rights also be the judge of its own actions and at same the time comply with federal law? This article will examine these questions in detail. In doing so, Part I provides a brief introduction. Part II details the implementation of individual rights protections prior to the enactment of the ICRA. Part III provides an overview of the passage of the ICRA. Part IV examines federal court encroachment into tribal court determinations of individual rights protections. Part V provides an overview of the ruling in Martinez. Part VI details tribal court interpretations of the ICRA associated with tribal sovereign immunity, tribal council actions, equal protection, due process, and criminal protections. Part VII concludes by offering recommendations for tribal courts in their ongoing review of the ICRA. 

Tribal Law Journal, Volume 25 (2025)

Matthew L.M. Fletcher

Here:

Articles

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SELF-DETERMINATION IN THE IMPLEMENTATION OF TREATY RESERVED RIGHTS
Kekek Jason Stark

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Don’t Throw the Book: Customary Tribal Laws Can Heal Rather Than Punish Addiction
Coleman Griffith

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Fulfilling an Obligated Duty to the Diné by Incorporating and Defining a Core Principle, Tó’eí’iiná até (Water Is Life) into the Navajo Nation Tribal Water Code: Making a Connection to the Diné in the “Checkerboard” Area.
M. Tyanne Benallie

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Stop Killing the Klamath: Rights of Nature Protections with Tribal Law, the National Historic Preservation Act, and Collaborative Management Strategies for a Tribe on the Front Lines of Climate Change
Juliette A. Jackson

New Student Scholarship on Federal Indian Law and Legal Geography

Matthew L.M. Fletcher

Erica Liu has published “The Cartographic Court” in the NYU Law Review.

Here is the abstract:

Over the past few decades, the Supreme Court of the United States has adopted an exceedingly narrow view of tribal civil jurisdiction, establishing doctrines that restrict the circumstances in which Native Nations can exercise their regulatory and adjudicative powers. While most scholarship in federal Indian law has assessed this judicial trend towards tribal disempowerment by focusing on the Court’s treatment of tribal sovereignty, this Note centers the Court’s manipulation of tribal territory. It argues that the Court has constructed three territorial incongruities—non-Indian fee lands, public access, and loss of “Indian” character—to justify the disallowance of tribal authority over significant portions of tribal reservations. In so doing, the Court relies on a spatial imaginary of territorial sovereignty, or the notion that sovereign power must be commensurate with sovereign domain, to present certain spaces as falling outside of a Native Nation’s territory and, accordingly, as beyond the reach of its jurisdictional power.

By illuminating the spatial imagination of the Supreme Court, this Note identifies a key practice employed by the Court that is central to empires past and present— cartography. The Court superimposes its own imagined legal geography upon the preexisting system of territorial division, redrawing the jurisdictional boundaries that separate states and Native Nations. This practice of spatial manipulation is cartographic in that it allows the Court to determine and limit the territory of tribal rule; to expand the areal authority of state jurisdiction; and to project its particular vision of reservation lands—a vision defined by notions of ownership, accessibility, and character—upon Indian country. These cartographic tactics of territorial acquisition and control are in direct furtherance of the American colonial project. They fragment tribal regulatory regimes, reify Indigenous life, and transfer congressional power to the Court to diminish tribal reservations. These practices of fragmentation, reification, and de facto diminishment are continuations of the repudiated but never-undone federal policy of allotment, although the main perpetrator is now the Court rather than Congress.

By turning to critical legal geography and theories of space and power, this Note reveals a Supreme Court that is highly imaginative, overtly spatial, and problematically cartographic in nature, engaged in a project of colonial expansion across its tribal civil jurisdiction cases.

Greg Ablavsky on Structural Federal Indian Law

Matthew L.M. Fletcher

Gregory Ablavsky has published “Structural Federal Indian Law after Brackeen” in the Arizona Law Review. PDF

The abstract:

“You know, when it comes to Indian law, most of the time we’re just making it up,” Justice Scalia once observed. This admission echoed long-standing critiques of the Supreme Court’s jurisprudence in the field, but these anxieties did not trouble the Court—until recently. Over the past two decades, the Court has begun to revisit the field’s foundations, culminating in the Court’s 2023 decision in Haaland v. Brackeen, which upheld the Indian Child Welfare Act against a constitutional challenge. Though the Court upheld the law, the majority pleaded for a “theory for rationalizing this body of law.” Justices Gorsuch and Thomas, each writing separately and at length, offered sharply different visions that would dramatically remake current doctrine.

Rather than providing a single theory, this Article tries to make sense of this current moment of “confusion” in federal Indian law, in the Brackeen majority’s language, by putting the field in dialogue with structural constitutional law. The fields have much in common: both deal with legal rules governing the distribution of governmental authority, and both confront the frequent absence of textual guidance. But in structural constitutional law—which rarely considers the authority of Native nations—the Court has developed a clearer and more fully articulated methodology for resolving this problem of textual underdetermination.

Extending this approach to federal Indian law, I argue, could produce greater clarity and rigor in the field. In particular, this method yields what I term two answers that the federal government has posited over its history to the interrelated questions of federal, Native, and state authority. I then use this framework to evaluate the visions for federal Indian law announced in Brackeen, all of which elide or submerge the jurisprudential choices that assessing these conflicting answers requires. I conclude by offering some thoughts on how Native nations and their advocates might confront this current moment of uncertainty and debate within the Court’s Indian law jurisprudence.

American Indian Law Review, Vol. 49, No. 1

Matthew L.M. Fletcher

Here:

Current Issue: Volume 49, Number 1 (2025)

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Front Pages

Essay

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Institutions and Economic Development
Ezra Rosser

Comments

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Tribal Authority to Issue Search Warrants to Non-Tribal Entities or on Non-Indian Land Within Reservation Boundaries
Ivy K. Chase

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Into the Jurisdictionverse: How Tangled Jurisdictional Lines Around Indian Country Thwart Attempts to End the Crisis of Missing and Murdered Indigenous Women
Evan Gamble

Notes

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The Native Fight for Hunting Rights: The Crow Tribe and Herrera v. Wyoming
Jacob Lewis

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The “Arm” That Saves You Might Also Strangle You: The Impact of Sovereign Immunity on Economic Arms of Tribes and How It Could Affect Others’ Willingness to Contract with Them
Josh Pumphrey

Special Feature

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The Need for Law in Federal Indian Law: A Response to Maggie Blackhawk in Light of the Supreme Court’s Troubling Term for Tribal Sovereignty
Nicholas B. Mauer

Daniel Rice on the Moral Complacency of Federal NDN Law

Matthew L.M. Fletcher

Daniel B. Rice has posted “The Moral Complacency of Federal Indian Law,” forthcoming from the Minnesota Law Review, on SSRN.

Here is the abstract:

For all its association with historical tragedy, federal Indian law remains thoroughly amoral. The field draws little distinction between horrific and laudable traditions. In sharp contrast with the Court’s equality doctrines, Indian law continues to rest on explicit structural subordination. Its core precepts tolerate the worst forms of historical treachery and cultural annihilation, treating such practices as legally generative in the present. This Article identifies Indian law’s moral vacuity as an unexplained and unjustified aberration. It urges the Court to speak and theorize about Indian law in a register befitting the subject’s moral gravity.

The Article offers a trio of explanations for Indian law’s enduring amorality—ones focused on reliance interests, strategic suppression by pro-tribal actors, and a desire to avoid broadcasting uncomfortable truths. It finds these reasons insufficient to justify the Court’s nonrecognition of historical evil. Although full decolonization is by now infeasible, the tonal shift I propose would help distance the Court from colonialism’s wrongs and un-skew the normative atmosphere in which lawyers debate the past’s continuing effects. It would also facilitate incremental reforms that could improve tribes’ litigation prospects dramatically.

In recent years, Justice Gorsuch has shown that Indian law’s moral complacency need not be accepted as natural or inevitable. But I question his insistence that the field can be set aright by adhering to original textual bargains. It is the ethical narratives to which Gorsuch subscribes, rather than his methodological commitments, that hold the promise of tempering Indian law’s most outrageous features. I also critique Gorsuch’s recent suggestion that Indian law contains an “anticanon” whose repudiation would rid the doctrine of its worst excesses. Moral socialization in this field should occur through the rejection of ideas, not the select vilification of cases with complicated legacies.

Nazune Menka on the Return of Treatymaking

Matthew L.M. Fletcher

Nazune Menka has posted “The Reparative Return of Treatymaking? Legal Norms, Native Nations, & the United States” on SSRN.

Here is the abstract:

This Article traces the various and conflicting legal norms that have influenced Indigenous Peoples Law over the last 400 years. While this Article builds upon several scholars at the nexus of Indigenous Peoples Law, constitutional law, and international law, it is the first to trace the thread of legal norms that weaves through history to the present. Through a nuanced recounting of legal history and storytelling, a clearer understanding of this field of law emerges that is important in at least two ways. First, conflicting legal norms have had an inordinate impact on the field, exacerbating Native Nation injustices over time. Second, the legal norms of diplomacy and shared sovereignty, which have roots in early western law and philosophy, have withstood the test of time and could provide legible and enforceable reparations to Native Nations. The Article illustrates how these legal norms have informed the rich history and practice of diplomacy and treatymaking in the pre-and early Republic eras. And they have rightfully influenced the resurgence of the original understanding of the Constitution and the diplomatic relationship between the federal government and Native Nations. The Article concludes by identifying how contemporary international law has continued to have an impact on legal norms in Indigenous Peoples Law and proposes a normative argument: that treatymaking, as the original approach to nation-to-nation relationship building, should be reinstated.

“Nanaboozhoo Died for Your Sins” Now In Print [review of Classic Book, “Custer Died for Your Sins”]

Matthew L.M. Fletcher

Here.

Monte Mills and Martin Nie on Tribal Co-Stewardship of Federal Public Lands

Matthew L.M. Fletcher

Monte Mills and Martin Nie have published “Planning A New Paradigm: Tribal Co-Stewardship and Federal Public Lands Planning” in the Colorado Environmental Law Journal.

Here is the abstract:

Planning is a critical part of the federal government’s management of the nation’s public lands. Over the last halfcentury, Congress has mandated that each of the four major public land management agencies; the U.S. Forest Service, the Bureau of Land Management, the U.S. Fish and Wildlife Service, and the National Park Service, develop and rely on plans to guide their oversight of public lands and resources. Virtually every activity or decision affecting these public lands can be traced back to language in—or missing from—a plan. But, despite the importance of planning, the process by which each agency develops and implements plans presents complex challenges for both the agencies and those interested in participating in or influencing both planning and resultant management decisions. These challenges can frustrate, if not derail, the incorporation of meaningful changes in planning documents that, given the often decades-long lifespan of a plan, could have long-term impact. The federal Departments of Interior and Agriculture—home to the four major land management agencies—are enhancing their engagement with Native Nations in the co-stewardship of public lands and resources. Given its importance to the management of public lands and resources, planning is key to these efforts, especially because most plans now, in effect, do little to consider the interests of Native Nations. Thus, although federal and tribal co-stewardship covers a range of activities, the relationship between co-stewardship and planning offers one of the most powerful avenues for reshaping the future of federal-tribal relations in the management of public lands and resources. This Article provides the first comprehensive effort to align federal public land planning with tribal co-stewardship through an analysis of the statutory, regulatory, and procedural planning requirements relevant to each of the four major federal public land management agencies. The Article also analyzes various plans and planning efforts to offer a roadmap for how Native Nations and their federal partners can use planning to spark and sustain a new era of tribal co-stewardship of federal lands and resources.

American Indian Law Journal, Vol. 13, Issue 2

Matthew L.M. Fletcher

Here:

Current Issue: Volume 13, Issue 2 (2025)

Articles

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Development and Practice of Tribal Community Planning: Ensuring Indigeneity in the Planning Process
Jared E. Munster, Ph.D.

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The Onondaga Nation’s Land Claim: Rights Without a Remedy?
Larissa Speak

Note

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Case Law on American Indians: September 2023 – August 2024
Thomas P. Schlosser