Scholarship

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

PDF

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

PDF

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

Note

PDF

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

Native America Calling Native Bookshelf on Monday, June 2: “Stick Houses” and “52 Ways to Reconcile”

Matthew L.M. Fletcher

Here:

David A. Robertson (Norway House Cree Nation) gives us 52 practical suggestions—one for each week of the year—to support and connect with Indigenous people. 52 Ways to Reconcilelists tasks as simple and enjoyable as making Bannock, to as challenging as taking personal action toward reconciliation.

Matthew Fletcher (Grand Traverse Band of Ottawa and Chippewa Indians) has devoted himself to the legal profession, becoming one of the most respected experts in Indian Law. In his spare time he has written and published a collection of fictional short stories, Stick Houses. He draws from his own observations and stories from his family to illustrate the lives of modern Native Americans.

We’ll add Matthew Fletcher’s Stick Houses, and David A. Robertson’s 52 Ways to Reconcile to the Native Bookshelf.

South Dakota Law Review Indian Law Symposium Call for Papers

Matthew L.M. Fletcher

Call for Papers for the South Dakota Law Review’s Access to Justice in Indian Country Symposium

The South Dakota Law Review seeks article proposals, speakers, and panel participants for a symposium on issues related to access to justice in Indian Country. The Access to Justice in Indian Countrysymposium will be held in Vermillion, South Dakota, on September 29th, 2025. 

Abstracts of 300-500 words are due June 27, 2025.

The symposium will focus on Indian Country. The editors seek articles and speakers that address one or more of the following topics, or other related topics:

1. Indigent defense in Indian Country

2. Tribal Justice Systems 

3. The practice of law in Indian Country, including on rural reservations 

4. Incarceration and recidivism 

5. The study Federal Indian Law and Tribal Law as an academic discipline 

6. Tribal Law Enforcement 

7. Legal aspects of the Land Back Movement 

8. Land ownership on reservations 

9. Licensure policies and impact on reservation areas

The editors actively seek diverse viewpoints and diverse scholarly approaches.  Although the symposium is not a historical or comparative project, the editors welcome articles with historical or comparative features.

In your proposal, please indicate whether you would be interested in (1) publishing your topic, (2) speaking at the symposium, or (3) both. Priority will be given to proposals where the contributor expects to both publish and speak at our in-person event, although we will consider other proposals. 

The Call for Papers opens today with abstracts due on June 27, 2025. Please send abstracts to tia.vlasman@coyotes.usd.edu. Selected contributors will be notified by July 3, 2025. Finished articles will be due Monday, December 1, 2025. Our editors will work with you over the winter 2023-24 to prepare your work for publication. The symposium volume will be published and released in the summer of 2026.

Jason Robison on Arizona v. Navajo Nation

Matthew L.M. Fletcher

Jason Robison has published “Relational River: Arizona v. Navajo Nation & the Colorado” in the UCLA Law Review.

Here is the abstract:

It is not every day the U.S. Supreme Court adjudicates a case about the water needs and rights of one of the Colorado River Basin’s thirty tribal nations and the trust relationship shared by that sovereign with the United States. Yet just that happened in Arizona v. Navajo Nation in June 2023. As explored in this Article, the Colorado is a relational river relied upon by roughly forty million people, reeling from climate change for nearly a quarter century, and subject to management rules expiring and requiring extensive, politically charged renegotiation by 2027. Along this relational river, Arizona v. Navajo Nation was a milestone, illuminating water colonialism and environmental injustice on the country’s largest Native American reservation, and posing pressing questions about what exactly the trust relationship entails vis-à-vis the essence of life. Placing Arizona v. Navajo Nation in historical context, the Article synthesizes the case with an eye toward the future. Moving forward along the relational river, the trust relationship should be understood and honored for what it is, a sovereign trust, and fulfilled within the policy sphere through a host of measures tied, directly and indirectly, to the post-2026 management rules. Further, if judicial enforcement of the trust relationship is necessary, tribal sovereigns in the basin (and elsewhere) should not view the Court’s 5–4 decision as the death knell for water-related breach of trust claims, but rather as a guide for bringing cognizable future claims and reorienting breach of trust analysis.

Kevin Washburn on Landback as Federal Policy

Matthew L.M. Fletcher

Kevin K. Washburn has published “Landback as Federal Policy” in the UCLA Law Review.

Here is the abstract:

Demands for the return of land to tribal nations have become much louder and more compelling in recent years. While “landback” has been part of federal policy for nearly a century, lawmakers and presidents from both parties have embraced landback initiatives more firmly in the last half century. But the quantity of lands returned is almost insignificant in comparison to the vast lands taken. Landback efforts are based in compelling moral claims. This Article summarizes the moral claims for landback by briefly recounting the widespread loss of land by Indian tribes through the nineteenth and twentieth centuries and highlighting the unique role of the federal government in this tragedy. It also showcases some of the tribal and federal counterefforts to the loss of land, including existing federal landback efforts that have returned millions of acres to tribes. The federal government has many tools available, and it should deploy them more effectively. Advocates must also be more strategic. Landback can be viewed in context with related federal initiatives, including renaming, comanagement, and costewardship, as well reservation expansion, retrocession, and other federal efforts to restore and expand tribal selfgovernance. These numerous related federal and tribal initiatives can support tribal landback and restorative justice efforts.

DiGrazia and Juliano on the Native Women’s Wage Gap

Matthew L.M. Fletcher

Danielle DiGrazia & Ann Juliano have published “Addressing the Gender Wage Gap for Native American Women” in the University of Maryland Law Journal of Race, Religion, Gender & Class.

An excerpt:

Native American women experience one of the largest wage gaps. Failure to remedy the wage gap for Native American women could lead to catastrophic consequences for generations of Native people. As it stands, the wage gap could amount to a financial loss of over $1.1 million over a 40-year career for a Native American woman starting her career today. This loss would disproportionately impact Native families over time, due to the prominent financial role played by women in Native households. Specifically, 64 percent of Native American mothers are the breadwinners for their families, meaning their families rely heavily on their income. Further, “[n]early one in four Native . . . households . . . are headed by women, and 30 percent of those households live below the poverty level.” Without equal pay, Native American women will continue to struggle to pay for “basic family necessities like rent, groceries, and school supplies” and to “invest in savings, higher education, or property.” However, if the wage gap were eliminated, the average Native American woman would be able to afford “[m]ore than 34 months of food; more than 29 more months of child care; their entire student loan debt in 16 months; almost 15 months of mortgage and utilities payments; or more than 17 additional months of premiums for employer-based health insurance.” The lack of sufficient funds today could also have ripple effects for future generations–for example, Native American women may struggle to put their children through school, then those children may have a more difficult time getting higher-paying jobs, and the cycle of economic disenfranchisement will continue.