Emily Harwell on the Effects of McGirt

Emily N. Harwell has published “Judicial Discretion Across Jurisdictions: McGirt’s Effects on Indian Offenders in Oklahoma” in the Cornell Law Review. PDF.


Here is the abstract:

Oklahoma’s exercise of criminal jurisdiction over crime committed on tribal reservations remained unchecked until 2020. In McGirt v. Oklahoma, the Supreme Court held that the Muscogee Creek Nation’s reservation had in fact never been disestablished and remains in existence today. In doing so, the Court restored criminal prosecution authority to tribal and federal courts. McGirt received praise throughout the United States from tribal nations and federal Indian Law practitioners for Justice Gorsuch’s strong affirmation of the Muscogee Creek’s sovereignty over its reservation and the honoring of treaties made between the United States and the Muscogee Creek Nation. Similarly situated tribes in Eastern Oklahoma including the Cherokee, Choctaw, and Chickasaw have already joined the Muscogee Creek Nation in asserting the changes that McGirt brings.

In the wake of this change, legal and political discussion has centered around practical matters: Does the Tribe have adequate resources for managing criminal jurisdiction within its reservation? Will the increase in cases overload the federal court system? The question of how the change in prosecutorial authority will affect Native American criminal defendants has yet to be asked, though. This Note assesses the effects of McGirt on the sentencing of Native Americans who commit crimes on a reservation in Oklahoma. Oklahoma state court judges exercise discretion in areas of sentencing different from federal court judges. Existing empirical studies suggest federal sentencing produces harsher, lengthier sentences than state courts. By comparing Oklahoma and federal court sentencing data, this study attempts to answer whether McGirt‘s celebration of tribal sovereignty is simultaneously a devastating blow to Native American criminal defendants committing crimes on tribal reservations in Oklahoma.

Lunch in Indian Country CLE: Supreme Court Update on Indian Law [with Fletcher]

Supreme Court Update on Indian Law

Co-Sponsored by the State Bar of Arizona and the State Bar’s Indian Law Section

January 18, 2023, 12:00-1:00 MST

1.0 Total CLE Unit

Join Professor Matthew Fletcher as he reviews the most recent Supreme Court decisions affecting Indian Country.


Matthew Fletcher, Harry Burns Hutchins Collegiate Professor of Law, Michigan Law

Doreen McPaul, President, Tribal In-House Counsel Association
Virjinya Torrez, Assistant Attorney General, Pascua Yaqui Tribe

Register: https://azbar.inreachce.com/Details/Information/1661e72a-831b-45a2-ad84-a06a235557ee

SCOTUS Grants LDF v. Coughlin

Here is the order.

Cert stage briefs here.

Merits Stage Briefs in Arizona v. Navajo Nation/Dept. of the Interior v. Navajo Nation


All this water is Navajo.

Greg Bigler on Euchee Legal Traditions

Gregory Bigler has posted “7000 Dzo-Gaw-law (Ancestors)” on SSRN. Here is the abstract:

I read Stories from the Euchee Reservation on a plane. I read it cover to cover, I was as if emerging from a dream in which animals and humans understand one another and spirits come to visit over a cup of coffee.

Judge Bigler is a Euchee tribal citizen and a member of Polecat Ceremonial Grounds, a Harvard Law School graduate, longtime district court judge at the Muscogee (Creek) Nation. He co-counselled Indian law cases to the U.S. Supreme Court, mentored generations of Indian law attorneys, published law review articles.

Yet as Judge Bigler’s stories make clear, Indian people are keeping their traditions alive, listening to their chiefs, speaking Indigenous languages, and navigating contemporary circumstances: sending gossipy texts at the stomp grounds, wolf eating tofu in the forest, or teasing academics about their decolonizing methodologies. Shaw-jane, Mr. Rabbit, remains popular even after many years on the Indian story circuit.

This is a world, real life, for the people who keep the fire, the towns, the ballgames, and dances alive day in and day out, carrying out the ways of their people. These are cultural traditions handed down from generation to generation, suppressed for hundreds of years, still surviving today. Even if only with maybe a few hundred traditional practitioners.

The U.S. Supreme Court decided in the 2020 case of Jimcy McGirt v. State of Oklahoma that the Muscogee (Creek) Nation remains a reservation, “Indian Country” for purposes of federal criminal jurisdiction. The McGirt decision, means the Muscogee (Creek) Nation government has jurisdiction over a significant portion of northeast Oklahoma.

What law now applies in the reservation? Federal and tribal law, perhaps state law by agreement or statute? What is tribal law exactly? The United Nations Declaration on the Rights of Indigenous Peoples recognizes the right of tribes to exist as distinct peoples with their own “laws, customs, and traditions.” It recognizes their rights to maintain their religious sites, indigenous languages, sacred plants, traditional medicines – or as Natives put it, the Declaration recognizes the rights of Indigenous Peoples to maintain their “ways.”

The ways of the Muscogee and Euchee people are carried on at the stomp grounds. These ways can be understood as the laws, customs, and traditions of the Muscogee and Euchee people, are highly complex, deeply embedded, and alive. Following the directions of their chiefs, carrying out ceremonial rules, honoring the spirit world, maintaining peace and order, caring for children while teaching them proper ways of behavior, and so on. These laws, customs, and traditions, structure Euchee society in Stories from the Euchee Reservation. These laws are challenged by many things – the history of conquest and colonization, generations of social and economic deprivation, and the temptations of contemporary society – yet they remain alive to this day.

Fletcher on the Dark Matter of Federal Indian Law

Please check out “The Dark Matter of Federal Indian Law: The Duty of Protection,” a draft of which is now available on SSRN.

Here is the abstract:

The United States and every federally recognized tribal nation originally entered into a sovereign-to-sovereign relationship highlighted by the duty of protection, a doctrine under international customary law in which a larger, stronger sovereign agrees to “protect” the small, weaker sovereign. The larger sovereign agrees to this duty of protection, in the American case anyway, in exchange for massive, occasionally unquantifiable amounts of land and resources, as well as the power to control the external sovereign relations of the protected sovereign. The smaller sovereigns, in this case, tribal nations, typically received protected reservation lands, hunting and fishing rights, small cash infusions, and the vague promise of protection.
What tribal nations have received so far in exchange for their lands and resources and sovereignty is a pittance compared to the value of that consideration. Justice Gorsuch noted in a recent case that tribal nations in Washington gave up millions of acres in exchange for “promises.” Those promises must mean something.
I call those promises the dark matter of federal Indian law.
The duty of protection owed by the United States to tribal nations is much like dark matter. The duty of protection was left undefined in Indian treaties. Yes, the treaties and other agreements that established a sovereign-to-sovereign relationship did provide for specific details about that relationship, most famously hunting and fishing rights or criminal jurisdiction. But most treaties and agreements are sparse, leaving open most of the details about that relationship. That’s the dark matter of Indian law.
This essay argues that the duty of protection between tribal nations and the federal government is law and that the judiciary has an obligation to enforce aspects of the duty of protection as understood by both tribal nations and Congress. The essay begins by describing the duty of protection as understood by tribal nations at the time of the origination of the duty and now. The essay then turns to how Congress and the Department of the Interior understands the duty of protection, at least since the start of the tribal self-determination era in the 1970s, and how the Department of Justice often undermines that understanding. Then, the essay explains that the dark matter of federal Indian law is the duty of protection, that the federal obligations to tribal nations and individual Indians is real, and that the duty of protection is enforceable. Finally, the essay shows how the United Nations Declaration of the Rights of Indigenous Peoples is a useful tool judges can use in adjudicating the scope of the unstated parts of the duty of protection.
This essay is an invited submission to the Maine Law Review Indian law symposium.

This paper was also the subject of the 2022 Rennard Strickland lecture at the University of Oregon Law School:

Fletcher and Khalil on ICWA and Preemption

Posted an earlier draft of this before, but here is the all-but-final version, now available on SSRN here.

Here is “Preemption, Commandeering, and the Indian Child Welfare Act,” published in the Wisconsin Law Review.

Texas better do what it’s told.