tribal membership – Turtle Talk

Many First Nation individuals appear to accept that debates about belonging to First Nations political community are properly framed as debates about citizenship. Interlocutors frequently identify the ongoing significance of kinship, but fold it into their conception of citizenship. This Article resists citizenship’s orthodoxy. Kinship is not a unique feature of First Nations citizenship, but rather is its own model of belonging to a political community: a model internal to First Nations law, understood on its own terms. There are, then, two models of belonging to First Nations political community, citizenship and kinship, within and over which debates about belonging play out.

For First Nations political communities using their own systems of law, kinship is a source of fundamental legal interests, just as citizenship is a source of fundamental rights and freedoms in modern liberal democracies. However, comparativists, legal theorists, and political theorists have struggled to appreciate this reality because internal (or settler) colonialism disconnects kinship from legality conceptually and thus institutionally. Those connections must be reestablished.

To that end, this Article shows that, functionally, kinship is a full answer to citizenship. The argument is made in two interwoven parts, each of which turns on the picture of kinship as a structural feature of First Nations law, understood on its own terms. First, kinship is citizenship’s political equal insofar as it offers a justificatory account of belonging to a political community; second, kinship is citizenship’s legal equal insofar as it, too, serves as a foundation for fundamental legal interests. The gravamen of this Article is, thus, twofold. First, one is not hearing what First Nations law says about belonging if one is only willing or able to listen in the language of citizenship. Second, the stakes in one’s choice of model are significant: citizenship and kinship structure legality in fundamentally different ways.

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Fletcher’s “Nanaboozhoo and Derrick Bell for a Walk”

April 28, 2025Matthew L.M. Fletcher

Here is “Nanaboozhoo and Derrick Bell Go for a Walk,” published in the B.U. Law Review Online, now posted on SSRN.

Boston U. Law Review Symposium on Carla Pratt’s “Indianness as Property”

April 15, 2025Matthew L.M. Fletcher

Carla D. Pratt has published “Indianness as Property” in the B.U. Law Review.

Abstract:

This Article expands upon the seminal work by Cheryl Harris entitled Whiteness as Property by exploring the intersection of race and property through Indianness. Indianness has been constructed as a form of property
conferring rights and privileges to its holders which this Article examines through the inertial relationship between race and legal status. Tracing the historical evolution of Indianness from the slavery era to the modern era demonstrates the complex relationship between tribal sovereignty, citizenship and Indian identity. This legal history contextualizes contemporary disputes over who can enjoy tribal citizenship and be Indian. This Article advocates for a reevaluation of Indianness that it is not grounded in notions of race and property, but rather sovereignty, history and culture, asserting that broadening the conception of Indianness will strengthen tribal sovereignty.

There are three responses (one forthcoming) to this paper:

Rejecting the Racialization of Indianness
Andrea J. Martin

Nanaboozhoo and Derrick Bell Go for a Walk
Matthew L.M. Fletcher

New Student Scholarship on Tribal Disenrollments

March 24, 2025Matthew L.M. Fletcher

John K. Crawford (Forest County Potawatomi) has published “Disenrollment as Citizenship Revocation: Promoting Tribal Sovereignty by Embracing International Norms” in the Yale Law Journal.

Here is the abstract:

This Note argues that Indian tribes can best address disenrollment by viewing the problem through the lens of international norms regarding citizenship revocation. Tribal officials and members, advocates and journalists, and scholars and practitioners of federal Indian law typically understand disenrollment, which is when a tribe severs its governmental relationship with certain members, as a practice unique to Indian Country. However, while tribes’ unique legal status facilitates disenrollment, this practice can nevertheless be understood as a form of citizenship revocation, which is when a state deprives certain persons of their previously held citizenship. By understanding disenrollment as citizenship revocation, tribes can draw from a wide body of existing literature about states’ citizenship-revocation regimes when considering limitations on their power to disenroll. If tribes choose to address disenrollment by embracing international norms regarding citizenship revocation, they will not simply invoke tribal sovereignty, as sometimes occurs under the current status quo, but instead promote it by advancing good governance and aligning their sovereignty with state sovereignty.

*This is no reflection on the quality of this paper, which seems excellent, but I have a limited number of Yale pics.* *And this one is straight fire.*

New Book: “Beyond Blood Quantum: Refusal to Disappear”

March 19, 2025Matthew L.M. Fletcher

Buy here from Fulcrum Books.

“The Three Lives of Mamengwaa: Toward an Indigenous Canon of Construction” Article Now Published By Yale

January 31, 2025Matthew L.M. Fletcher

Here.

Abstract:

For too long, tribal judiciaries have been an afterthought in the story of tribal self-determination. Until the last half-century, many tribal nations relied on federally administered courts or had no court systems at all. As tribal nations continue to develop their law-enforcement and police powers, tribal justice systems now play a critical role in tribal self-determination. But because tribal codes and constitutions tend to borrow extensively from federal and state law, tribal judges find themselves forced to apply and enforce laws that are poor cultural fits for Indian communities—an unfortunate reality that hampers tribal judges’ ability to regulate and improve tribal governance.

Even where tribal legislatures leave room for tribal judges to apply tribal customary law, the results are haphazard at best. This Article surveys a sample of tribal-court decisions that have used customary law to regulate tribal governance. Tribal judges have interpreted customary law when it is expressly incorporated into tribal positive law, they have looked to customary law to provide substantive rules of decision, and they have relied on customary law as an interpretive tool. Reliance on customary law is ascendant, but still rare, in tribal courts.

Recognizing that Indian country will continue to rely on borrowed laws, and aiming to empower tribal courts to advance tribal governance, this Article proposes that tribal judges adopt an Indigenous canon of construction of tribal laws. Elevating a thirty-year-old taxonomy first articulated by Chief Justice Irvin in Stepetin v. Nisqually Indian Community, this Article recommends that tribal judges seek out and apply tribal customary law in cases where (1) the relevant doctrine arose in federal or state statutes or common law; (2) the tribal nation has not explicitly adopted federal or state law on a given issue in writing; (3) written tribal law was adopted or shifted as a result of the colonizer’s pressure and interests; and (4) tribal custom is inconsistent with the written tribal law, most especially if the law violates the relational philosophies of that tribal nation. Tribal judiciaries experienced at applying tribal customary law will be better positioned to do justice in Indian country.