tribal membership

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

Matthew 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.

D.C. Federal Court Declines to Overturn Newland Opinion in California Miwok Tribe Membership Dispute

Matthew L.M. Fletcher

Here are the materials in California Valley Miwok Tribe v. Haaland (D.D.C.):

1 Complaint.pdfDownload
1-1 Exh A.pdfDownload
1-2 Exh B.pdfDownload
28 Motion for Summary J.pdfDownload
29 Federal Cross-Motion.pdfDownload
31 Reply ISO 28.pdfDownload
33 Federal Reply ISO 29.pdfDownload
45 DCT Order.pdfDownload

Sault Tribe Appellate Court Rejects Challenges to Election that Opened Membership Rolls

Matthew L.M. Fletcher

Here is the opinion in McRorie v. Election Committee (Sault Tribe of Chippewa App. Ct.):

McRorie v Emerg. Elec. Cmte. Opinion.pdfDownload
APP-2023-09 Hatch v. Election Cmte.pdfDownload

Tribal SCT Briefs in Citizenship Board of the Muscogee (Creek) Nation v. Grayson

Matthew L.M. Fletcher

Here:

Appellant Brief.pdfDownload
Response Brief.pdfDownload
Motion for Leave to File Amicus Brief.pdfDownload

More briefs TK.

Lower court decision here.

Jeffrey Gibson

D.C. Federal Court Declines to Enjoin Interior Work to Organize California Valley Miwok Tribe

Matthew L.M. Fletcher

Here are the materials in the case captioned California Valley Miwok Tribe v. Haaland (D.D.C.):

1 Complaint

37 Motion for Preliminary Injunction

38 Response

39 Reply

40 DCT Order

Tenth Circuit Briefs in Challenge to “Indian Status” of Cherokee Nation Citizen

Matthew L.M. Fletcher

Here are the briefs in United States v. Laskey:

Opening Brief.pdfDownload
US Answer Brief.pdfDownload

MCN District Court Orders Enrollment Office to Reconsider Denials of Freedmen Descendants’ Citizenship Applications

Matthew L.M. Fletcher

Here is the order in Grayson v. Citizenship Board (MCN Dist. Ct.):

mcn dist. ct., order and opinion on appeal from citizenship board of the muscogee (creek) nation denial of creek freedmen citizenship application, 09272023.pdfDownload
Cannupa Hanska Luger @ UMMA

SCOTUSBlog Recap of Arizona v. Navajo Opinion

Matthew L.M. Fletcher

Here.

Opinion and stuff here.

New Student Scholarship on Tribal Citizenship and Blood Quantum

Matthew L.M. Fletcher

Ashleigh Lussenden has published a Note, “Blood Quantum and the Ever-Tightening Chokehold on Tribal Citizenship: The Reproductive Justice Implications of Blood Quantum Requirements,” in the California Law Review. PDF

The abstract:

Blood often serves as the basis for identity for many groups in the United States. Native Americans, however, are the only population in which blood is a requirement for collective belonging and can be the determining factor for whether one receives tribal benefits and services. Many Tribal Nations use blood quantum, the percentage of Indian blood one has, as a bright-line rule to determine qualification for tribal membership. Initially established as a colonial tool of dispossession and assimilation, tribes adopted blood quantum to ensure the preservation of culture and community.

This Article contends that tribal adoption of blood quantum limits tribal members’ reproductive autonomy and violates the tenets of reproductive justice. Forcing tribal members to consider the blood quantum of their future children limits individual choice of partner and the manner in which tribal members choose to build their families. This limitation of autonomy and violation of reproductive justice principles is especially stark when analyzed in combination with contemporary pressures on Native conception and parenting, including urban migration, dysgenic environmental impacts on fertility, sexual violence, and inadequate, underfunded, and abusive reproductive healthcare. Collectively, these pressures decrease fertility, the number of available partners, and the ability for Native people to conceive and parent within their own communities.

By applying the principles of reproductive justice, Tribal Nations may begin to reassess what belonging means in Native communities and how tribal membership policies can support reproductive autonomy. The current rise of nation-building and concentrated push for self-determination in Native communities provides a unique opportunity to interrogate the priorities of tribal membership requirements and reimagine inclusion and collective belonging in Native Nations.

Fletcher on Tribal Customary Law and an Indigenous Canon of Construction

Matthew L.M. Fletcher

Check out “The Three Lives of Mamengwaa: Toward an Indigenous Canon of Construction” on SSRN.

Abstract:

This paper will survey the history of tribal courts, which allows for an explanation for the reasons behind the relatively minimal impact tribal courts have had on Indian country governance, drawing on the work of Rob Porter. The paper will then turn to the monumental changes in tribal judiciaries and in tribal legal practice of the last few decades, which in turn allows for a discussion about several recent tribal court decisions that could signal a future where tribal courts play a far greater role in regulating Indian country governance through the application of customary law, drawing on the work of Wenona Singel. Finally, the paper offers preliminary thoughts on whether adding robust tribal judicial regulation to an already crowded field of Indian country governance is normatively beneficial. Short answer? Yes. Many of the intractable political disputes that plague tribal governance can be traced to the reliance by tribal governments on state and federal legal principles that are deeply flawed and have limited value in Indigenous contexts. I suggest the acknowledgment of an Indigenous Canon of Construction of tribal laws by tribal judiciaries that limit the impact of colonization on tribal nations.