Turtle Talk

Hon. Claudette White Walks On

February 11, 2021February 11, 2021Kate Fort

Words I’ve seen describing Claudette this week: a leader, a good good person, a force, a problem solver, a giant for tribal courts, a kind judge, a fighter, a singer, a dancer, a dear friend, a sister, a mom. She was all that and more, and we are heartbroken to lose her.

Here (starting at 1:21) she is kicking off the Inauguration.

Here is the documentary Tribal Justice with her and Judge Abinanti.

Here is the announcement from the National American Indian Court Judges Association: Claudette White Announcement

Tribal Law Journal Volume 20

February 11, 2021Matthew L.M. Fletcher

Here:

PDF

Santa Clara Pueblo v. Martinez in the Evolution of Federal Law
Richard B. Collins

PDF

Tribal Justice: Honoring Indigenous Dispute Resolution (Symposium Keynote Address)
Deb Haaland

PDF

Native American Oral Evidence: Finding a New Hearsay Exception
Max Virupaksha Katner

PDF

Tribal Opposition to Enbridge Line 5: Rights and Interests
John Minode’e Petoskey

Stephanie Hall Barclay & Michalyn Steele on Protections for Indigenous Sacred Sites

February 11, 2021Matthew L.M. Fletcher

Stephanie Hall Barclay & Michalyn Steele have published “Rethinking Protections for Indigenous Sacred Sites” in the Harvard Law Review. Here is the abstract:

Meaningful access to sacred sites is among the most important principles to the religious exercise of Indigenous peoples, yet tribes have been repeatedly thwarted by the federal government in their efforts to vindicate this practice of their religion. The colonial, state, and federal governments of this Nation have been desecrating and destroying Native American sacred sites since before the Republic was formed. Unfortunately, the callous destruction of Indigenous sacred sites is not just a troubling relic of the past. Rather, the threat to sacred sites and cultural resources continues today in the form of spoliation from development, as well as in the significant barriers to meaningful access Indigenous peoples face.
Scholars concerned about government failure to protect Indigenous sacred sites on government property have generally agreed that the problem stems from the unique nature of Indigenous spiritual traditions as being too distinct from non-Indigenous religious traditions familiar to courts and legislators, and therefore eluding protection afforded to other traditions. By contrast, this Article approaches the problem from an entirely different angle: we focus instead on the similarities between government coercion with respect to Indigenous religious exercise and other non-Indigenous religious practices. We illustrate how the debate about sacred sites unwittingly partakes in longstanding philosophical debates about the nature of coercion itself — a phenomenon that has previously gone unnoticed by scholars. This Article argues that whether or not one formally labels the government’s actions as “coercive,” the important question is whether the government is bringing to bear its sovereign power in a way that inhibits the important ideal of religious voluntarism — the ability of individuals to voluntarily practice their religious exercise consistent with their own free self-development. Indeed, this is precisely the sort of question courts ask when evaluating government burdens on non-Indigenous religious exercise. The failure to ask this same question about voluntarism for Indigenous religious practices has created a double standard, wherein the law recognizes a much more expansive notion of coercion for contexts impacting non-Indigenous religious practices, and a much narrower conception of coercion when it comes to Indigenous sacred sites.
This egregious double standard in the law ought to be revisited. Doing so would have two important implications. First, when government interference with religious voluntarism is viewed clearly, tribal members and Indigenous practitioners should be able to prove a prima facie case under statutes like the Religious Freedom Restoration Act much more easily. Second, this Article makes the novel claim that clearer understanding of the coercive control government exercises over sacred sites should animate a strong obligation under the government’s trust responsibility and plenary power doctrine to provide more — rather than less — robust protection of Indigenous sacred sites.

Judge Bradley Letts on the Cherokee Court System

February 10, 2021Matthew L.M. Fletcher

Judge Bradley Letts has published “The Cherokee Tribal Court: Its Origins and Its Place in the
American Judicial System” in the Campbell Law Review.

Highly recommended.

Stacy Leeds and Lonnie Beard on the Tax Implications of McGirt v. Oklahoma

February 9, 2021Matthew L.M. Fletcher

Stacy Leeds and Lonnie Beard have posted “A Wealth of Sovereign Choices: Tax Implications of McGirt v. Oklahoma and the Promise of Tribal Economic Development,” forthcoming in the Tulsa Law Review, on SSRN. Here is the abstract:

Justice Neil Gorsuch’s now famous opening line in McGirt v. Oklahoma will long be remembered by Indigenous nations as one of the most powerful judicial statements in the history of federal Indian law. “On the far end of the Trail of Tears was a promise.”
For that promise to be fully realized, the McGirt decision must lead to more than just increased criminal justice system responsibilities for the federal government and the impacted Indigenous nations, collectively known as the “Five Tribes.” The promise at the end of the wholesale removal and relocation of Five Tribes was not simply an empty promise of geographic boundaries, it also included a permanent homeland with fully functioning tribal governments, including powers of taxation. With the re-affirmation of reservation boundaries and the re-assumption of many governmental responsibilities, the Five Tribes necessarily have the power to raise meaningful revenue to govern.
The promise must also include diverse economic development strategies conceived of and implemented by the Five Tribes in order to take advantage of and fully realize McGirt’s newly reaffirmed reservation status. If this challenge is accepted, the Five Tribes have an opportunity to reconfirm and expand government powers that have been denied them for over a century, including the power to make the same sovereign tax choices afforded other sovereigns worldwide.
This article explores the tax implications of the McGirt decision with detailed analysis of what has changed, and what remains the same, for purposes of federal, tribal and state taxing authority. The article suggests several law and policy choices available to the Five Tribes, including how to maximize tax incentives to grow the reservation population base and support a diverse economy through small business and enterprise scale development. The article includes a call to action for tribal governments to formulate a long-term economic strategy that will take advantage of tax attributes that attach to the various reservations. In conclusion, the article suggests possible compact arrangements with other Indigenous nations and with Oklahoma’s state and local governments.
McGirt has been heralded as ushering in substantial changes for the eastern half of Oklahoma. If tribes and Oklahoma play their collective economic cards right, big change could come in the form of positive economic outcomes. Economists predict, or at least hope for, a post-COVID economic revival for rural communities in America’s heartland. To assist in this economic revival, the Five Tribes’ reservations could serve as laboratories for the formulation of economic development strategies that could serve as blueprints for other parts of rural America. For that to happen in eastern Oklahoma, McGirt will need to live up to its full potential, becoming much more than an overturned criminal conviction from inside Indian country.

Govind Persad on Allocating Medicine Fairly in an Unfair Pandemic

February 9, 2021Matthew L.M. Fletcher

Govind Persad has posted “Allocating Medicine Fairly in an Unfair Pandemic,” forthcoming in the University of Illinois Law Review, on SSRN. Here is the abstract:

America’s COVID-19 pandemic has both devastated and disparately harmed minority communities. In this Article, I focus on the pressing question of how the allocation of scarce treatments for COVID-19 and similar public health threats should respond to these racial disparities. Many policymakers and popular commentators have recognized that the inevitable initial scarcity of vaccines presents questions about racial disparity. Therapeutics like monoclonal antibodies raise similar questions, as do emergency interventions such as ventilators and ICU beds. Some have proposed that members of racial groups who have been especially hard-hit by the pandemic should receive priority for scarce treatments. Others have worried that this prioritization misidentifies racial disparities as reflecting biological differences rather than structural racism, or that it will generate mistrust among groups who have previously been harmed by medical research. Still others complain that such prioritization would be fundamentally unjust.
In Part II, I provide a brief overview of current and proposed COVID-19 treatments and identify documented or likely scarcities and disparities in access. In Part III, I argue that randomly allocating scarce medical interventions, as some propose, will not effectively address disparities: it both permits unnecessary deaths and concentrates those deaths among people who are more exposed to infection. In Part IV, I explain why using individual-level racial classifications in allocation is precluded by current Supreme Court precedent. Addressing disparities will require focusing on factors other than race, or potentially considering race at an aggregate rather than individual level. I also argue that policies prioritizing members of Native American tribes can succeed legally even where policies based on race would not. In Part V, I examine two complementary strategies to narrow racial disparities. One would prioritize individuals who live in disadvantaged geographic areas or work in hard-hit occupations, potentially alongside race-sensitive aggregate metrics like neighborhood segregation. These approaches, like the policies school districts adopted after the Supreme Court rejected individualized racial classifications in education, would narrow disparities without classifying individuals by race. The other strategy would address the starkly disparate racial impact of deaths early in life by limiting the use of policies that explicitly deprioritize the prevention of early deaths, and by considering policies that prioritize their prevention.

Second Circuit Rejects Six Nations GRE Challenge to Connecticut’s Tobacco Statute

February 9, 2021Matthew L.M. Fletcher

Here are the materials in Grand River Six Nations Enterprises Ltd. v. Boughton:

CA2 Opinion

Six Nations Grand River Enterprises Brief

Connecticut Brief

Ninth Circuit Materials in Snoqualmie Tribe v. State of Washington

February 8, 2021Matthew L.M. Fletcher

Briefs:

Samish Brief

Samish Reply

Sauk-Suiattle Amicus Brief

Snoqualmie Brief

Snoqualmie Reply

State Response Brief

Treaty Tribes Amicus Brief

Tulalip Amicus Brief

Lower court materials here.

Federal Court Denies Injunction on Enbridge Line 3, Too

February 8, 2021Matthew L.M. Fletcher

Here are the materials in Red Lake Band of Chippewa Indians v. United States Army Corps of Engineers (D.D.C.):

28 Enbridge Opposition

29 Army Corps Opposition

33 Reply

42 DCT Order

Prior post here.

Fletcher’s “Muskrat Textualism”: McGirt versus Oliphant

February 8, 2021Matthew L.M. Fletcher

Here is “Muskrat Textualism,” available on SSRN. The abstract:

The Supreme Court’s decision McGirt v. Oklahoma confirming the boundaries of the Creek Reservation in Oklahoma was a truly rare case where the Court turned back arguments by federal and state governments in favor of American Indian and tribal interests. For more than a century, Oklahomans had assumed that the reservation had been terminated, and acted accordingly. But only Congress can terminate an Indian reservation, and it simply had never done so in the case of the Creek Reservation. Both the majority and dissenting opinions attempted to claim the mantle of textualism, but their respective analyses led to polar opposite outcomes.

Until McGirt, a “faint-hearted” form of textualism has dominated the Court’s federal Indian law jurisprudence. This methodology enables the Court to seek outcomes consistent with the Justices’ views on how Indian law “ought to be.” This Article labels this thinking Canary textualism, named after the dominant metaphor used for decades to describe Indian law, the miner’s canary. Like the miner’s canary, a caged bird used by miners to detect and warn of toxic gasses in a mine, Canary textualists treat Indians and tribes as powerless and passive subjects of federal law and policy dictated by Congress and the Supreme Court. Canary textualism relies on confusion in the doctrinal landscape and fear of tribal powers to justify departures from settled law. The 1978 decision, Oliphant v. Suquamish Indian Tribe, in which the Supreme Court stripped Indian tribes of critical law enforcement powers by judicial fiat, is the prototypical Canary textualism case. Oliphant’s hallmark is the Court’s legal acknowledgment that Indian tribes are dependent on the federal government merged with centuries of precedents that presumed the racial inferiority of Indian people. This allowed the Court to quietly assume that tribal governments therefore are inferior as well.

Scholars long have decried the Court’s Canary textualism but have rarely offered a better theory. This Article attempts to fill that gap, and to provide a higher level of certainty in federal Indian law textualist doctrine that will help to preclude Canary textualist activism. A far better metaphor than of the miner’s canary would be that of the muskrat, the hero of the Anishinaabe origin story of the great flood, a lowly, humble animal that nevertheless took courageous and thoughtful action to save creation. Indians and tribes are no longer caged birds. Tribal governments are active participants in reservation governance. They are innovative and forward-thinking. Luckily, the McGirt decision exemplifies a new form of textualism, Muskrat textualism, that acknowledges and respects tribal actions and advancement. Muskrat textualists accept tribal governments as full partners in the American polity. Muskrat textualists accept the relevant interpretative rules that govern federal Indian law where texts are ambiguous and where texts are absent or not controlling. As a result, Muskrat textualism is also a superior form of textualism more generally, illustrating the proper role of the judiciary in constitutional law and statutory interpretation, and ensuring more predictable and just Indian law adjudication.

This Article argues that McGirt – and its embrace of Muskrat textualism – is a sea change in federal Indian law, and rightfully so. If that is the case, then cases like Oliphant should be reconsidered and tossed into the dustbin of history.

Here are images of some of the historical gossip I uncovered for this paper: