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.

St. Regis Mohawk Citizens Who are also Canadian Sue U.S. Education Department

Matthew L.M. Fletcher

Here is the complaint in Rourke-Rodriguez v. Dept. of Education (N.D. N.Y.):

ComplaintDownload

D.C. Federal Court Refuses to Enjoin Interior’s Reversal of Scotts Valley Decision

Matthew L.M. Fletcher

Here are the new materials in Scotts Valley Band of Pomo Indians v. Burgam (D.D.C.):

3-1 Motion for Injunction

47 Opposition

57 United Auburn Community Amicus Brief

58 Lytton Rancheria Amicus Brief

63 Reply

75 GTL Properties Amicus Brief

76 COLT Amicus Brief

83 DCT Order

Prior post here.

“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.

Unkechauge Indian Nation v. Seggos Cert Petition

Matthew L.M. Fletcher

Here:

Cert PetitionDownload

Questions presented:

Whether the District Court violated Petitioners’ due process rights by granting summary judgment without first fulfilling its gatekeeping obligation under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), to rule on the parties’ pending motions to exclude or limit expert testimony?

Whether the District Court erred by relying on the Respondents’ expert witness in its summary judgment decision without first addressing the Petitioners’ motion to exclude or limit Respondents’ expert’s testimony under Daubert?

Whether the District Court violated Petitioners’ due process rights by failing to conduct an in camera review of 4,780 documents withheld by Respondents under claims of privilege, despite having ordered such a review and having possession of the documents since May 2019?

Whether the Court improperly analyzed the Andros Treaty by not finding the Treaty ambiguous and conducting the Indian Canons analysis?

Whether the Court misapprehended the law in finding the Andros Treaty not valid under Federal law?

Lower court materials here.

ASU Reception Honoring Rodina Cave Parnall, Thursday, June 12, 2025

Matthew L.M. Fletcher