Fletcher on Policing and Anishinaabe Political Philosophy

Fletcher’s new working paper is up on SSRN: “Erasing the Thin Blue Line: An Indigenous Proposal.

Here is the abstract:

The article was inspired by the statements of support for the Black Lives Matter movement from state supreme courts like those in Washington and California, and elsewhere. I am a tribal appellate judge for several tribes here in Michigan, and I serve on the Michigan Tribal-State-Judicial Forum. In part, this article is addressed to the state judges who have spoken out on BLM and the judges on the Michigan forum who speak out in favor of Indian children. The novel claim of the article is that the Supreme Court long has used what I term “social contract talk” to demean, dehumanize, and marginalize POC and lower income persons most likely to be subjected to police interventions. This “social contract talk” is not the law, but enables judges to grant police (and prosecutors, though I don’t address them directly) immense discretion to target POC and lower income persons, and to immunize them from legal consequences. Weaponized “social contract talk” recalls the origin of the social contract in America, which enabled and encouraged slavery and dispossession of Indigenous peoples. I offer an alternative to social contract talk rooted in Anishinaabe political philosophy, which encourages inclusion, healing, and accountability. Many tribes have relatively little policing of their territories and a completely different mentality about criminal justice.

New Fletcher Paper: “The Rise and Fall of the Ogemakaan”

Please check out my new paper, “The Rise and Fall of the Ogemakaan,” now available on SSRN. Here is the abstract:

Anishinaabe (Odawa, Bodewadmi, and Ojibwe) legal and political philosophy is buried under the infrastructure of modern self-determination law and policy. Modern Anishinaabe tribes are rough copies of American governments. The Anishinaabeg (people) usually choose their ogemaag (leaders) through an at-large election process that infects tribal politics with individualized self-interest. Those elected leaders, what I call ogemaakaan (artificial leaders) preside over modern governments that encourage hierarchy, political opportunism, and tyranny of the majority. While modern tribal governments are extraordinary successes compared to the era of total federal control, a significant number of tribes face intractable political disputes that can traced to the philosophical disconnect from culture and tradition.

Anishinaabe philosophy prioritizes ogemaag who are deferential and serve as leaders only for limited purposes and times. Ogemaag are true representatives who act only when and how instructed to do so by their constituents. Their decisions are rooted in cultural and traditional philosophies, including for example Mino-Bimaadiziwin (the act of living a good life), Inawendewin (relational accountability), Niizhwaaswii Mishomis/Nokomis Kinoomaagewinawaan (the Seven Gifts the Grandfathers or Grandmothers), and the Dodemaag (clans). I offer suggestions on how modern tribal government structures can be lightly modified to restore much of this philosophy.