Minnesota Law Review – Turtle Talk

Daniel Rice on the Moral Complacency of Federal NDN Law

June 17, 2025Matthew L.M. Fletcher

Daniel B. Rice has posted “The Moral Complacency of Federal Indian Law,” forthcoming from the Minnesota Law Review, on SSRN.

Here is the abstract:

For all its association with historical tragedy, federal Indian law remains thoroughly amoral. The field draws little distinction between horrific and laudable traditions. In sharp contrast with the Court’s equality doctrines, Indian law continues to rest on explicit structural subordination. Its core precepts tolerate the worst forms of historical treachery and cultural annihilation, treating such practices as legally generative in the present. This Article identifies Indian law’s moral vacuity as an unexplained and unjustified aberration. It urges the Court to speak and theorize about Indian law in a register befitting the subject’s moral gravity.

The Article offers a trio of explanations for Indian law’s enduring amorality—ones focused on reliance interests, strategic suppression by pro-tribal actors, and a desire to avoid broadcasting uncomfortable truths. It finds these reasons insufficient to justify the Court’s nonrecognition of historical evil. Although full decolonization is by now infeasible, the tonal shift I propose would help distance the Court from colonialism’s wrongs and un-skew the normative atmosphere in which lawyers debate the past’s continuing effects. It would also facilitate incremental reforms that could improve tribes’ litigation prospects dramatically.

In recent years, Justice Gorsuch has shown that Indian law’s moral complacency need not be accepted as natural or inevitable. But I question his insistence that the field can be set aright by adhering to original textual bargains. It is the ethical narratives to which Gorsuch subscribes, rather than his methodological commitments, that hold the promise of tempering Indian law’s most outrageous features. I also critique Gorsuch’s recent suggestion that Indian law contains an “anticanon” whose repudiation would rid the doctrine of its worst excesses. Moral socialization in this field should occur through the rejection of ideas, not the select vilification of cases with complicated legacies.

Neoshia Roemer on Equity for American Indian Families

May 6, 2025Matthew L.M. Fletcher

Neoshia Roemer has published “Equity for American Indian Families” in the Minnesota Law Review. PDF

Here is the abstract:

For the better part of two centuries, the cornerstone of federal Indian policy was destabilizing and eradicating tribal governments. In the process, federal Indian policy also dismantled American Indian families via child removal. Attempting to equalize American Indians through the practice of assimilation, decades of Indian child removal policies destroyed Indian families. In 1978, Congress responded to these horrors by passing the Indian Child Welfare Act (ICWA), a revolutionary law that was responsive to its trust responsibility to American Indian Tribes. By providing for the best interests of Indian children, heightened protections for parents of Indian children in certain child custody proceedings, and vesting Tribes with a legally recognizable interest in their children’s futures, Congress issued a referendum on equality for American Indians and the very nature of colonialism.

For nearly fifty years, ICWA has governed certain child custody proceedings involving Indian children in state courts. In 2018, a group of state and private actors decided to challenge ICWA’s constitutionality in Haaland v. Brackeen. Among their claims, these parties alleged that ICWA violated the equal protection rights of potential adoptive parents who are non-Indian and that ICWA placed Indian children at a disadvantage. However, just beneath the surface of these claims lies the real allegation: American Indian children should be available for the “good families” or for the “right kind of families” to adopt them. By claiming American Indians had special rights via ICWA, these plaintiffs hoped to re-introduce a version of equality that allowed generations of federal, state, and individual actors to enact assimilationist policies. Ultimately, the goal of equality in this area remains to ensure that “good families” maintain access to Indian children. Contrary to congressional goals, Indian children remain a commodity in demand for “good families” looking to save Indian children.

Blending family law, federal Indian law, and constitutional law, this Article evaluates the fallacy in applying the Equal Protection Clause to claims about ICWA. In doing so, this Article demonstrates that ICWA contains an anti-colonial equity principle that is contrary to the equal protection doctrine—a doctrine that Congress knew could never apply when the matter came to accessing the rights of American Indian families against those of the settlers, primarily because the rights of American Indian individuals are intricately linked to the federal trust responsibility. This Article argues that given ICWA’s character as an anti-colonial statute, applying the Equal Protection Clause to it will only stand to yield absurd results in furtherance of a colonial project that Congress has abandoned. Instead of the equality the Supreme Court promises through its equal protection doctrine, ICWA’s mandate requires equity.

Grant Christensen on Article III Courts’ Power to Adjudicate Tribal Inherent Powers

March 22, 2023March 22, 2023Matthew L.M. Fletcher

Grant Christensen has posted “Article III and Indian Tribes,” forthcoming in the Minnesota Law Review, on SSRN.

Here is the abstract:

Among the most basic principles of our federal courts is that they are courts of limited jurisdiction, exercising only those powers delegated to them in Article III. In 1985 the Supreme Court inexplicably created an exception to this constitutional tenant, and unilaterally declared a plenary judicial power to review the exercise of an Indian tribe’s inherent sovereign authority. This exception is unmoored from all other Supreme Court precedent outside Indian law, and unjustifiably assumes the judicial power in direct contrast to the Court’s ordinarily thoughtful jurisprudence on Article III and deference to the separation of powers.

This article concludes that the Supreme Court was wrong in 1985 when it assumed a plenary judicial power over Indian affairs. The consequences are profound, and suggest a reconceptualization of the entire field of Indian law. Canon creating cases like Oliphant, Montana, and Cabazon should never have been decided because the exercise of a tribe’s inherent authority does not create a federal question conferring subject matter jurisdiction on the federal courts. The inherent power of Indian tribes to criminally prosecute or civilly regulate non-Indians in Indian country should not subject them to the judicially imposed limits set by the Supreme Court, because the Court lacks subject matter jurisdiction to decide those cases. Until a treaty or statute creates an affirmative basis for federal court review, an Indian tribe’s inherent powers are subject to the checks and balances imposed by tribal government and no others.