Muscogee (Creek) Nation

You have to love a court that starts the opinion so clearly:

The federal Indian Child Welfare Act (ICWA) and the Nebraska Indian Child Welfare Act (NICWA) provide specific procedures and requirements that apply in certain proceedings involving the custody and adoption of and termination of parental rights to Native American children. This case requires us to decide whether those procedures and requirements apply in a case in which a maternal grandmother sought to establish a guardianship for an Indian child over the objection of her daughter, the child’s mother. After interpreting the relevant statutory language, we conclude that the guardianship proceeding at issue was governed by ICWA and NICWA. In addition, we find that the grandmother did not make the showing required by ICWA and NICWA. We therefore reverse the order of the county court establishing the guardianship and remand the cause with directions to vacate the guardianship, dismiss the petition, and return custody to the child’s mother.

Citizen Potawatomi Nation and Muscogee (Creek) Nation Intervene in Oklahoma Gaming Compact Suit

February 10, 2020Matthew L.M. Fletcher

Here are the updated materials in Cherokee Nation v. Stitt (W.D. Okla.):

21 Citizen Potawatomi Nation Motion to Intervene

21-1 Complaint in Intervention

23 Muscogee (Creek) Nation Motion to Intervene

23-1 Complaint in Intervention

28 DCT Order Granting Motions to Intervene

Prior posts here.

Petitioner’s Brief in McGirt v. Oklahoma

February 6, 2020Matthew L.M. Fletcher

Here:

Petitioner’s Brief

New Fletcher Paper, “Textualism’s Gaze”

January 31, 2020Matthew L.M. Fletcher

Available on SSRN, here.

Here is the abstract:

In recent years, perhaps because of the influence of Justice Scalia, the Supreme Court appears to place greater emphasis on texts than ever before. “We’re all textualists now,” Justice Kagan declared in 2015. But it is one thing to say a court will prioritize the text. It is another thing to choose which text is to be prioritized.

Follow the textualism of constitutional interpretation and one sees judges prioritize the public understanding of the privileged white men in power at the time of the framing of the constitutional text. Follow the textualism of federal statutory interpretation and one sees judges prioritize the text exclusively, and if the judges engage with the legislative history of the statute they will engage with the public understanding of the legislators who enacted the law, again, largely privileged white men. The victory of textualism is not necessarily in the outcomes, but in significantly narrowing the scope of evidence available to interpret the text, in some cases to almost nothing but the bare words of the statute. Women, persons of color, and other marginalized persons and entities are almost never relevant to the textualist’s gaze.

The narrow focus of the textualist’s gaze also warps how Indian law matters are decided. The judiciary rarely considers how the governments and people most affected by the text — Indian tribes and individual Indians — understand the meaning of the text. The judiciary, whether it intends to or not, considers Indians and tribes as extraneous to the interpretive process.

U. Chi. Law Review Podcast on the Murphy/McGirt Cases

January 15, 2020Matthew L.M. Fletcher

Here is “Briefly 3.10 – Is Half of Oklahoma Tribal Land?”

From the site:

This is Briefly, a production of the University of Chicago Law Review. Today we are discussing two cases pending before the Supreme Court, which will determine whether roughly half of the land in Oklahoma is actually an Indian Reservation . We’re joined by Elizabeth Reese, a Bigelow Fellow at the University of Chicago Law School, and Matthew L.M. Fletcher, Professor of Law and Director of the Indigenous Law & Policy Center at Michigan State University College of Law. Music from bensound.com.