Navajo Nation

Paul Spruhan on the Legal History of Slavery in the Reconstruction Southwest

Matthew L.M. Fletcher

Paul Spruhan has posted “The Unfulfilled Liberation: The Navajo Nation, the Federal Government and the Legal History of Indian Slavery in the Reconstruction Southwest” on SSRN.

Here is the abstract:

The article discusses the legal history of enslavement of American Indians, particularly Navajos, in territorial New Mexico during the Civil War and Reconstruction. It focuses Indian slavery within the relationship between the Navajo Nation and the Federal Government from 1846 to 1877, spanning the federal occupation of New Mexico in the Mexican-American War to the end of Reconstruction. It discusses in detail the role of the Army, the Office of Indian Affairs, and Congress in declaring the legal emancipation of Navajos and other Indian slaves but failing in implementing true liberation. It also discusses the role of the slavery issue in the negotiations and implementation of the Navajo Treaty of 1868, and the failure of General William Tecumseh Sherman and other federal officials to liberate Navajo slaves after the execution of the Treaty and the return of Navajos to their homeland. The article concludes with a discussion of why the Federal government tolerated the continued existence of Navajo slavery despite the end of southern slavery, and its place in the longer arc of federal assimilation policies against Indian people.

New Scholarship on Electrifying the Navajo Nation

Matthew L.M. Fletcher

Carington Lowe & Michael Hamersky have published “The Tribal Energy Act: A Necessary Step Toward the Electrification of the Navajo Nation” in the Pepperdine Law Review.

Here is the abstract:

The Navajo Nation stands as a sovereign nation, yet many families still lack access to electricity because of enduring historical, structural, and regulatory barriers. This Article identifies the legal and technical barriers that have hindered meaningful progress and argues that supplementing the utility grid with distributed energy resources, such as biodigesters, offers a viable path toward electrification, particularly for remote and rural communities within the Navajo Nation. Biodigesters convert organic waste generated through community practices, such as sheep raising, into biogas through an anaerobic process. This form of energy reflects circular economy principles while also aligning with Diné cultural practices of environmental harmony and stewardship. As a flexible and scalable energy source, biodigesters can be adapted to meet the diverse needs of these communities. 

With these barriers in mind, this Article examines the Tribal Energy Act and the authority it grants the Navajo Nation to implement new regulations to encourage clean electrification. It further proposes targeted revisions to existing regulatory frameworks to facilitate the wider adoption of distributed energy resources and promote greater energy access across the reservation.

New York Family Court Grants Full Faith and Credit to Navajo Nation Court Order in UCCJEA/ICWA Matter

Matthew L.M. Fletcher

Here is the order in K.J. v. S.A. (N.Y. Fam. Ct.).

New Mexico Federal Court Orders Rule 19 Dismissal of Suit + Exhaustion of Tribal Remedies in Child Custody Dispute

Matthew L.M. Fletcher

Here are the materials in Mundo v. Vandever (D.N.M.):

4 Amended Complaint.pdfDownload
24 Navajo Motion to Dismiss.pdfDownload
35 Mundo Opposition to 24.pdfDownload
37 Navajo Reply ISO 24.pdfDownload
68 DCT Order.pdfDownload

Navajo Family Sues over Tribal Police Killing

Matthew L.M. Fletcher

Here is the complaint in Begaye v. United States (D.N.M.):

1 Complaint.pdfDownload

Brenna Clani-Washinawatok Appointed to Eleventh Judicial District in New Mexico

Matthew L.M. Fletcher

Press release here:

Farmington attorney becomes first Native American district court judge in Eleventh Judicial District.pdfDownload

Tenth Circuit Affirms Dismissal of Effort to Relitigate San Juan Basin Water Rights

Matthew L.M. Fletcher

Here is the unpublished opinion in Clark v. Haaland.

Briefs:

Opening Brief

Federal Brief

Navajo Brief

New Mexico Brief 

Reply

Virginia Federal Dismisses FMLA Suit against Navajo Business

Matthew L.M. Fletcher

Here are the materials in Butrick v. Diné Development Corp. (E.D. Va.):

1 Complaint.pdfDownload
7 Motion to Dismiss.pdfDownload
12 Opposition.pdfDownload
13 Reply.pdfDownload
18 DDC Supplemental Brief.pdfDownload
19 Butrick Supplemental Brief.pdfDownload
25 DCT Order.pdfDownload

Tribal Nations Move to Intervene to Protect Baaj Nwaavjo I’tah Kukveni

Matthew Campbell

Motion to Intervene in Arizona State Legislature v. Biden

Motion to Intervene in Heaton v. Biden

More here.

The Attack on Talton v. Mayes During the Navajo Peyote Ban Case

Matthew L.M. Fletcher

Arthur Lazarus, the general counsel of the Association on American Indian Affairs (and the drafter of the original bill that became the Indian Child Welfare Act), filed amicus briefs in a suit by a Navajo tribal citizen challenging the power of the Secretary of the Interior to approve the Navajo Tribal Council’s ban on peyote use by the Native America Church. The case was filed as Oliver v. Seaton (D.D.C.):

The challenge really was against the Navajo ban, but Mr. Oliver challenged the Secretary’s approval of the ban, alleging that the approval violated the Exercise Clause. An important aspect of the AAIA’s amicus brief was that Talton v. Mayes, which seemingly held the federal Constitution did not regulate tribal power, did not govern the violation of “fundamental rights.”

There’s an interesting effort to compare tribal nations to the American territories here. We know from cases as recent as Puerto Rico v. Sanchez-Valle regarding Puerto Rico’s sovereignty that tribal sovereignty is more robust that Lazarus credits here. Note the conclusion, invoking the axiom that the “Constitution . . . follows the flag,” usually invoked in war crimes commission law like in the Guantanamo Bay cases.

Needless to say, the Navajo Nation was upset that the AAIA threw its support behind the Native American Church and not the tribe.

Mr. Oliver ultimately did not prevail. See Oliver v. Udall, 306 F.2d 819 (D.C. Cir. 1962).