Lunch in Indian Country CLE: Supreme Court Update on Indian Law [with Fletcher]

Supreme Court Update on Indian Law

Co-Sponsored by the State Bar of Arizona and the State Bar’s Indian Law Section

January 18, 2023, 12:00-1:00 MST

1.0 Total CLE Unit

Join Professor Matthew Fletcher as he reviews the most recent Supreme Court decisions affecting Indian Country.

Faculty:

Matthew Fletcher, Harry Burns Hutchins Collegiate Professor of Law, Michigan Law

 
Chairpersons:
Doreen McPaul, President, Tribal In-House Counsel Association
Virjinya Torrez, Assistant Attorney General, Pascua Yaqui Tribe

Register: https://azbar.inreachce.com/Details/Information/1661e72a-831b-45a2-ad84-a06a235557ee

SCOTUS Grants LDF v. Coughlin

Here is the order.

Cert stage briefs here.

Merits Stage Briefs in Arizona v. Navajo Nation/Dept. of the Interior v. Navajo Nation

Here:

All this water is Navajo.

Fletcher on the Dark Matter of Federal Indian Law

Please check out “The Dark Matter of Federal Indian Law: The Duty of Protection,” a draft of which is now available on SSRN.

Here is the abstract:

The United States and every federally recognized tribal nation originally entered into a sovereign-to-sovereign relationship highlighted by the duty of protection, a doctrine under international customary law in which a larger, stronger sovereign agrees to “protect” the small, weaker sovereign. The larger sovereign agrees to this duty of protection, in the American case anyway, in exchange for massive, occasionally unquantifiable amounts of land and resources, as well as the power to control the external sovereign relations of the protected sovereign. The smaller sovereigns, in this case, tribal nations, typically received protected reservation lands, hunting and fishing rights, small cash infusions, and the vague promise of protection.
What tribal nations have received so far in exchange for their lands and resources and sovereignty is a pittance compared to the value of that consideration. Justice Gorsuch noted in a recent case that tribal nations in Washington gave up millions of acres in exchange for “promises.” Those promises must mean something.
I call those promises the dark matter of federal Indian law.
The duty of protection owed by the United States to tribal nations is much like dark matter. The duty of protection was left undefined in Indian treaties. Yes, the treaties and other agreements that established a sovereign-to-sovereign relationship did provide for specific details about that relationship, most famously hunting and fishing rights or criminal jurisdiction. But most treaties and agreements are sparse, leaving open most of the details about that relationship. That’s the dark matter of Indian law.
This essay argues that the duty of protection between tribal nations and the federal government is law and that the judiciary has an obligation to enforce aspects of the duty of protection as understood by both tribal nations and Congress. The essay begins by describing the duty of protection as understood by tribal nations at the time of the origination of the duty and now. The essay then turns to how Congress and the Department of the Interior understands the duty of protection, at least since the start of the tribal self-determination era in the 1970s, and how the Department of Justice often undermines that understanding. Then, the essay explains that the dark matter of federal Indian law is the duty of protection, that the federal obligations to tribal nations and individual Indians is real, and that the duty of protection is enforceable. Finally, the essay shows how the United Nations Declaration of the Rights of Indigenous Peoples is a useful tool judges can use in adjudicating the scope of the unstated parts of the duty of protection.
This essay is an invited submission to the Maine Law Review Indian law symposium.

This paper was also the subject of the 2022 Rennard Strickland lecture at the University of Oregon Law School:

Native America Calling Show Today — The Fate of ICWA

Here.

Each side presented their oral arguments Wednesday to the U.S. Supreme Court for the most serious challenge to the Indian Child Welfare Act in recent memory. The decision in Haaland v. Brackeen will be a major force in the future of ICWA and the scope of tribal sovereignty. Today on Native America Calling, Shawn Spruceanalyzes the legal debate from a Native perspective with Matthew Fletcher (Grand Traverse Band of Ottawa and Chippewa Indians), law professor at the University of Michigan Law School and author of the Turtle Talk blog; independent journalist Suzette Brewer (citizen of the Cherokee Nation); and Dr. Sarah Kastelic (Alutiiq), director of the National Indian Child Welfare Association.