The Law of American Indians Posts
One Small Step for Native American Water Rights
This article was originally published on Reason.com on January 20, 2023.
Un-Erasing American Indians and the Indian Child Welfare Act from Family Law
This article discusses how family law classrooms can incorporate ICWA into conversations on family law as a step in eliminating bias in the legal academy and in the profession against American Indians.
The Terms of their Deal: Revitalizing the Treaty Right to Limit State Jurisdiction in Indian Country
Federal recognition of inherent American Indian tribal sovereignty has been memorialized in countless treaties, congressionally ratified agreements, and executive orders setting aside reservations throughout the United States. This article seeks to demonstrate that the Court’s treaty-based analysis of tribal sovereignty should be applied by the judiciary moving forward.
Addressing the Oliphant in the Room: Domestic Violence and the Safety and American Indian and Alaska Native Children in Indian Country
In this paper, we argue that Section 904 is far too narrow to protect child victims of domestic violence and ancillary crimes in Indian country and must be amended to allow tribal courts to exercise special domestic violence criminal jurisdiction in Indian country.
The 16th Annual Rennard Strickland Lecture
The University of Oregon School of Law hosted the 16th Annual Rennard Strickland Lecture Series, featuring a talk by Matthew L.M. Fletcher of University of Michigan Law School.
Closely divided court scrutinizes various provisions of Indian Child Welfare Act
The Supreme Court of the United States will hear arguments regarding the Indian Child Welfare Act (ICWA).
Teaching Indian Law in the 21st Century
In the 21st century, many law schools offer Indian law but generally are still far behind the curve. Worse, when it is offered, the Indian law canon tends to be taught in ways that ignore contemporary tribal agency by emphasizing historical events over modern issues. This article gives examples of tribal court cases and tribal statutes law teachers can use to incorporate Indian law into virtually any common law course.
Preemption, Commandeering, and the Indian Child Welfare Act
The Supreme Court has agreed to review constitutional challenges to the Indian Child Welfare Act brought by the State of Texas and three non-Indian foster families in the October 2022 Term. We argue that the anticommandeering challenges against ICWA are unfounded because all provisions of ICWA provides a set of legal standards to be applied in state which validly and expressly preempt state law without unlawfully commandeering the States’ executive or legislative branches.
Using Peacemaking Circles to Indigenize Tribal Child Welfare
This Article outlines the ways in which the modern tribal child welfare system has been structured to compartmentalize families and perpetuate historical federal policies of Indian family separation. This Article then suggests that circle processes are a framework for re-Indigenizing the tribal child welfare system to not just improve outcomes, but to also honor the interconnected, responsibility oriented worldview of Indigenous communities.
Testimony before the Commission on Native Children
This letter and powerpoint were prepared at the request of the Alyce Spotted Bear and Walter Soboleff Commission on Native Children in advance of a hearing on jurisdictional issues related to the Indian Child Welfare Act.