ASKED & ANSWERED: Matthew L.M. Fletcher on Indigenous Law

By Sheila Pursglove Legal News Matthew L.M. Fletcher is a professor at Michigan State University College of Law and director of the Indigenous Law and Policy Center. He is a member of the Grand Traverse Band of Ottawa and Chippewa Indians, located in Peshawbestown, Mich. He is the reporter for the American Law Institute's Restatement, Third, The Law of American Indians. He sits as the chief justice of the Poarch Band of Creek Indians Supreme Court and also sits as an appellate judge for the Grand Traverse Band, the Hoopa Valley Tribe, the Lower Elwha Tribe, the Nottawaseppi Huron Band of Potawatomi Indians, the Pokagon Band of Potawatomi Indians, and the Santee Sioux Tribe of Nebraska. A graduate of the University of Michigan and U-M Law School, Fletcher has worked as a staff attorney for the Pascua Yaqui Tribe, the Hoopa Valley Tribe, the Suquamish Tribe, and the Grand Traverse Band, and he has been a consultant to the Seneca Nation of Indians Court of Appeals. He is the primary editor and author of the leading law blog on American Indian law and policy, Turtle Talk. Pursglove: Is Indigenous Law a good field for law students? Fletcher: For many Native students, Indian law is the reason they chose law school. Few other students have a chance to take classes where the history of their tribes and families is embedded in the cases and statutes we teach. For any student, it's a good field, too. Indian gaming is a $30 billion a year business. Indian country natural resources extraction is probably even larger than that, or soon will be. Tribal governments routinely are the largest employers of their regional economies. We never have much trouble placing our alums in Indian law jobs if they want to do that work. It's a hugely growing field. Pursglove: Why are attorneys that understand Native American culture, and how it impacts legal issues, in high demand? Fletcher: Tribal government and enterprise clients usually are American Indian people, and they want to hear the views and advice of people who have shared many of their same experiences. Also, the tribal client differs from the fundamental goals of corporate and state or federal governmental clients. Tribes are not wealth-maximizing entities with pressures from shareholders to prioritize profit; tribes may pass up opportunities for revenues because of the social or environmental costs. And tribes are governments, so their goals are similar to those of other governments, to maximize governmental revenue and services. But tribal governmental constituencies are more narrow than other governmental constituencies. In other words, there is no Citizens United-inspired relationship between tribes and business entities, and no Tea Party-inspired efforts to gut government services. And tribes must do all of this without a tax base similar to that enjoyed by states and the federal government. Pursglove: What were the main issues in this field in the past year? Fletcher: The main issues always involve tribal efforts to expand their governmental revenue. This past year saw the beginnings of a backlash against tribal efforts to engage in what they're calling e-commerce, which includes things like payday lending, internet gaming, and other electronic business activities. Tribes usually try to avoid state regulation by asserting their immunity from state authority, and the Supreme Court decided a case affirming tribal immunity this year captioned Michigan v. Bay Mills Indian Community. Pursglove: What are the main challenges in the coming year? Fletcher: The same as any other year, trying to expand governmental revenue and provide adequate services to tribal members and other reservation residents. Gaming and resources extraction are beneficial to some tribes but certainly not all. Indian people are the poorest people in the U.S., with all of the problems associated with poverty. Pursglove: What is the source and scope of federal, state and tribal authority in Indian land? Fletcher: Federal authority comes from the treaty relationships with Indian nations, where Indian nations agreed to come under the protection of a superior sovereign in exchange for the preservation of their internal autonomy as Indian tribes and people. State authority comes only from Congress. Tribal authority predates the Constitution and is inherent, but subject to the tribes' relationship with the United States. Pursglove: What are the issues of tribal gaming and economic development? Fletcher: Indian gaming revenues have plateaued and are under threat from state law authorized gaming operations. So tribes are exploring moving beyond the regular brick and mortar model of gaming into the Internet realm. How that pans out will drive the future. Pursglove: What are the main issues in tribal policy and governance? Fletcher: There are 567 federally recognized Indian nations and we all need to learn from each other. Some tribes do things very well and creatively, and others do not. Tribes want to govern tribal members and nonmembers like any other government, but they have to earn that authority. Until tribes realize that sovereignty is not granted, but instead earned, there will continue to be serious growing pains. Pursglove: What are the main issues involving treaty rights? Fletcher: Climate change and environmental degradation are destroying the habitats of animals and plants that tribes relied upon and protected in treaties. Pursglove: How does a study of Native American culture and law also impact understanding of international indigenous peoples? Fletcher: There are some commonalities, but each indigenous nationality can learn from each other by learning how other nations' relationships with Indigenous peoples evolve. For example, how nations adopt and implement the United Nations Declaration on the Rights of Indigenous Peoples is instructive. The U.S. is great from a relative standpoint in recognizing tribal governance authority, especially compared to Canada. However, compared to Canada, the U.S. is terrible in remediating ancient land claims and modern environmental and cultural claims. Pursglove: What are views on same-sex marriage in Indian Law? Fletcher: I think tribal governments can be a leader in this area, and a few have by adopting marriage equality statutes. How those tribes went through the process to enact those statutes can be a great teaching moment for political scientists, because it varies wildly from that in the various states. The tribes out there that have gone in other direction-Cherokee, Navajo, Eastern Cherokee, etc.-should know they are on the wrong side of history. Pursglove: What do you hope for the next decade? Fletcher: I hope for greater progress in the things that tribes do best, provide governmental services to Indian country residents. Pursglove: What do you hope for the next generation? Fletcher: I hope that the next generation recognizes that the best hope for Indian people is to govern better than the states and the federal government. The 20th century was about reasserting tribal sovereignty. The 21st century is about reimaging what all that power means and using it to govern in a manner that our ancestors would have approved. Published: Thu, Jan 29, 2015

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