The first legal casebook dedicated entirely to tribal law is the fruit of seven years of work by Dr. Matthew L.M. Fletcher, an associate professor of law and director of the Indigenous Law and Policy Center at Michigan State University College of Law. American Indian Tribal Law, recently published by Aspen, is an 864-page volume that traces the development of tribal justice systems from the pre-contact era, through colonization, and into the modern age of self-government. It describes modern tribal government activities, explores how American Indian nations resolve disputes, and surveys more than 300 tribal courts nationwide. The book examines flashpoints in tribal law, including the Cherokee Freedmen citizenship disputes, same-sex marriage in Indian country and constitutional crises in tribal governments. Fletcher, who is also the keeper of Turtle Talk, the ultimate go-to website for legal documents involving Indian law, spoke about American Indian Tribal Law with Indian Country Today Media Network earlier this year.
Why did you decide to undertake such a huge project, and how did you go about it?
Before I started teaching in 2004 it was difficult to find Indian law to begin with and difficult to have the big pictures about what tribes were doing. Once I became a professor in 2004 I started collecting and organizing materials, and I created a couple of filing cabinets full of cases, constitutions, law reviews, articles and commentaries on tribal law. I started going to old stinky bookstores and finding really old anthropological materials, which I look at with a grain of salt because anthropologists weren’t the greatest scholars around. I couldn’t really spend a lot of time on it until after I got tenure because I needed to write and publish a lot of stuff. Then once I had all the material selected it sort of wrote itself, which was nice.
In the chapter on constitutions, you note that the Interior secretary has to approve tribal constitutions. Isn’t there a contradiction in having the secretary approve the constitutions of sovereign nations?
It’s absolutely a contradiction! There’s a federal statute that comes from the 1934 Indian Reorganization Act that says a tribe’s first constitution must be approved by the Interior secretary. Typically the first constitution will have a provision that says the tribe can come back to the secretary and amend its constitution, so what tribes do is they have a secretarial election and go through the whole rigmarole to remove just one provision from their constitution that says the amendment must be approved by the secretary. Once they do that, they have their own process, and the tribal constitution becomes more indigenous, more Indian.
What kind of impact will the Tribal Law and Order Act have on tribal judicial systems?
I think you’ll see tribes that want to expand their ability to prosecute and sentence people looking more like federal courts because there will be more federal court review of their convictions. It’s a good thing in terms of tribes’ trying to take a bit more control over their reservations, especially in the context of how much crime is going on there and the whole appalling issue of violent crimes against women. This is a very small first step toward an ultimate solution which would be the tribes’ having total jurisdiction over such crimes.
What do you see happening in the future in terms of how tribal government reform will be accomplished?
The issues are, well, just everything. I have another book coming out (Cases and Materials in Federal Indian Law, Sixth Edition, by David H. Getches, Charles F. Wilkinson, Robert A. Williams and Matthew Fletcher, WestLaw Publishers) that focuses on nation building. So much federal Indian law over the past 50 years delineates the contours of what tribes can and cannot do, and to some extent people forget that now that tribes have the ability to do things, they actually have to do those things. So as tribes begin to develop their nations and ability to govern, I think the American Indian Tribal Law book is important so that people can find out what other tribes are doing and get a sense of what the trends are in terms of constitutional civil rights, constitutional structure and administrative procedures, which is absolutely critical.