In celebration of Native American History Month, Jeffrey Rosen was joined by Keith Richotte Jr., author of the forthcoming book The Worst Trickster Story Ever Told: Native America, the Supreme Court, and the U.S. Constitution and Matthew L.M. Fletcher, author of The Ghost Road: Anishinaabe Responses to Indian Hating to explore how Native American law has evolved from the Marshall Court to the present day—tracing how the Court came to grant the federal government broad authority over tribal affairs, and how tribes have begun to reassert their sovereignty under the Roberts Court.
This program was originally streamed live as part of the NCC’s America’s Town Hall series on November 4, 2024.
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This episode was produced by Lana Ulrich, Tanaya Tauber, Samson Mostashari, and Bill Pollock. It was engineered by Greg Schekler and Bill Pollock. Research was provided by Samson Mostashari, Cooper Smith, Gyuha Lee, Matthew Spero, and Yara Daraiseh.
Participants
Keith Richotte, Jr. is the director of the Indigenous Peoples Law and Policy Program and professor of law at the University of Arizona’s James E. Rogers College of Law. Richotte has served his tribal nation, the Turtle Mountain Band of Chippewa Indians, as an associate justice on the appellate court since 2009 and also serves as the chief justice of the appellate court of the Spirit Lake Nation. He received his JD from the Minnesota Law School, his doctorate from the University of Minnesota, and his LL.M. from the IPLP Program.
Matthew L.M. Fletcher is the Harry Burns Hutchins Collegiate Professor of Law at Michigan Law. He teaches and writes in the areas of federal Indian law, American Indian tribal law, Anishinaabe legal and political philosophy, constitutional law, federal courts, and legal ethics. He also sits as the chief justice of the Pokagon Band of Potawatomi Indians, the Poarch Band of Creek Indians, and the Grand Traverse Band of Ottawa and Chippewa Indians.
Jeffrey Rosen is the president and CEO of the National Constitution Center. Rosen is also a professor of law at The George Washington University Law School and a contributing editor of The Atlantic. His most recent book is The Pursuit of Happiness: How Classical Writers on Virtue Inspired the Lives of the Founders and Defined America.
Additional Resources
- Keith Richotte Jr., The Worst Trickster Story Ever Told: Native America, the Supreme Court, and the U.S. Constitution (2025)
- Matthew Fletcher, The Ghost Road: Ashinaabe Responses to Indian Hating (2020)
- Matthew Fletcher, “Muskrat Textualism,” Northwestern Law Review (2022)
- Matthew Fletcher, “The Dark Matter of Indian Law: The Duty of Protection” (June 2023)
Excerpt from Interview: Matthew L.M. Fletcher highlights tribes' growing self-determination and governance, likening them to the resilient muskrat, as seen in the transformative McGirt v. Oklahoma (2020) case.
Matthew L.M. Fletcher: I got the idea to call the kind of textualism that you see in jurisprudence that you see in a case like Oliphant, which predates Scalia a little bit. This was a Justice Rehnquist opinion from the metaphor of the canary in a coal mine, which really Felix Cohen, who was sort of the grandfather of federal Indian law, wrote about in the 1940s and '50s, and he described Indian tribes as like a canary in a coal mine of American democracy. So, if Indians are the canary and they start to wither and die, that's not a good sign for the future of American democracy, and it was a very effective metaphor at the time.
The problem of course, is that it's a canary. A canary inside of a cage. It has no agency, it has no power, no independent thought of its own. And if you look at some of the older Supreme Court cases, and even still today, some in the last few years, even that suggest that Indian tribes are just, they're not important. They don't make their own decisions. They're not competent to make their own decisions. Keith talks a lot about his book and the story of the guardian ward relationship that served as a metaphor for the longest time in federal Indian law, how the federal government treated Indian tribes and the Supreme Court treated tribes as wards, as a, metaphorically speaking, but often literal, and that a ward doesn't have the power, for example, to sue its own guardian It doesn't have the right to go to court. It's legally incompetent under the law.
I like the metaphor more of the muskrat. The muskrat is also a Nanabozho story. And that the story kind of goes along the lines of Nanabozho, the trickster who can do good and bad things, sort of causes the end of the world. And a giant flood engulfs all of what we call Anishinaabe-kwe, the world of the Anishinaabe people. And Nanabozho is clinging to a log along with some other animals and comes up with this idea because he, Nanabozho is magical, that if he just gets a couple of grains of sand or dirt, he can recreate an island, say, we'll call it Turtle Island. And he just needs somebody to go down deep into the water and bring up some dirt. And all the different divers go in, birds, different kinds of floating animals like ducks. And they come up, they all come up gasping for air saying, it's too far down. We'll never get to ground again.
And the tiniest weakest creature, the muskrat says, I'll give it a shot. And everybody laughs at the muskrat and says, you don't have a chance. You're just gonna die. And the muskrat goes down, naturally comes back with a dying, gasping breath, in the hands, some dirt to Nanabozho who then recreates the world, Turtle Island, or some people call it Mackinac Island here in Michigan. And the idea of the muskrat, unfortunately, the muskrat dies in the story. I don't like that part, but the muskrat has agency and can make decisions for their own and a kind of power and influence that often is ignored at first, but then sort of becomes influential. And one of the interesting things that's been happening in the last 50 years or so with Indian affairs is that tribes have actually been self-determining for quite a while, enabled in part by Congress, but really doing their own work to develop what their governments should look like. They have some more resources. They've been very creative in how local and bigger larger regional governments can actually do things to help their citizenry to work on environmental issues, to work on economic development issues.
And tribes are sort of this interesting disruptive force in the American polity and just in really, really in this century. They're like the muskrat. They're very much like a government that mostly is overlooked and often treated as sort of second or third rate, but they're doing some really amazing things with restorative justice and environmental protection. And it would be nice, and I think the McGirt case from, which is really a case about reservation boundaries and sort of old treaty rights from tribes in Oklahoma, the McGirt decision really is. Really embraces the idea that tribes are real governing entities.
And one of the interesting things that happened in that case is it really is a clash between the state of Oklahoma and the tribes in Oklahoma. And Oklahoma in some respects as a state government has sort of been under governing much of the rural territory areas that were historically reservation lands of Indian tribes. And the tribes in the past several decades have stepped in the shoes of what Oklahoma was doing before, reopening rural hospitals and creating regional economic growth activities. Usually, tribes are the largest regional employer in a lot of rural areas of the United States. And that's the kind of thing that I think we're heading toward in terms of our Indian law jurisprudence, at least I hope it is.
Excerpt from Interview: Keith Richotte Jr. critiques the U.S. government’s plenary power over Native peoples, advocating for a relationship of consent, constitutional grounding, and trust responsibility.
Keith Richotte Jr.: Well, so when we think about the theory of government in the United States, and this is, again, I recognize a bit of a 10th grade civics class explanation of what's going on here, but it's all founded on this notion or idea of consent, right? That we as autonomous individuals cede some of our autonomy to a government to protect us and our rights and our property and so on and so forth. So everything is based on this notion or idea of consent. The Constitution is founded on this basic understanding of what the relationship between a government and its citizenry should be. And so, the problem with plenary power is there's no connection to consent whatsoever, right? That there's just nothing that connects this massive federal authority, which is above and beyond what we understand the Constitution authorizing the federal government to do to its citizenry or to act as it concerns its citizenry.
So there's just nothing there, right? It's just this big thing that's not connected to the Constitution, not really, when you actually look at the history. And so, one of the things that you need if we're going to, one of the things that we need if we're going to rebalance this relationship is to center this idea of consent in the same way that it is centered in our general theory of governance in the United States. So, that's one thing that needs to happen. We just have to put that at the forefront and quit letting us think that this plenary power is just a thing that the United States should have over Native peoples. The second thing is some sort of connection to the Constitution, because I don't think you're going to convince any justice of the Supreme Court, right? That the relationship should not in some way be tied to the Constitution. And so, there are folks who argue international law principles should maybe rule how this relationship is.
And I don't think that they're necessarily wrong. I just think they're gonna have a real tough time convincing people who figured out how to get onto the Supreme Court that the Constitution doesn't need to be at the center of what this relationship is. And so then we have to find a source in the Constitution that allows for the expression of consent that helps to rebalance this relationship. And in the book, I talk about the treaty power and how we might think about how that works in this context, and thinking about how if we allow the treaty power to allow for this expression of consent, we will be much closer to where we wanna be in terms of actually having a constitutional source and having a scope of authority that makes a little bit more sense. But in order to do that, we need this third element, which is an understanding that the United States has taken on an obligation to Native America. And so, we have this thing in federal Indian law called the trust responsibility.
And under this trust responsibility, the federal government has obligated itself to act on the, to the betterment of Native America, how they go about doing that, and under the circumstances under which they can be held to that obligation is a whole thing unto itself and takes up its two days in federal Indian law class, right? But there is this sense that particularly through treaty relationships and other means, the United States has obligated itself, and tribal nations have also obligated themselves to a relationship where both parties are going to work to the betterment of each other. And so, by placing that in a less hierarchical structure, and more like an older brother, younger brother type of, or older sibling, younger sibling type of system, we can perhaps better frame how we ought to think about what this relationship really should look like.
And so, then if we have those elements, if we have a consent at the center of our analysis, and if we have a rooting in the Constitution that makes much more sense than the Commerce Clause, and if we approach this from the notion or idea that there is an obligation that the United States has taken on to do the right thing for Native America, then perhaps we can rebalance this relationship in a much more appropriate and reasonable way, other than to say the federal government has this massive plenary power, and that's just it, because it's connected to the Commerce Clause. Which, by the way, is serving Native America now, is for the most part doing a good thing in the self-determination era. But as we talked about, the pendulum switches, right? That it's going to shift. And when it does shift, what are we going to have then if plenary power is still at the center of the analysis? So, it is critical, in my view, to rethink how this relationship ought to exist.
And as to how, if it can work or not, I don't have a crystal ball, right? I can't say for sure, right? If I did have a crystal ball, maybe I'd finally find out if my Vikings would ever win a Super Bowl, and all this time I've invested in would be worth it. But I do think that it is worth the effort to make the argument, because I do think that the Supreme Court recognizes that the story it's telling is not true, that it is not accurate, that it does not align with whatever principles any justice might have, and how to read the Constitution. So, that if there is a pathway to think about how to rebalance this relationship in a way that makes sense to a Supreme Court justice and to other justices and other lawyers and people operating in the field, we might actually have the opportunity to rid ourselves of the plague that is plenary power.
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