The American Law Institute Approves Restatement of the Law, The Law of American Indians

PHILADELPHIA – ALI members voted today at The American Law Institute’s Annual Meeting to unanimously approve Restatement of the Law, The Law of American Indians. This is the first Restatement on this important area of law. The project Reporters are Matthew L.M. Fletcher and Wenona T. Singel, both of Michigan State University College of Law (MSU Law), and Kaighn Smith, Jr., of Drummond Woodsum.

MSU Foundation Professor Fletcher directs the Indigenous Law and Policy Center at MSU Law. In addition to his prolific scholarship in the area of Indigenous Law, he provides frequent media commentary and sits as an appellate judge for many tribes. He is a member of the Grand Traverse Band of Ottawa and Chippewa Indians.

Associate Professor Singel serves as associate director of the Indigenous Law and Policy Center. She was previously deputy legal counsel for the office of Michigan Governor Gretchen Whitmer, advising Governor Whitmer on tribal-state affairs. Professor Singel, an enrolled member of the Little Traverse Bay Bands of Odawa Indians, was the first tribal citizen in Michigan’s history to hold that position.

Their selection to lead the Restatement reflects Professors Fletcher and Singel’s standing as leaders in legal academia, and their ongoing commitment to advancing knowledge in a field that is often poorly understood. A Restatement is a prestigious secondary source of law authored by experts in a specific area of law: usually highly regarded academics, judges, and lawyers. Restatements reflect the law as it currently stands, and are, in the words of the ALI, “primarily addressed to courts, aiming at clear formulations of common law and its statutory elements.” The exacting process of producing a Restatement results in a profoundly influential final product; hundreds of thousands of court decisions cite Restatements.

The customary complexity of producing a Restatement was compounded by the fact that this was the first Restatement in the area of Indian Law. Reporters Fletcher, Singel, and Smith organized the work into six chapters: Federal–Tribal Relations, Tribal Authority, State–Tribal Relations, Tribal Economic Development, Indian Country Criminal Jurisdiction, and Natural Resources.

“This project is generally about Federal Indian Law,” explained Fletcher. “Federal Indian Law is the relationship between the United States, Indian tribes, and state governments. The first three chapters provide the big picture about federal, tribal, and state powers and prerogatives in the context of Federal Indian Law. Many of these principles have been around since the founding of the United States and really since the beginning of the constitutional era in 1789, but they are not necessarily well known. In chapter one, the project begins with a discussion of federal plenary power and all of the obligations the federal government has toward Indian people and Indian tribes. The project then covers the inherent powers of Indian tribes that federal law acknowledges, and also the state powers and the interaction primarily between states and local governments and tribes and tribal citizens.”

“While we were working on the project, it became clear that we needed to amend our original plan and add other topics,” continued Singel. “There is a chapter on tribal economic activity, both describing tribes as economic actors and as economic regulators; one on Indian country criminal jurisdiction, which many know is now an exceptionally hot topic, but you may not realize that this has been a known area of law in need of clarification since early in U.S. history; and we finish the project with a chapter on native natural resources, which includes treaty rights, water law, hunting and fishing, and generally who owns the resources and the property on the reservation.”

Fellow American Law Institute elected member David Thronson, Michigan State University College of Law’s Alan S. Zekelman Professor of International Human Rights Law, commended his colleagues on their impressive accomplishment.

“Completing this Restatement is a tremendous achievement, the culmination of years of work. From conception through approval, Professors Fletcher and Singel demonstrated great vision and this ambitious Restatement will be highly influential,” said Thronson. “Our students at MSU College of Law are fortunate to study Indian Law with true experts working at the cutting edge of the law.”

The Restatement project was launched in 2012. Including this year’s Proposed Final Draft, which includes the complete project contents, 25 project drafts were produced by the reporters and reviewed and edited by the Advisers and Members Consultative Group (MCG).

“We owe a debt of gratitude to the dedicated Advisers and MCG who reviewed and provided guidance to us, making the project stronger with each draft,” said Smith. “This is a difficult area of law, as many of us did not study this in law school, and so few lawyers practice in this area day-to-day. Yet, it is more often than we realize that transactions or litigation will cross into Indian Territory. The body of law that we call federal Indian law derives from federal treaties, statutes, and executive orders with Supreme Court decisions fashioning principles in the nature of federal common law. The decisions that we see have shifted quite a bit in the modern era. We see decisions reflect a commitment to upholding the sovereign powers of Indian nations so that they can better their economies and preserve their rich cultural ways. Law in this area is progressive, and it is the right time for the ALI to have taken on this topic. With the completion of the Restatement of the Law of American Indians, the ALI is lending its hand in articulating doctrines that take account of the hard lessons of history.”

“The completion of any Restatement is cause for celebrating the Reporters’ accomplishment,” said ALI Director Richard L. Revesz. “Making sense of a significant area of law and navigating the ALI’s system for institutional discussion and approval is always a complex and challenging endeavor. But the complexity and challenge are even greater when the reporters are writing on a clean slate, with no prior Restatement to provide an organizing structure and guide their way. For this reason, I particularly admire the work that Matthew, Wenona, and Kaighn did on this very important and often misunderstood area of the law.”

The reporters, subject to oversight by the director, will now prepare the Institute’s official text for publication. At this stage, the reporters are authorized to correct and update citations and other references, to make editorial and stylistic improvements, and to implement any remaining substantive changes agreed to during discussion with the membership or by motions approved at the Annual Meeting. Until the official text is published, the draft approved by the membership is the official position of ALI, and may be cited as such.