Here is “Restatement as Aadizookaan,” forthcoming in the Wisconsin Law Review. The abstract:
The goal of this essay for the Wisconsin Law Review’s symposium on the Restatement of the Law of American Indians is to develop a framework on the durability of this restatement. The aadizookaanag are unusually durable in terms of their transmission of underlying, foundational lessons, but the stories change all the time. The earth diver story explores and describes the critically important connection between the Anishinaabeg and the creatures of Anishinaabewaki, but only a very broad level of generality. How the Anishinaabe tribal government in the 21st century translates those principles into modern decision making requires new analysis, new stories. Additionally, old aadizookaanag may fade into irrelevance, even disrepute, as times and conditions change.
Law is the same. Restatements are intended to be durable and persuasive, supported by the great weight of authority, but not permanent. There are provisions in the Indian law restatement I believe are truly timeless, while the law restated in some sections is likely to change a great deal over the next few decades. I choose four sections in the restatement and match them with one of the four directions sacred to the Anishinaabeg. The youngest direction, Waabanong, the east, is the most likely to change. The next youngest, Zhaawanong, the south, is older, but still subject to change. Niingaabii’anong, the west, is still older, wiser, less likely to change, but also very dark in its philosophies. Kiiwedinong, the north, is the oldest, wisest, and most durable, yet distant. A restatement section includes black letter law, law that is well settled and indisputable. The reporters’ notes that accompany the black letter law constitute the legal support for that statement of law. The stronger the legal support, more durable the black letter.
In the east, I choose one of the plainest, easiest to restate principles of federal Indian law, the bar on tribal criminal jurisdiction over non-Indians. In the south, I choose the law interpreting the federal waivers of immunity allowing tribes to sue to the United States for money damages. In the west, I choose the darkest, yet perhaps the most foundational principles, the plenary authority of Congress in Indian affairs. For the north, I choose tribal powers, the oldest and most durable of all of the principles in the restatement.
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