Author: Kate Fort

Our 2011-2012 Incoming Fellow Profiled in the Jackson News

Kate Fort

Elaine Barr, our incoming fellow, was profiled this weekend in the Jackson newspaper.

While Barr never became a musician like her father, she did find her niche: law. According to Barr’s grandmother, Edna Barr of Blackman Township, Elaine “knew she wanted to be an attorney since she was 10 years old.”

Barr, now 22, earned her bachelor’s and law degree in five year’s time. After earning her bachelor’s from the University of Michigan, Barr went on to MSU law school, graduating this spring. According to the MSU registrar’s office, the feat usually takes between six and seven years, and it is uncommon to complete it in less.

Hawai’i v. Pratt

Kate Fort

A land use/cultural practices/religious freedom case was just heard in front of the Hawai’i Supreme Court last week. Coverage here.  The oral argument should be posted here, though the link to the case isn’t yet working.

From the Intermediate Court of Appeals decision (in which the three judges wrote separately):

The District Court rejected Pratt’s view that, having demonstrated that he was a native Hawaiian and that he carried out customary or traditional native practices on undeveloped land, the inquiry should go no further and the charges against him should be dismissed. Instead, the District Court took the view that, under applicable Hawai‘i law, “even with such a showing, the Court must reconcile competing interests and only uphold such rights and privileges reasonably exercised, to the extent feasible, and subject to the right of the State to regulate such rights.” (Citations and internal quotation marks omitted; punctuation altered.) The District Court concluded that, notwithstanding Pratt’s cognizable native Hawaiian rights, the exercise of such rights by setting up a residence and “church” in Kalalau Valley was not a reasonable exercise of such rights-in light of the State’s interests in keeping Kalalau Valley a wilderness area, in protecting the health and safety of visitors to the valley, and in protecting and preserving this valuable asset-and the alternative ways that Pratt could exercise his native Hawaiian rights. On this basis, which the District Court framed as a balancing of interests, Pratt’s motion to dismiss was denied.

In a 40 page opinion, the Intermediate Court of Appeals upheld the District Court. Decision here.

Blatchford v. Alaska Native Tribal Health Consortium

Kate Fort1 Comment

The 9th Circuit reversed the District Court’s order for summary judgment and found in favor of Blatchford. The case involved application of 25 U.S.C. 1621e to a case between the injured party and the health provider. The court found the statute provides the provider a right of recovery only against third parties, not to the individual Indian who received care from the provider.

Opinion

District Court’s Order for Summary Judgment

Appellant’s Brief

Reply Brief

Kelsey v. Pope, Western District of Michigan

Kate Fort

This is a case on tribal court jurisdiction out of the Little River Band of Ottawa Indians.  The tribe owns the Tribal Community Center in fee, where the criminal act between two tribal members occurred.  The petitioner claims the tribal court has no jurisdiction over him to charge or convict him with the crime.  The petitioner filed a habeas petition in federal court.

Habeas brief

Respondent’s brief

There is a hearing scheduled on the matter for May 24th.

Noam Chomsky’s Reaction to bin Laden Death

Kate Fort

Here.

From the last paragraph:

Same with the name, Operation Geronimo. The imperial mentality is so profound, throughout western society, that no one can perceive that they are glorifying bin Laden by identifying him with courageous resistance against genocidal invaders. It’s like naming our murder weapons after victims of our crimes: Apache, Tomahawk… It’s as if the Luftwaffe were to call its fighter planes “Jew” and “Gypsy.”

The article has, as one might imagined, drawn some criticism, though it is from also someone who pretty much criticizes everything.

New Law School in Ontario to Give Preference to First Nations Students

Kate Fort

From the Toronto Star:

Law society paves way for Ontario’s first new law school in 43 years

* * *
That vision is inching closer to reality now that the Law Society of Upper Canada has approved a proposal from Lakehead University to open a law school in Thunder Bay.

The university says the school would give preference to northerners and First Nations applicants.

Lakehead’s senate votes on the proposal Friday.

If the Ontario government approves the project, Lakehead will become home to the first new law school in Ontario in more than 40 years, the last being University of Windsor’s faculty of law, which opened in 1969.

“We are set to go and we think this is really high value for the money,” Lakehead president Brian Stevenson said Tuesday.

The law school is expected to cost about $2.5 million a year to operate and Lakehead is looking to the province to pick up a third of the expense.

“This is an opportune time for institutions to be coming forward with proposals like this,” John Milloy, Ontario’s minister of training, colleges and universities, told the Star.

The province is about to sit down with all post-secondary institutions to discuss their future and it will be looking at how Lakehead’s proposal will benefit First Nations communities and the economy, Milloy said.

* * *

Beardy sees a similar role for First Nations leaders in developing a law school.

Ontario currently has 42,182 lawyers, but few are from First Nations communities.

A study conducted for the law society by York University sociologist Michael Ornstein in 2006 found that just 1 per cent of Ontario lawyers — about 315 at that time — identified themselves as aboriginal.

More Company K Coverage

Kate Fort

The Civil War started 150 years ago, on April 12, 1861, which is a likely reason for the increased coverage of the war in media outlets.  Regardless, the additional coverage of Company K is welcome.  From the Petoskey News (h/t K.B.):

BOYNE CITY — After a century of anonymity the unmarked graves of two American Indian sharpshooters from the Civil War received their full honors Saturday at Maple Lawn Cemetery.

The two Union soldiers, Pvt. John Jacko and William Isaacs, were members of a 140-member American Indian unit of the Michigan Sharpshooters known as Company K that fought in some of the fiercest battles of the Civil War, including the Battle of the Wilderness, Battle of Spotsylvania and the Siege of Petersburg.

But, following the Civil War many American Indian veterans took their severance pay and were largely forgotten.

In the full tradition of the Grand Army of the Republic, the Traverse City-based Sons of Union Veterans of the Civil War Robert Finch Camp 14 honored the two veterans with taps and three volleys by riflemen, as well white marble tombstones, recognizing the two men for the first time since their deaths in 1907.

The historical details of Company K had been almost completely undocumented until this past year, when historian Chris Czopek, of Lansing, began self-publishing more than 15 years of sifting through documents and federal records about the unit.

It was Czopek who identified the two graves while researching his book “Who was Who in Company K,” is the first historical text of compiled names, dates and details about the unit.

“One of the things I wanted to do was track down every single grave of these soldiers,” Czopek said.

The first grave he found was of Jacko, then later Isaacs.

Jacko, who belonged to the Grand Traverse Band of Ottawa and Chippewa Indians in Leelanau County, enlisted in the Union Army in Grand Rapids in 1845 as a replacement sharpshooter after his father Jacko Penaiswanquot died in the infamous Andersonville prison in Georgia, Czopek said.

“He enlisted in Company K, as if he wanted to take his father’s place,” Czopek said. “But, despite enlisting at the end of the (Civil War) he fought in some of the biggest battles and was a true veteran in every sense of the word.”

Isaacs was also seasoned veteran.

Twice wounded, the Swan Creek Black River Bands of Ojibwe Indian was with Company K when it was first recruited in 1863 until it was released from duty at the end of the war. First wounded in the leg, Czopek said, Isaacs, who lived grew up near Saginaw, later sustained a second injury when a mortar round landed directly between his legs — failing to explode.

Perception Matched Reality in Timing of U.S. v. TON Opinion

Kate Fort

SCOTUSblog released its stat pack today, and U.S. v. TON was top of the list for the number of days between the argument and the opinion at 176 days.  The second closest was at 174 and the third at 169.  The fastest opinion release was 41 days.  The link to all of the stats is here, and here is the days-between-oral-argument-and-opinion pdf.

GAO Report on Indian Arts and Crafts

Kate Fort

Available here.

From the Introduction:

The size of the Indian arts and crafts market and extent of misrepresentation are unknown because existing estimates are outdated, limited in scope, or anecdotal. Also, there are no national data sources containing the information necessary to make reliable estimates. For example, the most often cited national estimates about the size of the market and the extent of misrepresentation come from a 1985 Department of Commerce study. GAO found that not only is this study outdated, but the estimates included in the study are unreliable because they were based on anecdotal information and not systematically collected data. No national database specifically tracks Indian arts and crafts sales or misrepresentation, and GAO found that no other national databases contain information specific or comprehensive enough to be used for developing reliable estimates.

And, interestingly,

U.S. federal and state laws protecting intellectual property do not explicitly include Indian traditional knowledge and cultural expressions—such as ceremonial dances or processes for weaving baskets—and therefore provide little legal protection for them. Some international frameworks offer protection for traditional knowledge and cultural expressions, but the federal government has not yet undertaken steps to implement these frameworks in the United States. Other countries, like Panama and New Zealand, have taken actions—which offer options for consideration—to protect the intellectual property of indigenous groups.