Florida Appellate Court Orders Trial Court to Allow Tribe to Intervene in ICWA Matter

Here is the opinion in Stillaguamish Tribe of Indians v. D.D.:

D.C. Federal Court Order Denying Injunction to Stop Border Wall Construction

Here is the order in Tohono O’Odham Nation v. Mullin (D.D.C.):

Prior post here.

Ward Churchill Dies

NYTs

I never had the chance to meet Ward Churchill. I first read him in the early 90s at Michigan in a Native Studies class taught by Estevan Rael-Galvez. Estevan assigned this book, one the featured Ward heavily:

I liked it enough to keep buying books by the leading authors in this collection, including Ward. I was reading Howard Zinn, Noam Chomsky, Vine Deloria, John Trudell, Edward Said, Winona LaDuke, Paula Gunn Allen, Emma Goldman, etc. back in those days. They were mainstays of a radical publishing industry.

Eventually, I would hear negative comments about Prof. Churchill, that he threatened people, that he wasn’t really Indigenous, that he was a plagiarist. Hearing those things doesn’t necessarily make it so, especially when some of the people saying those things to me were themselves a bit unreliable. Other people I trust advised me that Ward was a true champion of academic freedom.

In the mid to late 2000s, D.C. Fed Bar asked me to join Ward and Sam Deloria on a panel about Indian citizenship and identity in their fall event one year. I even put together some materials in a packet I facetiously called “Who is an Indian? Ask the Government.” Being a baby law prof, I had no interest in arguing with either Sam or Ward, which I imagine could be quite bruising, but I did want to meet the man I had read for so long. Sadly, I did not get to see Sam and Ward interact on the same stage because Ward cancelled (or so I was told) and was replaced by a Congressional staffer. I can only imagine, given the controversies over Ward’s ancestry, that the panel might have been enlightening — or a debacle.

In Native circles in the public record, Ward first appears as an artist in the 1970s. That was news to me. He even showed in Paris in the mid-1970s.

Rapid City Journal, 1975
Rapid City Journal, 1976
Back inside cover of Shantiih, Summer-Fall 1979
An early bio from the same issue of Shantiih.

I confess that I found myself annoyed/jealous that Ward came up in a field that had so many gaps that one person could be so many things, artist, poet, activist, academic, institutional leader, etc. It’s very impressive that he was all these things without a PhD, JD, MFA, MBA, etc., academic credentials that Native people now struggle to attain — and usually must — just to be one of the things that Ward was known for. It was certainly a different time, with the few Native people that were able to make it through the higher education system that any person who did it was instantly a unicorn.

It was also a time of violence (Wounded Knee, treaty fishing, etc.), which seems to me to have contributed to the ugly academic discourse of that generation, in which Ward definitely partook. Whatever one’s views about Ward, his writings identified so many issues I had never heard about as a young man utterly uneducated about Native issues in the 1990s. For that, I say thanks to Ward and that entire generation of activist-academics.

Like I said, I never met him, but a few years back I did meet his delightful spouse, Natsu Saito, who is truly lovely. In my brief interaction with Prof. Saito, I noticed that her characterization of Ward was much different than what I had heard and read about him. My thoughts go out to her.

UDub 39th Annual Indian Law Conference Agenda + Registration Link

UW Law’s Indian Law Symposium, an annual tradition for 39 years, will focus on the theme:

The program will be held in person at William H. Gates Hall, and available via Zoom. 

Registration here.

Agenda here:

September 10, 20268:30 AM PT

Red Road Warriors

8:30 AM-8:45 AM8:45 AM PT

Welcome and Overview

8:45 AM-9:00 AM

Eric Eberhard

Associate Director, Native American Law Center & Professor from Practice 

UW School of Law 

Monte Mills

Director of the Native American Law Center & Charles I. Stone Professor of Law 

UW School of Law 9:00 AM PT

Alaska SCT Decides “Race to the Courthouse” in Favor of First-Filed Tribal Court Matter

Here is the opinion in Mallette v. Adams:

Katherine Florey on Indian Law Countercanons

Katherine Florey has posted “Indian Law Countercanons,” forthcoming in the Michigan Law Review, on SSRN.

Here is the abstract:

On the second or third day of class, Federal Indian Law students learn that courts apply field-specific canons, originally derived from Chief Justice Marshall’s 1832 opinion in Worcester v. Georgia, to determine the degree to which tribal nations retain sovereign powers and treaty-protected rights in the face of arguably conflicting law. Although the canons are formulated in different ways, they are animated by the shared goal of establishing structural recognition and protections for tribes. Nonetheless, scholars and tribal advocates have lamented that, even as courts continue to apply the canons, in recent years they have failed to do so consistently. 

This Article posits, however, that the issue goes deeper. The Supreme Court, especially in recent decades, has done more than simply ignore the canons when it chooses to. Rather, in keeping with Karl N. Llewellyn’s famous observation that, where statutory interpretation in general is concerned, “there are two opposing canons on almost every point,” the Court has developed a series of what might be called the Indian law countercanons. Although not precisely opposite to the traditional Indian law canons in all respects, the countercanons reflect a set of values wholly inconsistent with the protections for tribal sovereignty that the traditional canons embody, instead evincing an overwhelming preoccupation with safeguarding the non-Native status quo. 

The countercanons have strongly influenced outcomes in a variety of cases over the past few decades. Yet the Court has not identified them as canons, nor has it explained their source, role, or scope of application. To fill this gap, this Article attempts to map the evolution of the countercanons and to explore the significant role they have played in a variety of situations. The Article also adds a new element to the abundant critiques of the Court’s recent federal Indian law jurisprudence by analyzing the countercanons specifically as canons – that is, by connecting them to the larger literature on the role of canons in legal interpretation more generally. Reviewing two areas of canon scholarship – standards for assessing canons’ validity and considerations of when it is appropriate for canons to change – the Article concludes that, in contrast to the traditional canons, the countercanons lack legitimacy. On this basis, the Article critiques both the countercanons themselves and the process by which they have come to partially supplant the traditional canons. 

White Earth Ojibwe COA Decision in White Earth Division of Natural Resources v. Vipond

Here:

Prior post here.

Scotts Valley Sues Interior over Gaming Decision Reversal

Here is the complaint and exhibits in Scotts Valley Band of Pomo Indians v. Dept. of the Interior (D.D.C.):

Blast from the Past: Vine Deloria’s White Paper on the Right to Education and Accessing Federal Archives and Libraries

Here is “The Right to Know — A Paper”:

Reading Indian law.