Here is “License to kill: how Washington may lose its right to wipe out salmon.”
Author: Matthew L.M. Fletcher
National Indian Law Library Bulletin (9/16/2016)
Here:
The National Indian Law Library added new content to the Indian Law Bulletins on 9/16/16.
U.S. Federal Trial Courts Bulletin
http://www.narf.org/nill/bulletins/dct/2016dct.html
Poarch Band of Creek Indians v. Moore (Trust Lands – Real Property Taxation)
Dakota Access, LLC v. Archambault (Temporary Restraining Order; Oil Pipeline Construction)
Efrain Hildalgo v. PA Department of Corrections (Religious Land Use and Institutionalized Persons Act – Prisoner Rights)
State Courts Bulletin
http://www.narf.org/nill/bulletins/state/2016state.html
In re Michael V. (Indian Child Welfare Act – Application of)
Matter of M.H.C. (Indian Child Welfare Act – Transfer to Tribal Court)
In re A.B. (Indian Child Welfare Act – Application of)
In re Andrew S. (Indian Child Welfare Act – Application of)
News Bulletin
http://www.narf.org/nill/bulletins/news/currentnews.html
In the Land & Water section, see an article about U.S. legislation to settle water rights claims with the Hualapai Tribe in Arizona.
Law Review & Bar Journal Bulletin
http://www.narf.org/nill/bulletins/lawreviews/2016lr.html
These articles were added:
Gambling with equal protection: Connecticut’s exploitation of Mancari and the tribal gaming framework.
Traditional ecological rulemaking.
An Indigenous People’s right to environmental self-determination: Native Hawaiians and the struggle against climate change devastation.
U.S. Regulatory Bulletin
http://www.narf.org/nill/bulletins/regulatory/2016fr.html
We feature a proposed rule of the Department of Transportation, Federal Highway Administration, on tribal transportation self-governance program.
U.S. Legislation Bulletin
http://www.narf.org/nill/bulletins/legislation/114_uslegislation.html
The following bills were added:
S.3343: A bill to authorize the Attorney General to provide a grant to assist Federal, State, tribal, and local law enforcement agencies in the rapid recovery of missing individuals.
H.R.6028: Repealing Existing Substandard Provisions Encouraging Conciliation with Tribes (RESPECT) Act.
S.2848: Water Resources Development Act of 2016.
S.3254: Spearfish Canyon and Bismarck Lake Land Exchange Act.
H.R.5556: Great Bend of the Gila National Monument Establishment Act.
H.R.5780: Utah Public Lands Initiative Act.
H.R.5984: Pechanga Band of Luiseno Mission Indians Water Rights Settlement Act.
H.R.6060: To provide for the equitable settlement of certain Indian land disputes regarding land in Illinois, and for other purposes.
Federal Judge Dissolves TRO against DAPL Protesters, Condemning “Hooligans”
Here are the new materials in Dakota Access, LLC v. Archambault (D. N.D.):
Federal Court Denies Motion for TRO in Kiowa Election Matter
Here are the materials in Daugomah v. Roberts (W.D. Okla.):
Federal Court Dismisses Comenout Suit
Here are the materials in Comenout v. Pierce County Superior Court (W.D. Wash.):
Guest Commentary on TNToT — Monte Mills
This is a guest commentary on “The New Trail of Tears” (TNToT), a book written by Naomi Schaefer Riley (NSR or the author). The announcement post is here.
- The first commentary, “Framed by a Friend,” is here.
- The second commentary, “Turning Indian History against Indians,” is here.
- The third commentary, “Indians are Saudi Arabia, Not Israel (Oh, and Crying Toddlers)” is here.
- The fourth commentary, “”Indians as Unmotivated, Dependent Victims” is here.
Monte Mills, law prof at Montana Law, was kind enough to respond to my request for comments on TNToT. Here is Professor Mills’ commentary on chapter 1:
Though I’m new to MT and certainly don’t have the context on Crow and Northern Cheyenne that others here do, my sense is that, contrary to TNToT’s depiction, folks at Crow in particular have been active leaders in figuring out economic development solutions. For example, last year, the state legislature passed SB 307, introduced by a Crow member legislator, that allows for registration and recognition of tribal business entities in the state system. Crow also has a fairly detailed commercial and consumer transactions code including a Crow UCC (see p. 7). And, by the way, it would appear there is a way to foreclose on certain property interests at Crow (see Section 2).
In addition, all of the MT tribes, including Crow and N. Cheyenne, have been active in the State-Tribal Economic Development (STED Commission). As a result of the work of the Commission’s work last year, the State set aside $500,000 for an Indian Collateral Support Program to secure loans for tribal entrepreneurs. The Program is described pages 15 and 16 of the Governor’s annual state-tribal relations report.
On energy development at Crow and Northern Cheyenne, this recent work, Sovereignty for Survival: American Energy Development and Indian Self-Determination, provides a pretty good overview of how the tribes themselves worked through the complicated and challenging social, cultural, environmental, political, and economic decisions regarding coal development and, ultimately, secured passage of the IMDA in 1982 to enhance tribal decision-making and control over such transactions. Again, not victims, not “overly influenced by people concerned about the environmental impact”, but actually governing.
Lastly, we did a field trip course across Indian Country in Montana last spring and I think it’s fair to say that our most powerful and striking visit was to Northern Cheyenne. In the months leading up to our visit, there had been a number of public safety issues there and it was clear to us that the Tribal leaders with whom we met were not lazy, unmotivated, ignorant or passive in trying to figure out solutions to those challenging issues, many of which, by the way, were the result of factors beyond their control. For example, they told us that they have THREE BIA cops to patrol the entire reservation. Rather than simply wringing their hands and shaking their heads about it, they were actively engaged in reviewing and revising their public safety and criminal codes to try and fill the gaps and more effectively enforce their own laws. (BTW, they have a draft UCC too).
US Forest Service Destroyed Portions of the Trail of Tears
Here is “Docs detail government damage of Trail of Tears.”
An excerpt:
The documents outline the extensive process the Forest Service employees should have gone through before doing the work but didn’t.
For instance, the ranger who approved the project told another employee they didn’t’ have to comply with the National Environmental Policy Act because they did not own the land.
Yes Magazine: “In Negotiations With Feds, Can Standing Rock Change U.S.-Tribe Relationships?”
Here.
Kelli Mosteller: “For Native Americans, Land Is More Than Just The Ground Beneath Their Feet”
Finally some rational thinking about TNToT. Here.
Fourth Commentary on TNToT: Chapter 3 — “Indians as Unmotivated, Dependent Victims”
This is the fourth full commentary on “The New Trail of Tears” (TNToT), written by Naomi Schaefer Riley (NSR or the author). The announcement post is here.
- The first commentary, “Framed by a Friend,” is here.
- The second commentary, “Turning Indian History against Indians,” is here.
- The third commentary, “Indians are Saudi Arabia, Not Israel (Oh, and Crying Toddlers)” is here.
In line with the earlier chapters, NSR sets sights on specific reservations and tribes, in this chapter targeting Pine Ridge and the Rosebud, and yet more attacks directed at Seneca (a repeat player from Chapter 2).
Attacks on Pine Ridge and Rosebud Indian People and Nations
This chapter delivers the lowest blows on Indian people in TNToT. This is classic blaming the victim, but with undertones of race-baiting. In the TNToT narrative, Indian people struggle and poor because of their own character flaws. TNToT, as usual, offers no tribal or reservation history whatsoever on either the Oglala Sioux Tribe or the Rosebud Sioux Tribe. That naturally would complicate NSR’s harshly judgmental conclusions.
Here’s a bit of history, mostly from my reading of United States v. Sioux Tribe. The history is way, way more complicated. But I am trying more than NSR, who is actively ignoring or hiding the history.
The two reservations now known as Pine Ridge and the Rosebud are far smaller than the original Great Sioux Reservation, which covered all of the Dakotas and parts of other states. My sense is that the Black Hills were the keystone of the entire original reservation. It’s where there were resources in the winter and a gathering place for lots of tribes. The Rosebud and Pine Ridge cannot be considered in isolation without reference to the Black Hills. My guess would be that most of the federally recognized “Sioux”
tribes would rather live in and near the Black Hills than where they are in South Dakota, for example, if they had to choose. The US initially obliged itself in treaty language to protect that territory for the benefit of Indian people, but stupidly placed people like George Custer in charge of that mission, who promptly betrayed the tribes (and later died for it, one could say — remember that victory NSR called “Pyrrhic” on page 3?).
Of course, once the US started on the path toward greatly diminishing Indian land holdings, the Black Hills was the main target. As far as I understand, there is no treaty consenting to the taking of the Black Hills by the US. There are statutes that confiscate the territory, ostensibly negotiated with tribal interests, but these are truly confiscation acts. Ultimately, the Supreme Court (and even Congress, which authorized the suit — it didn’t have to do so) held in 1980 that the taking of the Black Hills was compensable (over the objections of the Executive branch). The United States’ argued that the rancid meat the government provided on occasion to starving Indians in the winter was “just compensation.” [It’s maddening and tiresome that NSR advocates for property rights in Indian country — recall the “magic force” quote on page 15 — but simply will not acknowledge the property rights of Indians and tribes.] Still, the tribes refused the money in order to keep alive the claim to the actual land. Five years ago, the trust fund was at $1.3 Billion and likely far more now. This is far greater context, though ultimately just a snippet, of the history of the Rosebud and Pine Ridge Reservations. TNToT wants nothing of that. Continue reading
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