Reviews of Nick Estes’ “Our History Is the Future: Standing Rock Versus the Dakota Access Pipeline, and the Long Tradition of Indigenous Resistance”


The Intercept


The book webpage from Verso is here.

LTBB Judge Profiled in New Book on Judging

Here is “Judges discover strength in pivotal decisions” from the National Catholic Reporter.

The article reviews the new book, “Tough Cases: Judges Tell the Stories of Some of the Hardest Decisions They’ve Ever Made.”


Fletcher Review of David Grann’s “Killers of the Flower Moon”

Here is “Failed Protectors: The Indian Trust and Killers of the Flower Moon,” forthcoming in the Michigan Law Review.


This Review uses Killers of the Flower Moon as a jumping off point for highlighting for readers how so many Indian people in Indian country can be so easily victimized by criminals. And yet, for however horrible the Osage Reign of Terror, the reality for too many Indian people today is much much worse. The federal government is absolutely to blame for these conditions. This Review shows how policy choices made by all three branches of the federal government have failed Indian people. Part I establishes the federal-tribal trust relationship that originated with a duty of protection. Part II establishes how the United States failure to fulfill its duties to the Osage Nation and its citizens allowed and even indirectly encouraged the Osage Reign of Terror. Part III offers thoughts on the future of the trust relationship in light of the rise of tribal self-determination. Part IV concludes the Review with a warning about how modern crime rates against Indian women and children are outrageously high in large part because of the continuing failures of the United States.


Reviews of Sherman Alexie’s New Book

Slate: “Mother-Stung

BuzzFeed News: ‘Sherman Alexie on Not Being “The Kind of Indian That’s Expected”‘

An excerpt:

Even though he was ensconced in liberal Seattle, Alexie knew how the election would go down. “My friends were mad at me, but I knew,” he said, shaking his head. “I wasn’t shocked and I’m still not shocked. It’s total exploitation, with everything up for grabs. Health care, gone. Destroy the environment in search of more profit. State-sponsored violence. Targeted incarceration. You know what’s happening, though: The whole country is becoming a reservation.”

The Atlantic Spotlight on Photojournalist Daniella Zalcman’s “Signs of Your Identity”

Link: Erasing Indigenous Heritage by Emily Anne Epstein (Oct. 30, 2016)


For nearly a century, the Canadian government took indigenous Canadians from their families and placed them in church-run boarding schools, forcibly assimilating them to Western culture. Children as young as 2 or 3 years old were taken from their homes, their language extinguished, their culture destroyed. With support from the Pulitzer Center on Crisis Reporting, photographer Daniella Zalcman has been documenting the lingering effects of this trauma for her book, Signs of Your Identity, this year’s winner for the FotoEvidence Book Award.


Final Commentary on TNToT: “Repeating the Mistakes of the Past in “The New Trail of Tears””

The final commentary on TNToT was published in the LA Review of Books

An excerpt:

Riley’s real interest is to bring unfettered free markets and “property rights” to Indian country. She suggests the disestablishment of tribal land holdings as the solution to imaginary corruption, as well as to all the other problems in Indian country. In other words, corruption and mismanagement starts with sovereignty and collective property, so if we get rid of both Indians will be better off. Unsurprisingly, Riley hearkens back to the allotment policies enshrined under the Dawes Act, a federal program in the 19th century that mandated the confiscation of Indian reservations by the federal government, followed by the liquidation of those assets at pennies on the dollar of their market value and their public sale to non-Indians on the cheap. It was a state-sponsored land grab of unprecedented proportions with negative effects on Indians still felt to this day. What an odd model for a property rights advocate! Allotment meant the dispossession of 100 million acres of Indian lands from 1887–1934 and economic devastation from which most tribes have not, and maybe cannot, recover. The depredations of the Dawes Act are a major reason why federal law and policy was reoriented to protect tribal lands and sovereignty, yet Riley’s ahistorical analysis ignores all of this.

Fifth Commentary on TNToT — Chapter 4: “Tearing Down American Indian Educators and Parents”

This is the fifth full 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’ guest commentary is here.

Chapter 4 of TNToT is about Indian education. NSR praises certain schools (St. Labre, Red Cloud, for example) because they are private or charter schools, and condemns public schools (Crazy Horse and Wounded Knee schools) and their teachers and administrators, especially Cecilia Fire Thunder.

Ben Chavis

NSR opens chapter 5 with Ben Chavis, a free market advocate, who formerly was the lead administrator of the American Indian Public Charter School in Oakland, California. He was a conservative darling, written up in the National Review in 2009. He was often praised in those circles for these actions:

During his tenure at the chain from 2000 to 2012, he was criticized for lodging punishments designed for what he called in his book “extra embarrassment.” He once shaved the head of a misbehaving student caught repeatedly stealing; some unruly students were forced to wear humiliating signs. And Chavis often referred to black students as “darkies.”

Ultimately he was caught misappropriating $3.8 million in school funds and forced out. It wasn’t his physical and emotional abuse, or his overt bigotry, it was his money management (and some serious self-dealing). Sadly, this continues NSR’s trend of quoting critics of Indian people and tribal governments that have a history of significantly unethical behavior (see Keith Moore and Stacy Phelps in chapter 3 — NSR does mention Moore’s trouble with the feds on page 141-42, but not Phelps — must be rough to find out your sources are apparently crooks].

NSR points out that Chavis has relocated to North Carolina and started a new school in Robeson County, Lumbee Country. His new math camp was based on similar principles as the Oakland school. In a previous article praising this school, NSR asserted that “most” of students there were Lumbee [in the same article, NSR describes Chavis’ practice of putting campers in “detention” — I thought this was a camp!!!!]

NSR also continues a trend of quoting people who really do not like Indians. NSR reports Chavis “has been called racist by members of his own community.” [at 111] TNToT includes a quote from Chavis condemning “lazy ass Indians.” [at 111] NSR joins in by alleging that Lumbee parents “don’t care” about their children. [at 111] Chavis promised to start a new charter school like the one in Oakland, but that school was  blocked, according to recent news reports.

St. Labre Indian School

Ivan Small, who NSR introduced in Chapter 1 as angry at not being allowed to buy Indian lands as below-market value, is now introduced as the director of the St. Labre Indian School. [at 118] St. Labre is funded by private donations and not tied to the Northern Cheyenne Tribe. A few years back, the school paid out $11 million to the Northern Cheyennes for “exploitation” of the poverty on the reservation (which created its own controversies).

TNToT lauds schools like St. Labre. Like probably way too many schools in and near Indian country and elsewhere, it kicks out the children with the most needs and problems, dumping those children on overtaxed and under-resourced public schools, then takes credit for the successes of the remaining students. NSR acknowledges the school’s “paternalistic policies” are what makes it successful. [at 117] No wonder Northern Cheyenne families don’t like Saint Labre. [at 118]

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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

Second Commentary on TNToT: Chapter 1 — “Turning Indian History against Indians”

This is the second full commentary on “The New Trail of Tears” (TNToT), written by Naomi Schaefer Riley (NSR or the author). The first commentary, “Framed by a Friend,” is here. The announcement post is here.

Chapter 1 is a story about modern tribal economies, using the Crow Nation and the Northern Cheyenne Tribe as examples of failed tribes. But it also a story of the history of American Indian law and policy from the allotment era to the reorganization era, loosely the mid-19th century to 1934 or so. Students of American Indian history will see a lot of familiarity to the recitations of history in TNToT, but don’t be fooled: the conclusions drawn by NSR are geared toward the termination of the federal-tribal trust relationship and the confiscation and dispersal of tribal and Indian property rights.


TNToT’s Attack on the Crow Nation

TNToT’s description of the Apsaalooke Nation (and Northern Cheyenne, too) is truly unpleasant reading. In TNToT, the Crow Reservation is full of broken down cars and trucks, broken windows, children’s toys, lawn chairs, trash, and stray dogs. [at 6] The Indians there have a “dark sense of humor”; “They’ve seen it all before, and they don’t expect anything to get better.” [at 7] There’s “too little law enforcement.” [at 7]

TNToT alleges that the Crow Nation government is corrupt and/or incompetent. This is a frequent allegation by NSR about all tribal governments, usually comes from a disgruntled tribal or community member, and usually supported by no facts whatsoever. Here, NSR quotes a tribal leader as saying that the Crow Nation owes $3 million to HUD, and cannot construct new housing until HUD is repaid. This sounds weird. The tribe and HUD are in a protracted legal battle. Is that dispute the source of the statement? We sure don’t know from reading TNToT. All we get from NSR is implied corruption or incompetence. BTW, in FY 2016, HUD allocated $2.7 million to the tribe.

TNToT’s Attack on the Northern Cheyenne Tribe

NSR’s main source on the Crow and Northern Cheyenne reservations is Ivan Small, the director of the St. Labre Indian School (though NSR doesn’t reveal that tidbit until chapter 4, when she praises Mr. Small and the school without referencing the controversial $11 million payment the school made to the Northern Cheyenne Tribe after being sued for “exploitation“). Small is quoted as criticizing Crow reservation residents as not respecting the maxim, “A man’s home is his castle.” [at 6]  He’s the first of several Indian people in the book NSR quotes as being angry at other Indians for a wide variety of character flaws. These informants usually are accusing Indians of flaws based on their status as Indian people — in other words, on their race. NSR brilliantly (and cynically) only quotes Indians to make these race-based commentaries about Indians; to quote non-Indians for the same propositions would be to quote racists. These Indians are usually described as slowly shaking their heads or muttering in frustration throughout TNToT (they must have very sore necks). Small is angry, but “mostly tired,” [at 6] and “past the point of anger.” [at 7]

NSR notes that there is a small casino there, asserting: “These gamblers are effectively taking money given to them by the tribal government for food or housing and giving it back to the tribe through its slot machines.” [at 6] It is my understanding that small casinos in small markets don’t make much dough. In my experience at Hoopa and at Grand Traverse Band (the Leelanau Sands casino), casinos might remain open to maintain some semblance of a job market at that location. Maybe the tribe makes little or no money from that casino, but it doesn’t lose money, and tribal employees are employed. And that can have important benefits — tribal members can establish an employment record at that casino, for one. Also, NSR’s reference to food or housing money “given” to tribal members is not supported by evidence. This kind of talk is just dog whistle politics.

Again, I’d love to hear more about the Crow and Northern Cheyenne reservations in light of NSR’s characterizations. Comments are welcome, or you can email me.

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First Commentary on TNToT: Introduction — “Framed by a Friend”

The Introduction to “The New Trail of Tears” (TNToT), written by Naomi Schaefer Riley (NSR or the author), frames the book as an attack on the United States’ Indian policies. For NSR, it the federal government’s poor governance in the area of Indian affairs that is behind the poor state of Indian peoples’ lives.

The trap for readers is that TNToT seems like a reform minded book with deep sympathy for Indian people, with the federal government as the bad guy. It’s not. At best, TNToT is paternalism, termination era- and allotment era-style liberalism. NSR characterizes the Indians that live in Indian country as poor, alcoholic, suicidal rapists. Or really, really sad people who are always slowly shaking their heads (classic Vanishing Indian stuff). 

At worst, this is paid propaganda for conservative organizations that tend to support the view that the federal government is a terrible thing. For NSR, Indians are either victims or perpetrators, and need to be saved or punished. Finally, and in my view most importantly, TNToT throughout ignores tribal and Indian property rights, which is ironic given that NSR will frequently refer to property rights as a justification for her conclusions.

Let’s begin with the Introduction.

TNToT Depends on the Myth that All Indian Nations are the Same

TNToT focuses on several specific Indian nations, but there are 567 federally recognized Indian tribes. Not all are the same. And yet on page viii, NSR writes that we have “what amounts to a third world country within our borders.” This might seem like nitpicking, but statements like these lead readers to believe that all Indian nations are the same. Readers likely know very little about any Indian nations. Some are very traditional and isolated. Some are very traditional and urban. Some have resources. Others do not. Each Indian nation has its own history, and each Indian nation has differences. There is no massive glob of federal/tribal land in the middle of the US somewhere that houses all Indian nations.

Throughout TNToT, NSR asserts terrible things about specific Indian tribes, and explicitly or implicitly applies those things to all tribes. Keep reading future posts and you’ll see.

TNToT Assumes that Federal Spending on Indian Affairs Continuously Rises 

TNToT paints a picture of federal Indian affairs policy as something as simple as federal money administered by federal bureaucrats on reservation lands. And that federal money grows and grows and grows. This is just false. TNToT ignores completely reports such as “A Quiet Crisis: Federal Funding and Unmet Needs In Indian Country.” TNToT will often reference Obama era budget requests — budget requests are not budgets.

TNToT draws from anti-government commentaries and asserts there are 9000 BIA/BIE employees, 1 per every 111 Indians living on reservations [at ix]. Of course, that number is down considerably from the years before the beginning of the self-determination era — 16,000 — and has been falling ever since. I found that number in the first edition of Getches et al., Cases and Materials on Federal Indian Law at 125. This omission of fact is either sloppy reporting or selective reporting. Context matters.

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