cultural resources

Batchewana First Nation Remains Repatriated by Smithsonian

Matthew L.M. Fletcher

From the Sault Star:

CLICK HERE to watch a video

The remains of six Batchewana First Nation ancestors returned home Thursday after a 135-year absence.

Chief Dean Sayers said the return of the remains from the United States marked a “moving forward,” for Batchewana.

“We want our kids to have good memories,” said Sayers. “This is one of those good memories that they’re going to be able to tell their children and their grandchildren and their grandchildren.”

A crowd lined the St. Mary’s River as a box containing the remains of three men and three women was paddled from Sault Ste. Marie, Mich., to Bellevue Park in a 20-foot birch bark canoe. The remains were then loaded in a vehicle for transport to a traditional burial ground at Batchewana’s Goulais Mission reserve.

Thursday was the first time the Smithsonian Institution has been involved in transferring human remains back to Canada.

The unidentified Anishnabek as well as four associated funerary objects, had been unearthed from unknown cemetery sites at or near Sault Ste. Marie in 1875 by the U.S. Army surgeon at nearby Fort Brady for the purpose of scientific research.

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Sonia Katyal’s New Article: “Trademark Intersectionality”

Matthew L.M. Fletcher

Published here at the UCLA Law Review.

Here is the abstract:

Even though most scholars and judges treat intellectual property law as a predominantly content-neutral phenomenon, trademark law contains a statutory provision, section 2(a), that provides for the cancellation of marks that are “disparaging,” “immoral,” or “scandalous.” This provision has raised intrinsically powerful constitutional concerns, which invariably affect two central metaphors that are at war within trademark law: the marketplace of goods, which premises itself on the fixedness of intellectual properties, and the marketplace of ideas, which is premised on the very fluidity of language itself. Since the architecture of trademark law focuses only on how marks communicate information about a certain product or corporation within the marketplace of goods, it largely underestimates the more complex role that trademarks play within the marketplace of ideas. Conversely, by only taking into account a brand’s expressive implications, the provisions governing scandalous, disparaging, and immoral matter fail to substantively address the source-identifying functions that these marks often serve.

Wonderful material!

Oregon DHS v. Three Affiliated tribes (MHA Nation): ICWA Case in Oregon Court of Appeals

Matthew L.M. Fletcher

Here.

An excerpt:

The Three Affiliated Tribes of Fort Berthold Reservation (the tribes) appeal a judgment in which the trial court concluded that “good cause” under the Indian Child Welfare Act (ICWA) existed to designate the adoptive placement for two Indian children as the home of their current foster parents rather than the home designated by the tribes. On appeal, the legal issue is whether “good cause” exists to depart from ICWA’s placement preferences. 25 USC § 1915(a). As we will explain, we are bound by the trial court’s findings of fact if there is any evidence in the record to support them, but independently assess whether those findings are sufficient to support the trial court’s legal conclusion that “good cause” exists under the circumstances of this case. Applying that standard, we affirm

ICWA Cases To Be Assigned to One Judge in Washtenaw County (Judge Connors!)

Matthew L.M. Fletcher

Here is the order: 2007-06J Case Assignments LAO 2007.

Utah Alleged Grave Robber Motion to Dismiss Indictment Rejected

Matthew L.M. Fletcher

Here are recent materials in United States v. Sommerville (D. Utah), over whether the defendant must have actual knowledge that certain artifacts are protected by the Archeological Resources Protection Act:

Sommerville Motion to Dismiss

US Opposition to Sommerville Motion

DCT Order on Sommerville Motion to Dismiss

Pit River Tribe v. USFS in Ninth Circuit

Matthew L.M. Fletcher

Opinion here. The court rejected Pit River’s challenge to the district court remand back to the USFS for NEPA violations, holding that the agency did not have to start over on the underlying question (Calpine’s proposed lease extensions near Medicine Lake).

California COA Holds that ICWA Notice to Tribe Not Required Where “Reasonable Probability” is that Child is Not Indian

Matthew L.M. Fletcher

Here is the opinion in In re Skyler H.:

An excerpt:

While the standard for ICWA notice is low, it is not without reasonable limits. This case raises the issue whether a child’s specific but attenuated Indian heritage invokes ICWA notice requirements under section 224.3, subdivision (b), which describes circumstances that may provide reason to know the child is an Indian child. We hold the trial court has discretion to consider the totality of the information presented concerning the child’s family circumstances to determine whether it meets the threshold required for ICWA notice-“the court knows or has reason to know the child is an Indian child.” (§ 224.2.) We further hold ICWA notice is not required unless the totality of the family’s circumstances indicate there is a low but reasonable probability the child is an Indian child. Here, we conclude the case need not be remanded for ICWA notice because the family’s specific but attenuated Indian heritage does not provide reason to know the child is an Indian child.

D.C. Federal Court Dismisses Geronimo v. Obama

Matthew L.M. Fletcher

Here: DCT Dismissal.

Earlier materials are here.

Cranbrook Repatriation

Matthew L.M. Fletcher

From Indianz:

The Cranbrook Institute of Science in Michigan is preparing to repatriate 59 ancestors to a group of tribes.

The 13 tribes requested the ancestors in 2008. The museum’s board of directors voted to repatriate the remains under the Native American Graves Protection and Repatriation Act.

“It is the right thing to do,” Michael Stafford, the Institute’s director, told The Detroit Free Press. “We don’t view these remains as data. We see them as people, with spirits and souls.”

The Little Traverse Bay Bands of Odawa Indians is coordinating the process. The band will work with the other tribes on the reburial.

“We see this as a human rights issue,” Eric Hemenway, a repatriation expert for the tribe, told the paper.

Get the Story:

Tribes to finally lay ancestors to rest (The Detroit Free Press 7/21)

South Dakota Supreme Court Dismisses ICWA Appeal by Parents for Failure to Serve Notice on Intervening Tribes

Matthew L.M. Fletcher

Here is the opinion in In re B.C.